Schwalbach v. Millikin Kappa Sigma Corp.
Case Date: 12/20/2005
Court: 5th District Appellate
Docket No: 5-03-0515 NRel
|
NOTICE Decision filed12/16/05. The text ofthis decision may be changed orcorrected prior to the filing of aPetition for Rehearing or thedisposition of the same. NO. 5-03-0515 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT ________________________________________________________________________
JOHN SCHWALBACH and BRENDA ROOSEVELT, ) Appeal from the Individually and as Special Administrators of the ) Circuit Court of Estate of Nicholas Schwalbach, Deceased, and as ) Madison County. Parents and Next Friends of Alex Roosevelt, Catherine ) Roosevelt, and Sophia Schwalbach, Next of Kin of ) Nicholas Schwalbach, Deceased, ) ) Plaintiffs-Appellees, ) ) v. ) No. 01-L-392 ) MILLIKIN KAPPA SIGMA CORPORATION, ) GAMMA-BETA PRIME CHAPTER OF KAPPA ) SIGMA FRATERNITY, KAPPA SIGMA ) FRATERNITY, HARRINGTON SIGNAL, INC., ) POTTER ELECTRIC SIGNAL COMPANY, DALE ) SCHUERMAN, and SCHUERMAN ELECTRONICS, ) Honorable Nicholas G. Byron ) and Honorable A. A. Matoesian, Defendants-Appellants. ) Judges, presiding. ________________________________________________________________________ JUSTICE CHAPMAN delivered the opinion of the court: The plaintiffs, Brenda Roosevelt and John Schwalbach, are the parents of NicholasSchwalbach (Nick), who died in a fire in his university fraternity house. The defendantsappeal an order denying their motions to transfer venue in the plaintiffs' wrongful deathaction from Madison County (the residence of plaintiff Brenda Roosevelt and the county inwhich Nick Schwalbach's estate is being administered) to Macon County (where the incidentoccurred) on grounds of forum non conveniens. We affirm. On June 8, 2000, a fire broke out in the Kappa Sigma fraternity house on the campusof Millikin University. Nick Schwalbach was asleep in his third-floor bedroom when the firebegan. He awoke when heat and smoke from the fire reached the third floor. He attemptedto escape but was trapped. Nick died that day from smoke inhalation. On February 27, 2001, the Madison County circuit court entered an order appointingNick's parents, Brenda Roosevelt and John Schwalbach, as special administrators of theestate of Nicholas Schwalbach. That day, the plaintiffs filed their initial wrongful deathcomplaint naming Millikin Kappa Sigma Corp., the Gamma-Beta Prime Chapter of KappaSigma Fraternity, and the Kappa Sigma Fraternity as defendants (collectively referred to asthe fraternity). The plaintiffs later filed an amended complaint adding Harrington Signal,Inc. (Harrington Signal), the manufacturer of a fire alarm that they alleged did not functionproperly on the morning of the fire, contributing to Nick's death. The fraternity andHarrington Signal each filed a motion to transfer the cause to Macon County, contendingboth that venue was not proper in Madison County and that Macon County was a moreconvenient forum. The court denied the motions in February 2002, and the defendantsappealed. On May 29, 2002, while that appeal was pending, the plaintiffs filed another wrongfuldeath petition in Madison County, naming as defendants Potter Electric Signal Company(Potter) (which they had learned through discovery might have been the manufacturer of thealarm), Schuerman Electronics (the distributorship that sold the alarm to the fraternity), andDale Schuerman (the owner of Schuerman Electronics and the individual who installed thealarm at the fraternity house). On February 19, 2003, this court reversed the trial court'sorder denying the original defendants' motions to transfer venue. Schwalbach v. MillikinKappa Sigma Corp., No. 5-02-0217 (2003) (unpublished order pursuant to Illinois SupremeCourt Rule 23 (166 Ill. 2d R. 23)). We held that venue was not proper in Madison Countybecause none of the original defendants were doing business in Madison County within themeaning of the venue statute (735 ILCS 5/2-101 (West 2000)). On March 12, 2003, the plaintiffs filed a motion to consolidate their suit against thefraternity and Harrington Signal with their suit against Potter, Schuerman Electronics, andDale Schuerman. The trial court entered an order consolidating the two cases on April 11,2003. On April 25, the fraternity filed a renewed motion to transfer venue to Macon Countyon grounds of forum non conveniens. On July 23, 2003, the court denied all the pendingmotions to transfer. The defendants filed petitions for leave to appeal pursuant to Supreme Court Rule306(a)(2) (166 Ill. 2d R. 306(a)(2)). On October 2, 2003, we denied their petitions for leaveto appeal. However, on January 28, 2004, the Illinois Supreme Court entered supervisoryorders directing us to vacate our October 2 order and consider the defendants' forum nonconveniens arguments on their merits. Schwalbach v. Millikin Kappa Sigma Corp., 207 Ill.2d 627, 628, 628, 802 N.E.2d 257, 258, 258 (2004) (supervisory orders). The fraternity and Harrington Signal filed separate briefs in this case. Potter adoptedthe briefs of both the fraternity and Harrington Signal. The defendants who filed briefs madeessentially identical arguments. Thus, we will refer to the defendants' argumentscollectively. We now turn to the merits of the defendants' appeal. The defendants contend that the court abused its discretion in denying their motionsto transfer venue to Macon County. The trial court enjoys broad discretion in ruling on aforum non conveniens motion, and we will not reverse its order absent an abuse of thatdiscretion. First American Bank v. Guerine, 198 Ill. 2d 511, 515, 764 N.E.2d 54, 57 (2002);Boner v. Peabody Coal Co., 142 Ill. 2d 523, 527-28, 568 N.E.2d 883, 885 (1991). Applyingthis standard, we disagree with the defendants' contention. Forum non conveniens is an equitable doctrine under which a court may, inexceptional circumstances, decline to exercise jurisdiction over a case if the defendant canshow that another forum would be more convenient. Guerine, 198 Ill. 2d at 515, 764 N.E.2dat 57. The same body of law governs both motions to dismiss on the grounds that a moreconvenient out-of-state forum exists (interstate motions) and motions to transfer to a moreconvenient forum within Illinois (intrastate motions). Dawdy v. Union Pacific R.R. Co., 207Ill. 2d 167, 176, 797 N.E.2d 687, 696 (2003). In deciding whether to grant a forum non conveniens motion, courts must weigh allthe relevant factors, both public and private. The private-interest factors to be consideredinclude (1) the convenience of the parties, (2) access to witnesses and sources of evidence,and (3) all other practical problems that make trying a case expeditious, easy, or inexpensive. The last factor includes such considerations as the cost of securing the attendance of willingwitnesses, the availability of service of process to secure the attendance of unwillingwitnesses, and the ability to view the location where the events at issue took place (ifappropriate). Guerine, 198 Ill. 2d at 516, 764 N.E.2d at 58. The public-interest factorsinclude (1) the interest in deciding localized controversies locally, (2) the unfairness ofimposing the burden of jury duty or the expense of a trial on a county with no connection tothe controversy, and (3) the relative congestion of the dockets in the proposed alternativefora. Guerine, 198 Ill. 2d at 516-17, 764 N.E.2d at 58. Trial courts are to consider all theseinterests and determine whether, on the whole, they strongly favor a transfer or dismissal. Guerine, 198 Ill. 2d at 518, 764 N.E.2d at 59. No one factor is decisive or should be accorded primary emphasis in the analysis. Dawdy, 207 Ill. 2d at 180, 797 N.E.2d at 698. The plaintiff's choice of forum is, however,an important consideration always entitled to some deference. Where the plaintiff's choiceof forum is neither the situs of the events at issue in the litigation nor the plaintiff's homecounty, it is entitled to less deference than it normally merits. Dawdy, 207 Ill. 2d at 173-74,797 N.E.2d at 694. While courts do not condone "forum-shopping", we recognize that bothplaintiffs and defendants engage in the practice with equal fervor. Dawdy, 207 Ill. 2d at 174,797 N.E.2d at 694; Guerine, 198 Ill. 2d at 521, 764 N.E.2d at 61. Thus, the plaintiff'ssubstantial right to choose the forum for the action is always an important consideration(Guerine, 198 Ill. 2d at 518, 764 N.E.2d at 59) even though it does not always outweigh theother factors (Guerine, 198 Ill. 2d at 521, 764 N.E.2d at 61). We first address what we consider to be the two most relevant factors under the factsbefore us–the plaintiffs' choice of forum and the respective interests of Macon and MadisonCounties in resolving this conflict locally. As previously noted, the plaintiffs' chosen forumis always entitled to at least some deference. How much deference depends on whether itis the plaintiffs' home county. In this case, the plaintiffs chose Madison County, which isBrenda Roosevelt's home county, while the defendants argue that Macon County, which isJohn Schwalbach's home county, is the more convenient forum. In determining the deference to be accorded the plaintiffs' choice, we find it helpfulto consider the rationale behind the rule. When plaintiffs choose their home county as aforum for their suit, it is reasonable to assume that they have done so because their homecounty is a convenient forum. Dawdy, 207 Ill. 2d at 173, 797 N.E.2d at 694; Guerine, 198Ill. 2d at 517, 764 N.E.2d at 59. It is precisely because this assumption loses much of itsforce when a plaintiff chooses a distant county that such a choice merits less deference. Dawdy, 207 Ill. 2d at 173-74, 797 N.E.2d at 694. Because a defendant cannot argue forumnon conveniens on the grounds that the forum is inconvenient to one of the plaintiffs whochose that forum (see Guerine, 198 Ill. 2d at 518, 764 N.E.2d at 59), we do not find itparticularly significant that John Schwalbach lives in the county the defendants argue is themore convenient forum. (We note that in assessing the two counties' comparative interestsin resolving the litigation, this fact will have some relevance, but we do not think it shouldhave any impact on the deference to be accorded to the plaintiffs' choice of forum.) The defendants argue, however, that in a wrongful death action such as this, theplaintiffs are suing primarily in a representative capacity. Thus, the defendants contend, theplaintiffs' choice of Brenda Roosevelt's home county as a forum for their suit is entitled tolittle if any deference. In support of their contention, they cite Moore v. Chicago & NorthWestern Transportation Co., 99 Ill. 2d 73, 457 N.E.2d 417 (1983). There, the plaintiffbrought a wrongful death action in Cook County after his daughter had been killed in a car-train collision in Wisconsin. Moore, 99 Ill. 2d at 78, 457 N.E.2d at 419. In concluding thatthe trial court abused its discretion in denying the defendant's motion to dismiss on groundsthat Wisconsin was the more convenient forum, the Illinois Supreme Court stated: "In lightof the representative capacity in which plaintiff here acts, his residency [in Cook County]has no relationship to the litigation except as a nominal party. Thus, under the facts of thiscase, plaintiff's choice of Cook County, Illinois, is of minimal significance." (Emphasisadded.) Moore, 99 Ill. 2d at 79, 457 N.E.2d at 420. We find an examination of the context in which the Illinois Supreme Court made thispronouncement illuminating. In Moore, it was undisputed that the decedent was a residentof Wisconsin at the time of her death and that Wisconsin was the situs of the accident. Itwas also undisputed that her surviving children, the paramedics and physicians who treatedher, and all the potential witnesses identified by either party lived in Wisconsin. Furthermore, the parties agreed that Wisconsin law applied to the dispute. Moore, 99 Ill. 2dat 78-79, 457 N.E.2d at 419-20. Most significantly, the plaintiff in Moore was appointed as the administrator of thedecedent's estate by a Wisconsin court. Moore, 99 Ill. 2d at 78, 457 N.E.2d at 419. If hewished to settle his wrongful death claim, he would require authorization from the Wisconsincourt administering the decedent's estate. He would also have to account to that court for anysums received, through either a settlement or a judgment, in the wrongful death action. Moore, 99 Ill. 2d at 79, 457 N.E.2d at 420. Although the supreme court does not say so, wethink these facts mitigate against the usual assumption that the plaintiff's home forum waschosen for its convenience. The circumstances present here are quite different. For one thing, the MadisonCounty court would not be required to apply the law of another state. Further, as we willdiscuss in more detail later, there are witnesses scattered throughout the state and around thecountry. Most importantly, however, the plaintiffs are not suing on behalf of an out-of-stateresident with no ties of his own to Madison County. Rather, they are suing on behalf of a20-year-old university student who had strong ties to both Madison and Macon Counties. Naturally, the plaintiffs argue that Nick was a resident of Madison County, while thedefendants contend that he was a resident of Macon County. Both sides support theircontentions with evidence in the record from which we might try to infer that Nick regardedone place or the other as "home". The defendants point to the allegation in the plaintiffs'complaint that Nick "was a resident of" the Kappa Sigma fraternity house when the fire thatkilled him erupted (conveniently overlooking the fact that the complaint also alleges thatNick was a resident of Madison County prior to his death). The plaintiffs point to W-2 formson which Nick gave Brenda Roosevelt's Glen Carbon address as his home address and anemail he sent to his father the day before the fire stating that he was going to go "home" toGlen Carbon for the weekend. Illinois courts generally construe the term "resident" to mean the place where anindividual intends to live on a permanent basis. The subjective intent of the person whoseresidence is at issue controls the determination. Webb v. Morgan, 176 Ill. App. 3d 378, 386,531 N.E.2d 36, 41 (1988). Obviously, Nick could not have intended to remain in auniversity fraternity house on a permanent basis. Such housing is, by definition, temporary. Perhaps he enjoyed living in Decatur and hoped to remain there upon graduation; perhapshe hoped to return to Glen Carbon, where he had grown up and still had friends. Perhaps hehoped to move elsewhere. As a practical matter, most 20-year-old university students do notknow where they will live on a permanent basis after graduation. Fortunately, however, weneed not ascertain Nick's subjective intent in order to determine his residence. Once aresidence is established, it is presumed to continue, and a person only establishes a newresidence if that person physically moves to a new home and lives there intending to makeit his permanent home. Webb, 176 Ill. App. 3d at 386, 531 N.E.2d at 41. Unless such achange of residence has been established, a person does not lose his original residence. Webb, 176 Ill. App. 3d at 386, 531 N.E.2d at 41. Prior to attending college, Nickunquestionably resided with his mother, Brenda, in Glen Carbon. Thus, he was a MadisonCounty resident at that time. For the reasons discussed, we do not think the record containsany evidence to demonstrate that Nick had acquired a new residence. He was thus aMadison County resident at the time of his death. Quite unlike Moore, we are faced here with representative plaintiffs who have chosento sue in the decedent's home county. Nick's estate is being administered in Madison County,which is the proper forum for that proceeding (see 755 ILCS 5/5-1 (West 2000)). Aspreviously noted, the supreme court in Moore pointed to some of the problems posed bymaintaining a wrongful death action in a forum other than the forum that was administeringthe decedent's estate. Here, unlike there, the plaintiffs will not have to seek authorizationfrom a distant court to settle with the defendants, nor will they have to account to that courtfor any recovery. The factors that made the plaintiff's choice of his home forum in Moore"of minimal significance" are not present here. Thus, we find that the plaintiffs' choice offorum is entitled to substantial deference and that a transfer is not warranted unless thedefendants can show that the other factors greatly outweigh the plaintiffs' interest in choosinga forum. The other most relevant factor is the comparative interests of the parties' chosenforums in resolving the litigation. The defendants argue that Macon County, as the situs ofthe fire, has a strong interest in resolving an inherently localized conflict. They argue thatMacon County's interest is particularly strong because Nick died in a fire. This, they argue,implicates the enforcement of local fire codes and building codes. They also argue thatMacon County's interest in keeping the campus of Millikin University safe is particularlystrong in light of the dominant role the university plays in the local economy. We find manyof these points persuasive. However, while we agree that Macon County's interest in thelitigation is quite strong, we also believe that the defendants overstate the extent to which thecontroversy is inherently local in flavor and grossly understate the interest Madison Countyalso has in resolving the conflict. Millikin University is a private, four-year university providing education to studentsfrom all over the state and country. Perhaps the people with the strongest interest in makingsure Millikin University's campus remains safe are its current and future students and theirparents, who are scattered throughout Illinois and the rest of the country. This does notnegate Macon County's interest in resolving the issues presented. Macon County has astrong interest in the safety of Millikin University students while they make Macon Countytheir temporary home. As the defendants contend, many of these students are actually fromMacon County and many remain there after graduation. Moreover, localities have an interestin protecting the safety of even visitors who are just passing through. Further, as thedefendants argue, Macon County has an interest in the enforcement of local building codesand fire regulations, which are implicated in the instant action. These interests areundeniably strong. However, the fact that the fire occurred on the campus of a universityprimarily catering to temporary residents of Macon County makes the controversy somewhatless local in flavor than it might have been if the fire had occurred, for example, in anapartment building housing mainly permanent Macon County residents. It is also worthnoting that the plaintiffs' complaint contains claims for product liability, alleging that the firealarms in the Kappa Sigma house did not function properly. The Illinois Supreme Court hasrecognized that product liability claims are not inherently local in nature, even when broughtin conjunction with claims for negligence involving more localized incidents. See Guerine,198 Ill. 2d at 525, 764 N.E.2d at 63. The defendants discount Madison County's interest in resolving the litigation, arguingthat Macon County's interest in the litigation "trumps any general interest arguably held byMadison County". We find this argument unduly dismissive of Madison County's verylegitimate interest in the litigation. Nick was a Madison County resident. Madison County'sinterest in providing a forum in which his claim can be resolved is far more tangible than thekinds of "general interest" courts typically find too limited to support venue in a forum. See,e.g., Dawdy, 207 Ill. 2d at 182-83, 797 N.E.2d at 699 (finding that the fact that the defendantrailroad conducted business in Madison County and some of the witnesses worked thereprovided the forum with too tenuous an interest in the litigation where the plaintiff was anonresident and the accident occurred elsewhere); Washington v. Illinois Power Co., 144 Ill.2d 395, 403, 581 N.E.2d 644, 647 (1991) (noting that any county to which the utilitycompany defendant provides service has some interest in the litigation but finding suchinterest insufficient where the plaintiff was a nonresident and the accident occurredelsewhere). Moreover, the defendants' arguments overlook the fact that, while this action clearlyimplicates Macon County's interest in enforcing its fire and building regulations and keepingthe campus of Millikin University safe, it is primarily about redressing the wrong alleged bythese plaintiffs. Both counties have an interest in providing a forum to Nick's survivingfamily members (his parents and siblings live in both counties), but it is Madison County thathas the stronger interest in providing a forum to resolve Nick's claim. On the whole, we findthat this factor favors Macon County, although not to the overwhelming degree thedefendants suggest. We next consider the remaining public-interest factors. Those include the unfairnessof imposing the burden of jury duty and the expense of a trial on a county with no connectionto the controversy and the relative congestion of the dockets in the alternative fora. Aspreviously noted, both counties have substantial connections to this litigation. It would notbe unfair to impose the burden of jury duty or the expense of a trial on either forum. Thisfactor thus favors neither forum. As far as the relative court congestion, the defendants argue that Madison County isthe more congested forum, pointing to a statistical summary of Illinois courts which showsthat 3,545 civil jury cases involving more than $50,000 were pending in Madison County in2000 while only 282 such cases were pending in Macon County. Administrative Office ofthe Illinois Courts, 2000 Annual Report of the Illinois Courts, Statistical Summary 18, 21. The plaintiffs point to statistics from the 2002 Annual Report of the Illinois Courts showingthat the average time from filing to verdict in Madison County at that time was 26.7 monthswhile the average time in Macon County was 28.8 months. Administrative Office of theIllinois Courts, 2002 Annual Report of the Illinois Courts, Statistical Summary 56. Webelieve that the statistics given by the plaintiffs provide a more relevant assessment of thecongestion than the raw numbers of cases of one specific type that were pending at a givenpoint in time. Obviously, the more populous a county, the more cases that will be filed there. If a more populous county also has more resources in the court system so that the cases canbe heard as quickly as–or perhaps even more quickly than–those filed in a less populouscounty, its dockets can hardly be said to be more crowded than those in the less populouscounty, even though more cases are filed. On average, it takes two months longer for a caseto go from filing to verdict in Macon County than in Madison County. Thus, this factorslightly favors Madison County. We next turn to the relevant private-interest factors. Those are the convenience of theparties, access to witnesses and other sources of evidence, and all other practicalconsiderations that make trying a case easy, expeditious, or inexpensive. With respect to the convenience of the parties, the burden is on the defendants todemonstrate that the plaintiffs' chosen forum is inconvenient to them and that another forumis more convenient to all the parties. Dykstra v. A.P. Green Industries, Inc., 326 Ill. App.3d 489, 493, 760 N.E.2d 1034, 1037-38 (2001). The defendants have failed to meet thisburden. Conspicuously absent from both of the briefs submitted by the defendants is anyargument that Madison County was an inconvenient forum for the defendants as parties. Furthermore, even if the defendants had not waived a consideration of any claimedinconvenience to them of a Madison County trial (see 188 Ill. 2d R. 341(e)), we find thatthey failed to meet their burden on this issue in the trial court as well. The only defendantwho argued to the trial court that the Madison County forum would be inconvenient wasDale Schuerman, the proprietor of Schuerman Electronics. At the forum non convenienshearing, his attorney explained to the court that Schuerman Electronics was a soleproprietorship and that only Schuerman and his son performed service calls to customers inthe Decatur area. Because there were no other employees to cover for Schuerman, attendinga Madison County trial would be burdensome to him. Counsel for Schuerman andSchuerman Electronics, however, adopted the arguments set forth in the briefs of HarringtonSignal and the fraternity, which contain no similar arguments. (Harrington Signal does arguethat any of its employees required to be witnesses would need to travel further from itsMoline, Illinois, headquarters to Madison County than to Macon County, however.) Moreover, from the evidence in the record, it appears that Macon County is likely themore convenient forum for two of the four separate defendants while Madison County ismore convenient for the other defendants and the plaintiffs. The Millikin University chapterof the Kappa Sigma Fraternity was disbanded after the fire. The national Kappa SigmaFraternity organization has its headquarters in Virginia. Any representatives of thatorganization attending the trial would be required to fly to Illinois to do so, and the presenceof Lambert-St. Louis International Airport directly across the river from Madison Countymakes that a more convenient location for them. Potter is a Missouri corporation. Althoughthe record does not disclose its precise location, some discussion at the hearing indicated thatPotter is located somewhere in the St. Louis metropolitan area, making Madison County themore convenient forum for Potter as well. As noted, Dale Schuerman, who is both a named defendant and the sole representativeof defendant Schuerman Electronics, lives and does business in Macon County, which is themore convenient forum for him. Finally, Harrington Signal is located in Moline, Illinois. The driving time from Moline to Decatur, where the Macon County court is located, isapproximately one hour less than the driving time from Moline to Edwardsville, where theMadison County court is located. A trial in either county would inconvenience therepresentatives of Harrington Signal by requiring them to take an entire day out of theirschedules to attend the trial. However, a Madison County trial would require more drivingtime and greater expense for gas, so Macon County would be somewhat more convenient forthis defendant. As previously noted, Brenda Roosevelt lives in Madison County, John Schwalbachlives in Macon County, and both are administering Nick's estate in Madison County. Madison County is undoubtedly the more convenient forum for Brenda. The need to accountto one court for proceedings in another makes Macon County inconvenient for both of them;moreover, to the extent that a drive from Decatur to Edwardsville for a trial mightinconvenience John Schwalbach, the defendants cannot argue that the cause should betransferred because it is inconvenient to one of the plaintiffs. On balance, we find that thisfactor favors Madison County. We next consider access to witnesses and other evidence. The defendants point toseveral potential witnesses who live in Macon County. These witnesses include firefighterswho responded to the fire, campus officials, and fraternity members who lived in the KappaSigma house on the morning of the fire. The plaintiffs point out, however, that all thefraternity members who were present that morning have long since graduated and moved onto pursue their careers. Only four of them remain in Macon County. The others havescattered around the country. Moreover, the plaintiffs point out that one of the young menwith the most relevant knowledge lives in St. Louis, which is adjacent to Madison County. The plaintiffs also intend to call 12 witnesses of their own who live in Madison County,including the family doctor who was Nick's primary care doctor for many years. The defendants argue that the plaintiffs should not be allowed to support their choiceof forum with the fact that fraternity members who witnessed the fire have graduated andmoved on from Macon County because, had the case been filed there in the first place, thestudents would still be in Macon County. We disagree. One of the students present at thefraternity house on the night of the fire was a first-year student, due to graduate in May 2004. The remaining students were due to graduate earlier. The plaintiffs filed this case onFebruary 27, 2001. As previously noted, the average time it takes a case to go from filingto verdict in Macon County is 28.8 months. Assuming the plaintiffs had filed this case inMacon County on February 27 and it took no more time than average to come to trial, itlikely would have been tried sometime in June or July of 2003. At that point, all but one ofthe students present on the morning of the fire would have graduated and moved on. The defendants also argue that the presence of witnesses for the plaintiffs in MadisonCounty should be given little weight because they are not occurrence witnesses. Theplaintiffs' Madison County witnesses include the family doctor who treated Nick and otherswho knew him. These witnesses were relevant to the loss of Nick's society, comfort, andcompanionship to his family, an element of damages that the plaintiffs will be required toprove. His family doctor's testimony is relevant to his life expectancy. The defendants'argument is premised on the notion that hypothetically a plaintiff can choose a treatingphysician to treat an injury alleged in a suit or an expert witness on the basis of his or herlocation in order to establish venue. While it is true that the plaintiffs have somewhat morecontrol over the damages witnesses they choose to call than either party has over occurrencewitnesses, we think it is to be expected that the people with the most relevant testimony ondamages in a wrongful death action involving a young college student will be people wholive near his family home. We agree with the plaintiffs that it is simply ludicrous to suggestthat Brenda Roosevelt chose her son's primary care doctor with an eye on any futurelitigation. On balance, we do not think this factor strongly favors either forum. Finally, we consider the practical problems that make a trial expeditious, inexpensive,or easy to try. The plaintiffs point out that it likely will be difficult to pick a jury in MaconCounty because the fraternity fire received a great deal of publicity there and a significantportion of the population of Macon County has ties to Millikin University. This problemobviously makes it less expeditious to try the case there. The defendants, however, emphasize the possibility of a jury view of the fraternityhouse. Obviously, if the trial is held in Madison County, it will be significantly moreburdensome for a jury to view the site where the fire occurred than it would be if the trialwere held in Macon County. However, the fraternity house burned in a fire and wasthereafter rebuilt and remodeled. Photographs and building plans that show the house as itwas on the morning of the fire will be far more relevant to the jury (as well as moreconvenient) regardless of where the trial is held. The defendants point to language in Dawdyin which the supreme court chastised this court for discounting the possibility of a jury viewwhere we found that nothing in the record indicated that a jury view was necessary. Dawdy,207 Ill. 2d at 178, 797 N.E.2d at 697 (noting that this factor "is not concerned with thenecessity of viewing the site of the injury[] but rather is concerned with the possibility ofviewing the site, if appropriate" (emphases in original)). We do not read this language torequire us to give much weight to this factor anytime a jury view is theoretically possible,no matter how unlikely it would be for a trial court to find a jury view appropriate. Indeed,such an interpretation would be at odds with the Dawdy court's admonition that no one factorshould be determinative. See Dawdy, 207 Ill. 2d at 180, 797 N.E.2d at 698. On the whole,we think this factor favors Madison County. Considering the totality of the circumstances, we do not find that these factorsstrongly favor either forum over the other. As previously explained, when a plaintiff haschosen her home county as a forum, as Brenda Roosevelt has done here, that choice isentitled to great deference. Moreover, the trial court enjoys broad discretion in ruling onforum non conveniens motions. The court abuses this broad discretion only where noreasonable person could take the view adopted by the trial court. Dawdy, 207 Ill. 2d at 177,797 N.E.2d at 696. In Dawdy, the supreme court found that this standard had been met ina case where the plaintiff's chosen forum was neither his home county nor the situs of theaccident at issue. Dawdy, 207 Ill. 2d at 184-85, 797 N.E.2d at 700-01. That is not the casehere. The plaintiffs chose to bring their case in the home county of both the decedent andone of the plaintiffs, and the trial court found that the convenience factors do notoverwhelmingly favor a transfer to Macon County. This conclusion is entirely reasonable. Thus, we find no abuse of discretion. For the foregoing reasons, we affirm the trial court's order denying the defendants'motions to transfer.
Affirmed.
HOPKINS and WELCH, JJ., concur. NO. 5-03-0515 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT ___________________________________________________________________________________
JOHN SCHWALBACH and BRENDA ROOSEVELT,) Appeal from the Individually and as Special Administrators of the ) Circuit Court of Estate of Nicholas Schwalbach, Deceased, and as ) Madison County. Parents and Next Friends of Alex Roosevelt, Catherine) Roosevelt, and Sophia Schwalbach, Next of Kin of ) Nicholas Schwalbach, Deceased, ) Plaintiffs-Appellees, ) v. ) No. 01-L-392 MILLIKIN KAPPA SIGMA CORPORATION, ) GAMMA-BETA PRIME CHAPTER OF KAPPA ) SIGMA FRATERNITY, KAPPA SIGMA ) FRATERNITY, HARRINGTON SIGNAL, INC., ) POTTER ELECTRIC SIGNAL COMPANY, DALE ) Honorable Nicholas G. Byron SCHUERMAN, and SCHUERMAN ELECTRONICS,) and Honorable A. A. Matoesian, Defendants-Appellants. ) Judges, presiding. ___________________________________________________________________________________
Opinion Filed: December 16, 2005 ___________________________________________________________________________________
Justices: Honorable Melissa A. Chapman, J.
Honorable Thomas M. Welch, J., and Honorable Terrence J. Hopkins, J., Concur ___________________________________________________________________________________
Attorneys Karen L. Kendall, Brad A. Elward, Heyl, Royster, Voelker & Allen, Suite 600, for Bank One Bldg., 124 S.W. Adams Street, Peoria, IL 61602; Frederick P. Velde, Appellants Matthew R. Booker, Heyl, Royster, Voelker & Allen, One North Old State Capitol Plaza, Springfield, IL 62701 (Attorneys for Gamma-Beta Prime Chapter of KappaSigma Fraternity, Kappa Sigma Fraternity, Millikin Kappa Sigma Corp.)
William P. Hardy, Hinshaw & Culbertson, 400 South Ninth Street, Suite 200,Springfield, IL 62701; John E. Sabo, Hinshaw & Culbertson, 521 West Main Street,Suite 300, P.O. Box 509, Belleville, IL 62222 (Attorneys for Harrington Signal, Inc.)
Kenneth L. Halvachs, Gundlach, Lee Eggmann, Boyle & Roessler, 5000 West MainStreet, P.O. Box 23560, Belleville, IL 62226-0560 (Attorney for Potter Electric SignalCompany)
Cristina Mungai, Stefanie R. Glover, Johnson & Bell Ltd., 55 East Monroe Street,Suite 4100, Chicago, IL 60603-5803 (Attorneys for Dale Schuerman) ___________________________________________________________________________________
Attorneys R. Gerald Barris, Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., 800 Illinois for Building, P.O. Box 5131, Springfield, IL 62705; Robert W. Rongey, Callis Papa Appellees Jackstadt Szewszyk Rongey & Sanzinger, P.C., 1326 Niedringhaus Avenue, P.O. Box 1326, Granite City, IL 62040 ___________________________________________________________________________________ |