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08/05/88 Disabled Person, v. the Village of Skokie Et

August 5, 1988

DISABLED PERSON, PLAINTIFF-APPELLANT

v.

THE VILLAGE OF SKOKIE ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION IRVING R. ZIMMERMAN, as Guardian for Scott E. Zimmerman, a

529 N.E.2d 599, 174 Ill. App. 3d 1001, 124 Ill. Dec. 618 1988.IL.1226

Appeal from the Circuit Court of Cook County; the Hon. Thomas B. Quinn, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LORENZ delivered the opinion of the court. SULLIVAN and PINCHAM, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

Plaintiff appeals from an order denying his petition pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401) to vacate a dismissal order. The order was entered against plaintiff pursuant to Illinois Supreme Court Rule 219 (107 Ill. 2d R. 219) for his failure to produce his son Scott Zimmerman (Scott) for deposition and his failure to respond to defendants' written discovery as required by court orders. We consider the following three issues: (1) whether the trial court abused its discretion when it denied plaintiff's petition; (2) whether the requirement of due diligence should be relaxed when the interests of a mentally disabled person are at stake; and (3) whether a mentally disabled person should be held to the consequences of his attorney's negligence. We vacate the order denying plaintiff's section 2-1401 petition and remand for reasons hereinafter set forth.

Pertinent to our Disposition are the following facts.

On July 25, 1982, Scott was arrested for disorderly conduct and held in custody at the Skokie police department. Shortly after he was placed in a jail cell, he was found hanging by his trousers. After police officers resuscitated him, he received medical treatment. However, due to blood loss to the brain, Scott suffered brain damage.

On January 18, 1983, on plaintiff's petition to the probate court, Scott was declared a disabled person based on the court's finding that he suffers from "atypical mixed organic disorder with psychosis." Plaintiff was appointed plenary guardian of his estate and person.

On February 23, 1983, plaintiff filed this action seeking damages on Scott's behalf for personal injuries sustained as a result of the suicide attempt and alleged defendants are liable due to their willful and wanton conduct.

On May 24, 1983, defendants filed their first set of interrogatories and request for production to be answered in 28 days but plaintiff did not comply. On August 24, 1983, an order was entered requiring plaintiff to comply with written discovery. On November 1, 1984, defendants sent a letter to plaintiff pursuant to Illinois Supreme Court Rule 201(k) (107 Ill. 2d R. 201(k)), requesting plaintiff's response to interrogatories and request for production. Although plaintiff responded to the request for production on May 3, 1985, defendants claimed he failed to produce any documents. On September 9, 1985, another order was entered requiring plaintiff to comply with written discovery. On October 18, 1985, plaintiff complied with the order and filed his answers to interrogatories.

On April 22, 1985, defendants served plaintiff with a notice for Scott's deposition scheduled for May 31, 1985, but plaintiff did not produce Scott on that date. On December 26, 1985, a pretrial hearing was scheduled but plaintiff's counsel did not appear. The court ordered that depositions of non-experts be completed by May 5, 1986.

On January 15, 1986, defendants moved to compel plaintiff to produce Scott for his deposition. Plaintiff responded by claiming that Scott is incompetent to testify as a witness because he does not understand the nature of taking an oath, does not know the difference between the truth and a lie, cannot remember events that occurred before a certain time, and cannot communicate events accurately. The court granted defendants' motion to compel Scott's attendance and ordered him to appear for a discovery deposition within the next 21 days.

Scott did not appear for his deposition within that period and on March 4, 1986, pursuant to defendants' motion for sanctions, Scott was again ordered to appear for his deposition on or before March 20, 1986. When Scott failed to comply with the court's order, defendants moved to dismiss plaintiff's complaint for his failure to comply with discovery requests and court orders pursuant to Illinois Supreme Court Rules 201 and 219. (107 Ill. 2d Rules 201, 219.) In support of their motion, defendants relied on the court orders entered to obtain plaintiff's compliance with written discovery as well as those orders entered to compel Scott's deposition. Plaintiff's counsel neither filed a response to ...


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