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Satkowiak v. Chesapeake & Ohio Ry. Co.

OPINION FILED APRIL 19, 1985.

PAUL S. SATKOWIAK, APPELLEE,

v.

THE CHESAPEAKE & OHIO RAILWAY COMPANY ET AL. (THE DOW CHEMICAL COMPANY, APPELLANT; THE CHESAPEAKE & OHIO RAILWAY COMPANY, APPELLEE).



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Philip A. Fleischman, Judge, presiding.

JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 31, 1985.

In this case we consider whether the trial court erred in denying the motion of appellant Dow Chemical Company (Dow) to dismiss claims against Dow on the basis of forum non conveniens. In March 1983 appellee Paul Satkowiak (Satkowiak), a Michigan resident, sued the Chesapeake & Ohio Railway Company (C&O), also an appellee, and Dow in separate counts of a two-count complaint in the circuit court of Cook County, for damages arising from an accident which occurred while Satkowiak was working as an employee of C&O on property owned by Dow in Midland, Michigan. Satkowiak's claim against C&O arose under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq. (1982)) and the Safety Appliances and Equipment Act (45 U.S.C. sec. 1 et seq. (1982)); his claim against Dow was based upon Michigan statutory and common law. In May 1983 Dow moved to dismiss the complaint, claiming forum non conveniens. In July 1983 C&O counterclaimed against Dow, and Dow again moved to dismiss the counterclaim on forum non conveniens grounds. The motions were denied by the circuit court. Although the appellate court denied leave to appeal under Rule 306 (87 Ill.2d R. 306), we allowed Dow's petition for leave to appeal to this court (87 Ill.2d R. 315).

Satkowiak alleges that at approximately 1:30 a.m. on February 23, 1982, while working as a brakeman, he slipped and injured his back. Satkowiak was treated that day in Midland and subsequently treated in both Midland and Bay City, Michigan. Satkowiak's only contacts with Illinois are through his attorney, an Illinois resident licensed to practice law in this State, and his consulting physician John Dwyer, to whom he was referred by his attorney.

Although jurisdiction is proper in this case, Illinois courts can decline jurisdiction under the doctrine of forum non conveniens. (Adkins v Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill.2d 511, 514, cert. denied (1976), 424 U.S. 943, 47 L.Ed.2d 349, 96 S.Ct. 1411.) Dow claims that, under our many recent holdings, the circuit court clearly abused its discretion in denying its motion to dismiss. See, e.g., Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill.2d 73; Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill.2d 359; Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill.2d 111.

Forum non conveniens presupposes that there is an alternate forum available; a dismissal would be improper where there is no other forum or where the statute of limitations has run in the alternate forum and the moving party will not agree to waive the statute. (Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill.2d 73, 76; Jones v. Searle Laboratories (1982), 93 Ill.2d 366, 371; People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill.2d 90, 112, cert. denied (1979), 441 U.S. 932, 60 L.Ed.2d 660, 99 S.Ct. 2052.) In this case, there is no indication that both defendants are not amenable to process in Michigan.

Forum non conveniens is primarily a decision of the trial court, and that court's ruling should not be disturbed unless the court has abused its discretion. (Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill.2d 73, 77; People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill.2d 90, 110.) Each case must be considered as unique on its facts. In order to determine whether the circuit court abused its discretion in this case, we consider Dow's arguments in light of the test enunciated in Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L.Ed. 1055, 1062-63, 67 S.Ct. 839, 843.

Dow argues that this is a local Michigan case which should properly be tried in Michigan. Gilbert directs us to first consider various aspects of the private interests involved: "the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive." 330 U.S. 501, 508, 91 L.Ed. 1055, 1062, 67 S.Ct. 839, 843.

In this case, none of the sources of proof are located in Illinois. Satkowiak resides in Bay County, Michigan. All of the known witnesses and all of the relevant documents, with the sole exception of Dr. Dwyer and his records, are in Michigan.

Dow argues that the location of the witnesses in Michigan will cause great inconvenience if the case must be tried in Illinois. (Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill.2d 73, 80; Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill.2d 359, 368-69.) Satkowiak and C&O argue that evidentiary depositions may be used. However, this court has held that evidentiary depositions are not an acceptable substitute for live testimony. Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill.2d 73, 80; Jones v. Searle Laboratories (1982), 93 Ill.2d 366, 374.

Satkowiak and C&O also argue that many of the distant witnesses are their witnesses, and that they will insure that these witnesses are available for trial and will pay the associated costs. They argue, further, that the party moving for a forum non conveniens dismissal should not be heard to complain that the chosen forum is inconvenient for the party choosing the forum, since that party is allowed to inconvenience itself as long as it does not cause hardship or expense to the opposing parties. Borden, Inc. v. Texaco, Inc. (S.D. Ohio 1981), 526 F. Supp. 1291; James v. Norfolk & Western Ry. Co. (S.D. Ohio 1976), 430 F. Supp. 1317.

This argument, however, does not address all of the issues involved. First, Dow's witnesses are also located in Michigan; the cost and inconvenience of bringing these witnesses to Illinois must also be considered. Next, Satkowiak's offer to pay the costs associated with bringing his witnesses to Illinois does not solve all of the practical problems associated with trial in a distant forum. It does not address the difficulties attendant upon a trial in a docket as crowded as Cook County's. Particular witnesses may only be able to appear on particular days, which may not be the same for all witnesses, and most important, which may not fit into the court calendar. When all witnesses are nearby in Illinois, a trial may be squeezed into empty spaces in the court calendar, sometimes with continuances in between. If an unforeseen situation develops in the midst of trial and a continuance is required, the witnesses may all need to be sent home and then returned at a later date. Midland is 283 miles from Chicago. This extra expense and inconvenience should not be imposed on Dow.

Another important factor affecting witnesses is the unavailability of compulsory process. (Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill.2d 73, 80; Jones v. Searle Laboratories (1982), 93 Ill.2d 366, 374.) C&O suggests that it can insure the appearance of witnesses who are C&O employees. Again, this offer leaves unsolved problems. What if Dow wishes to call some of these witnesses as adverse witnesses? Without compulsory process, there is no way to be sure that these individuals will not leave Illinois after they have testified on C&O's behalf. Trial in this case probably will not occur for at least two years, and it is likely that C&O will experience considerable employee turnover during this time. Once an individual leaves the employ of C&O, there is no reason for the witness to voluntarily travel to or remain in Illinois. In fact, there may be pressure from a new employer for the witness not to take the time off from work which is required for a ...


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