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02/20/87 Francis E. Bland, v. Norfolk and Western

February 20, 1987

FRANCIS E. BLAND, APPELLEE

v.

NORFOLK AND WESTERN RAILWAY COMPANY, APPELLANT



SUPREME COURT OF ILLINOIS

506 N.E.2d 1291, 116 Ill. 2d 217, 107 Ill. Dec. 236 1987.IL.192

Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County, the Hon. William E. Johnson, Judge, presiding.

APPELLATE Judges:

JUSTICE WARD delivered the opinion of the court. JUSTICE GOLDENHERSH, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD

The plaintiff, Francis E. Bland (Bland), brought an action under the Federal Employers' Liability Act (45 U.S.C. sec. 51 et seq. (1976)) in the circuit court of Madison County against the defendant, Norfolk and Western Railway Company (Norfolk), to recover for personal injuries suffered during the course of his employment with the defendant. Norfolk moved to transfer the case to Macon County on the ground of forum non conveniens. After the circuit court of Madison County denied the motion, the defendant appealed to the appellate court, which, with one Justice Dissenting, affirmed the circuit court's denial (140 Ill. App. 3d 862). We granted the defendant's petition for leave to appeal under our Rule 315 (103 Ill. 2d R. 315).

The plaintiff's complaint alleged that on or about November 19, 1982, he was injured on the platform of one of Norfolk's tank cars while employed by Norfolk as a brakeman. According to the complaint, the car was making a delivery for the defendant at the A. E. Staley plant in Decatur, Macon County, when the catwalk and grab bar on the car came loose, violently jerking the plaintiff and causing injury. Count I of the complaint was based on the provisions of the Federal Employers' Liability Act (45 U.S.C. sec. 51 et seq. (1976)) and count II, on the Safety Appliance Act (45 U.S.C. sec. 1 et seq. (1976)). The complaint set out that Norfolk is a corporation owning and operating diverse equipment, yards and rights-of-way in and about Madison County.

The defendant filed a motion to transfer venue from Madison County to Macon County under the doctrine of forum non conveniens. While conceding that jurisdiction and venue were proper in Madison County, the defendant argued that all of the relevant connections with the plaintiff's suit are in Macon County and that the case can be more conveniently tried in that county. In support of its motion under forum non conveniens, the defendant set out that the plaintiff's injuries occurred in Macon County; that the plaintiff is a resident of Macon County; that all of the proposed occurrence witnesses, who were named, are employed in Macon County; and that Macon County is approximately 100 miles from Edwardsville, the county seat of Madison County. The defendant stated that trial in Madison County would subject it to unnecessary investigation and discovery expenses and that it would be extremely costly to bring its witnesses for trial in Madison County. In addition, the defendant asked the circuit court to take judicial notice of the congested condition of the Madison County docket, referring to the 1982 annual report of the Administrative Office of Illinois Courts, which indicated that the average time lapse between filing a complaint and verdict in Madison County is 34.1 months.

The plaintiff filed a motion and a responsive affidavit in which he states that he is being treated by two physicians whose offices are in Madison County and that he performs switching operations for Norfolk in Madison County "from time to time."

The circuit court denied the defendant's motion, indicating that Macon County was "too close" to Madison County to require transfer of the the case. The court noted that several other factors favored retaining the case in Madison County, including the plaintiff's statement that two of his treating physicians have offices in Madison County; that the plaintiff performs switching operations in Madison County; and that Norfolk has "substantial facilities" in Madison County. The court rejected the defendant's argument that the docket of the Madison County circuit court is unduly congested, stating its opinion that "any case can be reached for trial within 2 years of filing" and that "[a]ny delay beyond 2 years would be delay caused by the parties rather than court congestion."

In affirming the trial court's decision, the appellate court stated, inter alia, that the record failed to support the defendant's assertions that it would incur additional cost and inconvenience in defending the action in Madison County.

The question for us is whether the circuit court's denial of the defendant's forum non conveniens motion was an abuse of discretion. Although broad discretion is vested in the trial court in determining whether particular circumstances require transfer of a cause under forum non conveniens, that court's decision will be reversed on review if it can be shown that, in deciding as it did, the court abused discretion. Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 117-18; People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 110.

Given the circumstances here, we consider that the circuit court abused its discretion in denying the defendant's motion to transfer to Macon County. A trial in Macon County would better "serve the convenience of the parties and the ends of Justice." Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 606; Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514.

Forum non conveniens is an equitable doctrine. It presupposes the existence of more than one forum with jurisdiction over the parties and the subject matter. (Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 364; People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 112.) Under the doctrine, a court may decline to exercise jurisdiction of a case whenever it appears that there is another forum with jurisdiction of the parties in which trial can be more conveniently had. Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514; Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 76.

In deciding whether the doctrine applies, a court must balance private interest factors affecting the convenience of the litigants and public interest factors affecting the administration of the courts. See Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843.

Factors relating to the private interests of the litigants include 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." Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508, 91 L. Ed. 1055, 1062, 67 S. Ct. 839, 843.

Public factors relevant here include the administrative difficulties flowing from court congestion; "a local interest in having localized controversies decided at home"; and the unfairness of burdening citizens in an unrelated forum with jury duty. Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 509, 91 L. Ed. 1055, 1063, 67 S. Ct. 839, 843. See also Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 118; Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 372-73; Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 118-19; People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 110-11.

In Torres v. Walsh (1983), 98 Ill. 2d 338, this court held that forum non conveniens is applicable on an intrastate as well as on an interstate basis. That is, the doctrine may be applied where the choice is between forums in the same State as well as when the choice is between forums in more than one State. The court stated that the same considerations of convenience and fairness are applicable in deciding the question of the forum for trial: "the availability of an alternate forum, the access to sources of proof, the accessibility of witnesses, the relative ...


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