Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

09/20/96 LILLIAN BURNELL BERLAK v. VILLA SCALABRINI

September 20, 1996

LILLIAN BURNELL BERLAK, AS EXECUTRIX OF THE ESTATE OF PAULINE HAAS, DECEASED, PLAINTIFF-APPELLEE, CROSS-APPELLANT,
v.
VILLA SCALABRINI HOME FOR THE AGED, INC., A NOT FOR PROFIT CORPORATION, FATHER LAWRENCE COZZI, MARGARET BECKER, AND CATHOLIC BISHOP OF CHICAGO, A CORPORATION SOLE, DEFENDANTS-APPELLANTS, CROSS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE RONALD C. RILEY, JUDGE PRESIDING.

Rehearing Denied October 30, 1996. Released for Publication November 18, 1996.

The Honorable Justice Gordon delivered the opinion of the court: McNULTY, P.j., and Hourihane, J., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

Lillian Burnell Berlak, on behalf of her deceased mother, PaulineHaas, brought the instant action alleging negligence and violation of the Nursing Home Care Reform Act of 1979 (the Nursing Home Care Reform Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 4151-101 et seq. now at 210 ILCS 45/1-101 et seq. (West 1994)) to recover for the personal injuries sustained by Haas on June 15, 1986 while she was a resident at Villa Scalabrini Home for the Aged. Named as defendants were Villa Scalabrini Home for the Aged, Inc. (Villa Scalabrini), the nursing home; Father Lawrence Cozzi, the administrator of Villa Scalabrini; Margaret Becker, the director of nurses at Villa Scalabrini; and the Catholic Bishop of Chicago, a corporation sole, the owner of the premises. At trial, at the conclusion of the plaintiff's case, a directed verdict was granted in favor of the Catholic Bishop of Chicago but denied as to the remaining defendants. At the close of all the evidence, the trial court denied defendants' renewed motion for directed verdict as well as plaintiff's motion for directed verdict on the issue of the decedent's negligence. The jury returned a general verdict in favor of defendants Cozzi and Becker as against the plaintiff and in favor of the plaintiff as against Villa Scalabrini. The jury also determined the decedent's damages to be $7,478.96, the amount of her medical bills, but reduced that amount by 50 percent based upon a finding that the decedent was negligent.

Thereafter, pursuant to plaintiff's motion, the trial court found that Villa Scalabrini violated the Nursing Home Care Reform Act of 1979 and awarded treble damages of $11,218.44 (trebling "recoverable damages" rather than "actual damages") and attorney's fees and costs totalling $85,000.

On appeal, the defendants argue that the trial court erred in denying their motions for directed verdict; in denying their motion in limine and allowing plaintiff's witness to give an opinion on the ultimate issue in the case; in allowing plaintiff's witness to testify as an expert in violation of Supreme Court Rule 191 (134 Ill. 2d R. 191); in ruling that the general verdict of the jury implied a finding that the Nursing Home Care Reform Act had been violated; and in awarding attorney's fees and costs totalling $85,000. In her cross-appeal, the plaintiff argues that the trial court erred in granting a directed verdict to the Catholic Bishop of Chicago; in denying plaintiff's motion for judgment notwithstanding the verdict as to defendants Cozzi and Becker; in denying plaintiff's motion for directed verdict on the issue of comparative negligence; in denying plaintiff's post-trial motion for a new trial on the issue of damages only; in trebling the amount of Haas' "recoverable damages" (actual damages reduced by the amount of Haas' negligence); and in failing to award all attorney'sfees and costs sought in plaintiff's petition and supplemental petition. *fn1

[The following material is nonpublishable under Supreme Court Rule 23.]

[The preceding material is nonpublishable under Supreme Court Rule 23.]

VII. Attorney's Fees

As its final argument on appeal, Villa Scalabrini contends that the award for attorney's fees and costs in the amount of $85,000 was improper because the plaintiff recovered only nominal damages; because the award did not bear a reasonable relationship to the litigation's success; and because the award ignored the terms of a contingency fee agreement that may have existed between the plaintiff and her attorneys. *fn6

Section 3-602 of the Nursing Home Care Reform Act provides: "The licensee shall pay 3 times the actual damages, or $500, whichever is greater, and costs and attorneys fees to a facility resident whose rights *** are violated." Ill. Rev. Stat. 1985, ch. 111 1/2, par. 4153-602 recodified at 210 ILCS 45/3-602 (West 1992).

The requirement that the licensee pay the prevailing resident's attorney's fees is mandatory as evidenced by the legislature's use of the word "shall" in the statute. Ordinarily, the use of the word "shall" in a statute is indicative of a mandatory legislative intent. E.g., Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 566 N.E.2d 1283, 153 Ill. Dec. 177 (1990); Newkirk v. Bigard, 109 Ill. 2d 28, 485 N.E.2d 321, 92 Ill. Dec. 510 (1985). The word "shall" will not be given a permissive meaning where it is used with reference to any right or benefit to anyone to the extent such right or benefit depends upon giving a mandatory meaning to the word. New kirk v. Bigard; Moon Lake Convalescent Center v. Margolis, 180 Ill. App. 3d 245, 535 N.E.2d 956, 129 Ill. Dec. 191 (1989).

The statutory award of attorney's fees is designed to encourage nursing home residents to seek legal redress against nursing homes for violations of their rights. As the Illinois Supreme Court stated in Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 489 N.E.2d 1374, 95 Ill. Dec. 510, when ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.