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08/29/96 DAVID KINZLER v. CHICAGO & NORTH WESTERN

August 29, 1996

DAVID KINZLER, PLAINTIFF-APPELLEE,
v.
CHICAGO & NORTH WESTERN TRANSPORTATION COMPANY AND DEVER AND SONS TRUCKING COMPANY, INC., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Madison County. No. 93-L-680. Honorable George J. Moran, Judge, presiding.

As Corrected August 30, 1996.

The Honorable Justice Kuehn delivered the opinion of the court. Hopkins, P.j., and Goldenhersh, J., concur.

The opinion of the court was delivered by: Kuehn

JUSTICE KUEHN delivered the opinion of the court:

On September 23, 1992, in Bureau County, Illinois, a Chicago & Northwestern Railroad (CNW or defendant) freight train collided with a grain truck owned by Dever and Sons Trucking Company, Inc. (Dever). David Kinzler (Kinzler or plaintiff), a 23-year veteran with CNW's St. Louis subdivision, sustained injuries to his head and back in the collision. On June 28, 1993, Kinzler sued CNW under the Federal Employers' Liability Act (45 U.S.C.A. ยงยง 51-60 (West 1986)) (FELA), to recover for the head and back injuries he sustained in the collision and for the hearing loss caused by 23 years of exposure to excessive noise during his tenure with the railroad and exacerbated by the September 23 head injury.

Kinzler sued in Madison County, and defendant sought to transfer the matter under the doctrine of intrastate forum non conveniens. The court denied defendant's motion. Defendant filed a petition for leave to appeal under Supreme Court Rule 306(a)(2) (155 Ill. 2d R. 306(a)(2)). This court denied defendant's petition, but the supreme court vacated our order and directed us to enter an order granting leave to appeal and to consider the case on the merits ( Kinzler v. Chicago & North Western Transportation Co., 163 Ill. 2d 559, 655 N.E.2d 916, 211 Ill. Dec. 533 (1995)).

Defendant challenges plaintiff's decision to file suit in Madison County. Defendant urges that Madison County has no practical connections to plaintiff's lawsuit and insists that the trial court abused its discretion in denying defendant's motion to transfer. We disagree and affirm.

In Peile v. Skelgas, 163 Ill. 2d 323, 335, 645 N.E.2d 184, 190, 206 Ill. Dec. 179 (1994), the supreme court revisited and reaffirmed the validity of intrastate forum non conveniens in Illinois. Based on the principles of equity, the doctrine of forum non conveniens balances deference to the plaintiff's choice of forum with public- and private-interest factors. Hefner v. Owens-Corning Fiberglas Corp., 276 Ill. App. 3d 1099, 1101, 659 N.E.2d 448, 451, 213 Ill. Dec. 532 (1995), citing Bland v. Norfolk & Western Ry. Co., 116 Ill. 2d 217, 223, 506 N.E.2d 1291, 1294, 107 Ill. Dec. 236 (1987). When the trial court gives reasonable treatment to the relevant factors, we must give its determination great deference. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 70 L. Ed. 2d 419, 436, 102 S. Ct. 252, 266 (1981). By their very nature, balancing tests are subjective. Our task, therefore, is not to determine whether we agree with the trial court's determination but to review whether the trial court "acted arbitrarily, without employing conscientious judgment, or whether in view of all of the circumstances, the court exceeded the bounds of reason and ignored recognized principles of law." Mowen v. Illinois Valley Supply Co., 257 Ill. App. 3d 712, 714, 629 N.E.2d 176, 178, 195 Ill. Dec. 868 (1994).

In order to secure a transfer under the forum non conveniens analysis, the defendant must show that the convenience factors weigh strongly in favor of a transfer. Brown v. Illinois Power Co., 269 Ill. App. 3d 1107, 1109, 647 N.E.2d 1112, 1114, 207 Ill. Dec. 619 (1995), citing Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101, 106, 554 N.E.2d 209, 211, 143 Ill. Dec. 274 (1990). We examine the connections between plaintiff's lawsuit and his choice of forum to determine whether to exercise our discretion to move the suit to a different forum which would better serve the parties' convenience. Hefner, 276 Ill. App. 3d at 1101, 659 N.E.2d at 451, citing Wieser v. Missouri Pacific R.R. Co., 98 Ill. 2d 359, 364, 456 N.E.2d 98, 100, 74 Ill. Dec. 596 (1983).

By now, the criteria for transfer have a familiar ring. We begin with the premise that more than one forum has proper venue and jurisdiction over a case. Boner v. Peabody Coal Co., 142 Ill. 2d 523, 527, 568 N.E.2d 883, 885, 154 Ill. Dec. 662 (1991), citing Bland, 116 Ill. 2d at 223, 506 N.E.2d at 1294. Plaintiff's choice of forum receives great deference in our deliberations. If plaintiff sues in a jurisdiction other than the county of his residence or the site of his injury, we still take note of plaintiff's choice of forum but we afford his choice less deference. Peile, 163 Ill. 2d at 337-38, 645 N.E.2d at 191. As we observed in Hefner, Peile stands for the basic truth that forum non conveniens is ultimately about convenience and not about counties. Hefner, 276 Ill. App. 3d at 1102, 659 N.E.2d at 452, citing Peile, 163 Ill. 2d at 337-38, 645 N.E.2d at 191.

Our examination must include the private-interest factors: "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.'" Hefner, 276 Ill. App. 3d at 1101, 659 N.E.2d at 451, quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843 (1947). We must also consider the complexity of the litigation. Mowen, 257 Ill. App. 3d at 717, 629 N.E.2d at 178.

The public-interest factors affecting our decision include court congestion, an interest in having localized controversies decided at home, and the burden of jury duty upon local citizens in an unrelated forum. Hefner, 276 Ill. App. 3d at 1101, 659 N.E.2d at 451, citing Gulf Oil Corp., 330 U.S. at 508-09, 91 L. Ed. at 1062-63, 67 S. Ct. at 843. Our balancing analysis requires an evaluation of the relevant factors in their entirety, rather than an emphasis on any single factor. Peile, 163 Ill. 2d at 336-37, 645 N.E.2d at 190.

Though plaintiff resides in Pekin, Illinois, in Tazewell County, approximately 140 miles from Madison County and approximately 72 miles from Bureau County, the private-interest factors do not favor transferring the case to Bureau County. Like the trial court, we find sufficient contacts with Madison County to justify holding a trial there. Plaintiff's home terminal is in South Pekin, Illinois, closer to Bureau County than to Madison County. However, plaintiff works on CNW's St. Louis subdivision, which runs from Madison County 230 miles north to Nelson, Illinois. Plaintiff has done yard jobs in Madison County and has operated hundreds of trains in and out of Madison Yard. When plaintiff's work brought him to Madison County, he was required to stay in company-approved lodging in Granite City, Illinois, and Collinsville, Illinois, both of which are in Madison County. CNW has an office and a railyard in Madison County. It does not have an office in Bureau County. Defendant Dever has its home office in Bureau County.

We also consider the site of the injury in our deliberations. Turner v. Jarden, 275 Ill. App. 3d 890, 894, 656 N.E.2d 1125, 1128, 212 Ill. Dec. 291 (1995). Plaintiff sued to recover for two injuries, one which occurred in Bureau County and one which occurred over a period of time in the 230-mile radius which comprises the St. Louis subdivision of CNW. Since Madison County is the origin of the St. Louis subdivision, plaintiff sustained at least a portion of his hearing loss injury in the forum in which he filed suit. In Brummett v. Wepfer Marine, Inc., 111 Ill. 2d 495, 499, 490 N.E.2d 694, 697, 95 Ill. Dec. 841 (1986), the Illinois Supreme Court established that ...


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