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03/31/88 Allan H. Schoeberlein, v. Purdue University Et Al.

March 31, 1988

ALLAN H. SCHOEBERLEIN, PLAINTIFF-APPELLANT

v.

PURDUE UNIVERSITY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

521 N.E.2d 1215, 167 Ill. App. 3d 734, 118 Ill. Dec. 522 1988.IL.477

Appeal from the Circuit Court of Kane County; the Hon. James F. Quetsch, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. INGLIS, J., concurs. JUSTICE REINHARD, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Plaintiff, Allan Schoeberlein, appeals from the judgment of the circuit court of Kane County dismissing defendants, Purdue University and its board of trustees, from this action. The trial court determined that defendants, as instrumentalities of the State of Indiana, were not amenable to suit in the circuit court of Illinois.

The sole issue on this appeal is whether an instrumentality of another State is immune from suit in Illinois predicated on a tortious act committed in Illinois.

Plaintiff, who is an Illinois resident, filed an action alleging strict liability against the defendants to recover for injuries he sustained at the Fermi National Accelerator Laboratory in Batavia, Illinois. Defendants allegedly sold Fermi National Accelerator Laboratory defective machinery, a central hadron calorimeter, which fell on the plaintiff during its installation. Plaintiff brought the action in the circuit court of Kane County; defendants removed the cause to Federal court; and by agreement of the parties, the cause was remanded to the circuit court of Kane County. The court granted defendants' motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619), holding that defendants were instrumentalities of the State of Indiana; defendants, as such, were immune from suit in the Illinois courts under the eleventh amendment to the United States Constitution (U.S. Const., amend. XI); and Indiana had not waived its immunity from suits.

On appeal, the parties do not dispute defendants' status as instrumentalities of Indiana. (See Kashani v. Purdue University (7th Cir. 1987), 813 F.2d 843, 845-46.) As agents of the State, the eleventh amendment protects defendants from being sued in a Federal court of another State. (Quern v. Jordan (1979), 440 U.S. 332, 59 L. Ed. 2d 358, 99 S. Ct. 1139.) The eleventh amendment provides:

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." (U.S. Const., amend. XI.)

Under section 34 -- 4 -- 16.5 -- 5(d) of the Indiana Code of Civil Procedure (Ind. Code Ann. 34 -- 4 -- 16.5 -- 5(d) (West 1987)), Indiana has not waived its immunity granted by the eleventh amendment. The statute prohibits suits against it in any State court as well. Pursuant to Indiana law, plaintiff could not bring a suit against defendants in an Illinois court and would be limited to suing in Indiana.

Whether a foreign sovereign is immune from being sued in a State court, contrary to its laws, is a question of the first impression in Illinois. However, we view the Supreme Court's decision in Nevada v. Hall (1979), 440 U.S. 410, 59 L. Ed. 2d 416, 99 S. Ct. 1182, as dispositive of the issue. In Nevada, individual Californians sued a sovereign State, Nevada, in a California State court for injuries resulting from an automobile accident allegedly caused by a State of Nevada employee in California. The California State court refused as a matter of comity to recognize the immunity Nevada would have in its own courts, reasoning that California law did not provide the same immunity. The California law expressed a policy of providing full compensation to injured parties, while the Nevada law reflected a different policy concern, limiting the amount of recovery to $25,000. The Supreme Court concluded that the full faith and credit clause of the Constitution "does not require a State to apply another State's law in violation of its own legitimate public policy." Nevada, 440 U.S. at 422, 59 L. Ed. 2d at 426, 99 S. Ct. at 1189.

We interpret the Nevada holding as permitting the plaintiff to sue defendants in the Illinois circuit court if Illinois' policy so dictates. In our opinion, Illinois has a strong interest in protecting plaintiff, a resident, where the accident and injury occurred within its borders. Illinois even waives its sovereign immunity in order for its residents to recover if notice is given within a year of the occurrence and damages are limited to $100,000. Indiana, however, while permitting a suit against it by its own citizens in its own courts, requires notice within 180 days and permits recovery to $300,000. Illinois' decision to allow suits with notice within one year of the occurrence evidences a legitimate policy to permit more suits against it for lesser amounts than Indiana allows. Illinois' policy is to present a ...


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