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Foster v. Chicago & North West. Trans. Co.

OPINION FILED MAY 23, 1983.

MARSHALL FOSTER, PLAINTIFF-APPELLEE,

v.

CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County; the Hon. William E. Johnson, Judge, presiding.

JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

We granted defendant's petition for leave to appeal under the provisions of Supreme Court Rule 306(a)(1)(ii) (87 Ill.2d R. 306(a)(1)(ii)) from an order of the trial court which denied defendant's motion to dismiss plaintiff's complaint for forum non conveniens.

Relevant facts are gathered from the pleadings and the exhibits attached thereto. Plaintiff is an employee of defendant railroad. His complaint for damages for personal injury was filed in Madison County, Illinois. It alleges that on July 28, 1981, he was injured while on the job at defendant's Clinton, Iowa, car shops and that such injuries were compensable under the provisions of the Federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq. (1976)). Plaintiff is, and was at the time of his alleged injury, a resident of Clinton, Iowa, which is 270 miles distant from Edwardsville, the county seat of Madison County. Defendant railroad is a Delaware corporation with its principal office in Chicago. It has tracks and facilities in both Clinton, Iowa, and Madison County, Illinois, and conducts business at both places. Three witnesses who could testify regarding the accident are William Marcum of Fulton, Whiteside County, Illinois, a city across the Mississippi River from Clinton; Paul Heister of Maquoketa, Iowa, a city approximately 35 miles northwest of Clinton; and L.A. Bengston of Clinton. Following the accident, plaintiff received medical treatment and, subsequently, underwent an operation upon his back. Five doctors were involved in plaintiff's post-accident treatment, one at Davenport, Iowa, three at Dubuque, Iowa, and one at Clinton. Plaintiff's attorney has his office in Madison County, Illinois. Information concerning the time and expense of traveling from Clinton, Iowa, to Edwardsville, Illinois, was furnished by defendant as well as information regarding case filings and dispositions in the circuit court of Madison County. There is some indication in the record that a rehabilitation expert from Chicago would testify for plaintiff at trial.

In its order denying defendant's motion, the trial court found:

"1. That Clinton, Iowa is about 270 miles from the county seat of Madison County, Illinois, and that such distance in this case would not be unduly burdensome.

2. That the only eyewitness to the accident which is the subject matter of the lawsuit resides in Fulton, Illinois. That a rehabilitation expert from Chicago is likely to be a witness. That defendant's attorneys and John H. Caster, who signed defendant's affidavit attached to their motion are all from Chicago. That plaintiff's attorneys are from Madison County, Illinois. That Madison County would not appear to be substantially less accessible than the forum suggested by the defendant. [Clinton, Iowa or Whiteside County, Illinois.]

3. That a view of the scene of the occurrence would mean nothing to the jurors and it is not claimed to be an important factor by any of the parties to this case.

4. That the inventory of cases in the category of this case (law over 15,000-Jury) in Madison County is reducing in the last three (3) years, and that there is no hardship or congestion created by this lawsuit having been filed in Madison County.

5. That considering the foregoing, and the argument of counsel, their briefs and affidavits, and the cases cited and criteria to be considered, the motion should be denied."

Upon the foregoing facts, the parties base their arguments in favor of and in opposition to the motion. The principal cases cited and discussed in the briefs are Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill.2d 111, 427 N.E.2d 111, People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill.2d 90, 383 N.E.2d 977, cert. denied (1979), 441 U.S. 932, 60 L.Ed.2d 660, 99 S.Ct. 2052, Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill.2d 511, 301 N.E.2d 729, Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L.Ed. 1055, 67 S.Ct. 839, and Louisville & Nashville R.R. Co. v. Beatty (7th Cir. 1980), Nos. 80-2604, 80-2605 and 80-2606 (unpublished order). We have examined this case according to the principles discussed in these authorities and conclude that the trial court did not abuse its discretion in denying the defendant's motion to dismiss.

• 1 Our supreme court has stated that unless the balance of relevant factors to be analyzed in a motion to dismiss on forum non conveniens grounds lies strongly in favor of the defendant, the plaintiff's selection of a forum should not be disturbed. (Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill.2d 111, 119, 123, 427 N.E.2d 111, 115, 117.) Among those factors are the relative ease of access to possible sources of proof, the availability of compulsory process, the cost of transportation for witnesses, and the possibility of view of premises, should it be appropriate, as well as the congestion of the court system selected by the plaintiff. Espinosa; Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L.Ed. 1055, 1062-63, 67 S.Ct. 839, 843.

In Espinosa, it was held that the facts presented in that case would have compelled dismissal of the action on forum non conveniens grounds had all relevant information been presented to the trial court. There, the accident which was the subject of the plaintiff's FELA action took place 530 miles from Edwardsville, where he filed suit. No witnesses were subject to Illinois subpoenas and the supreme court took notice of statistics indicating an increasing time period required to litigate a case in the circuit court of Madison County.

• 2 By way of contrast, the accident in the case at bar took place approximately half as far from Edwardsville as did the accident in Espinosa. Moreover, a potentially significant occurrence witness resides in Illinois, and the defendant's principal office, another possible source of information, is located in this State as well. While we acknowledge that this action was brought in the same circuit court found in Espinosa to be subject to a "very serious" delay in processing cases, and that the Iowa forum is available to the plaintiff, the balance of factors is not nearly as strongly in favor of the defendant as it was in Espinosa. We cannot say that this balance so strongly favors the defendant that the trial court's decision to enforce the plaintiff's ...


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