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09/15/94 JOSEPH D. WOJTONIK v. ILLINOIS CENTRAL

September 15, 1994

JOSEPH D. WOJTONIK, PLAINTIFF-APPELLEE,
v.
ILLINOIS CENTRAL RAILROAD, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 92-L-731. Honorable Phillip J. Kardis, Judge Presiding.

Honorable Charles W. Chapman, J., Honorable Philip J. Rarick, J., Concurring, Honorable Thomas M. Welch, J., Concurring

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

Illinois Central Railroad (ICC) appeals from the denial of its motion to transfer venue from Madison County to Cook County on the grounds of forum non conveniens. We affirm.

Plaintiff, a resident of Chicago, has been employed by ICC for approximately 25 years and has been assigned to ICC's Glenn yard in Cook County since 1979. ICC owns and operates railroad tracks, yards, and cars throughout Illinois. ICC's Glen yard is located in Cook County. On September 12, 1989, Wojtonik was working at ICC's IMX yard, also located in Cook County, when he allegedly injured his back. There were no eyewitnesses to the accident. On September 14, 1989, plaintiff consulted Dr. Fernando Lopez in Cook County, and he was admitted to Christ Hospital & Medical Center in Oaklawn, Cook County, Illinois. Subsequently, plaintiff consulted with Dr. Schreiber of Madison County, and he is currently treating with Dr. Schreiber.

Defendant claims that there is no connection between plaintiff's accident and Madison County. The accident occurred in Cook County, plaintiff resides in Cook County, and all of the witnesses, with the exception of Dr. Schreiber, reside in Cook County. Defendant argues that the presence of a single treating physician within the chosen forum is not sufficient to defeat defendant's motion to transfer based on forum non conveniens, especially where there is nothing in the record to indicate when plaintiff began treating with Dr. Schreiber or the extent of treatment rendered by that physician.

Plaintiff's right to chose a forum is a substantial one that should rarely be disturbed unless public-interest factors and private-interest factors weigh strongly in favor of transfer. ( Mowen v. Illinois Valley Supply Co. (1994), 257 Ill. App. 3d 712, 714, 629 N.E.2d 176, 178, 195 Ill. Dec. 868.) Although there is authority that a plaintiff's choice of forum should be accorded less deference when he does not reside there ( Washington v. Illinois Power Co. (1991), 144 Ill. 2d 395, 400, 581 N.E.2d 644, 646, 163 Ill. Dec. 490), less deference does not mean no deference, and the presumption exists that plaintiff's chosen forum is convenient for him. Hoffmeister v. K Mart Corp. (1989), 181 Ill. App. 3d 739, 742-43, 537 N.E.2d 460, 462, 130 Ill. Dec. 393.

In ruling on motions to transfer venue based on intrastate forum non conveniens, a trial court must consider both the privateinterests affecting the convenience to the litigants and the public interests affecting the administration of the courts. Regarding private interests:

"'Important considerations are 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. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial.'" ( Torres v. Walsh (1983), 98 Ill. 2d 338, 345, 456 N.E.2d 601, 604, 74 Ill. Dec. 880 (quoting Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508, 91 L.Ed. 1055, 1062, 67 S.Ct. 839, 843).)

The public-interest factors 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." ( Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 224, 506 N.E.2d 1291, 1294 (quoting Gulf Oil, 330 U.S. at 509, 91 L.Ed. at 1063, 67 S.Ct. at 843).)

Unless these factors strongly favor the defendant, the plaintiff should be allowed to exercise his choice in deciding in what forum to bring the case, provided venue is proper. Torres, 98 Ill. 2d at 351, 456 N.E.2d at 607.

Examining the private-interest factors involved, the parties agree that venue is proper in either Cook or Madison County. Regarding access to sources of proof and the availability and cost of obtaining witnesses, the only eyewitness to the alleged accident was the plaintiff, and according to the record the only other fact witness identified to date is D.R. Veldhuizen, the foreman at the job site where plaintiff was injured. Veldhuizen resides in Cook County, and as he is employed by the defendant, it is logical to assume that ICC could produce him at the time and place of trial if it chooses. (See Brummett v. Wepfer Marine, Inc. (1986), 111 Ill. 2d 495, 490 N.E.2d 694, 95 Ill. Dec. 841.) Although plaintiff was initially examined after the accident at a Cook County medical facility by doctors who reside in Cook County, plaintiff's current treating physician, Dr. Schreiber, is located in Madison County. While defendant contends that cost considerations in transporting the witnesses to Madison County militate against Madison County as a proper forum, we do not think this private-interest factor so heavily weighs in defendant's favor as to justify a change of venue. All of the witnesses are subject to compulsory process, and if need be evidence depositions could be taken. In addition, we need not ignore the cost and inconvenience of the parties' attorneys in tryingthis case in Cook County. Plaintiff's attorney's office is in St. Clair County, and the defendant's attorney's office is in St. Louis, Missouri. Both offices are considerably closer to Madison County than to Cook County.

As for any relevant personnel, safety, employment, or other documents concerning this cause of action, such are readily available to ICC as they are contained within their own files. Finally, although defendant argues that a jury view of the accident scene could be ordered by the trial court, there is ...


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