Court of Appeals of Illinois, First District, Third Division
JOSEPH W. LOCASTO, Plaintiff-Appellant and Cross-Appellee,
THE CITY OF CHICAGO, a Municipal Corporation, JOHN S. McKILLOP, Director of Training/EMS, ARF ABDELLATIF, MONICA PORTER, and ANTHONY LONGINI, Defendants-Appellees and Cross-Appellants
Appeal from the Circuit Court of Cook County. No. 09 L 5400. The Honorable James D. Egan, Judge Presiding.
Reversed and remanded.
In an action arising from the allegedly excessive physical training plaintiff received in connection with his new job as a paramedic for defendant city, the trial court's entry of a judgment of default against defendants as a sanction for their dilatory practices with respect to the court's discovery orders was reversed and the cause was remanded for further proceedings, since the trial court entered the default without first considering intermediate sanctions and giving a warning that default was a possibility, and the record showed that although defendants were slow in responding to discovery requests, blatant disregard for the trial court's authority was not exhibited, and in one instance, plaintiff played a part in the delay.
FOR PLAINTIFF-APPELLANT: Jeffrey C. Hart, Segal McCambridge Singer & Mahoney, Ltd., Novi, MI.
FOR DEFENDANT-APPELLEES: Stephen R. Patton, Corporation Counsel of the City of Chicago, Chicago, IL.
PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Pucinski concurred in the judgment and opinion.
HYMAN, PRESIDING JUSTICE.
[¶1] For years lawyers have complained about how rarely trial judges mete out sanctions for dilatory discovery practices. This reluctance, they say, has contributed to an environment in which some lawyers (and parties, too) flout court rules and court orders because the chances of unpleasant consequences tends to be so low. But that is not what happened here.
[¶2] Plaintiff Joseph Locasto asks us to award him an additional $1 million in damages for emotional suffering on top of the nearly $2 million judgment by default entered as a discovery sanction against the City of Chicago and four city employees. The sanction was sought after defendants failed to meet several discovery deadlines. Defendants cross-appeal, arguing the trial court abused its discretion by entering the default without considering the possibility of a less severe sanction.
[¶3] The trial court took control of discovery early on. Defendants, however, dragged their feet on discovery, a relatively common transgression. After Locasto's efforts to obtain the discovery without court intervention went nowhere, he moved for a default against defendants as a sanction for failing to fulfill their discovery obligations. The trial court granted the default. Nothing in the record indicates that, before entering the default, the trial court considered a lenient alternative to coax cooperation or warned defendants of default as a possible sanction. We hold that the trial court must do both--weigh the efficacy of less drastic alternatives and warn--before entering the most damaging sanction available. Therefore, we vacate the judgment of default and remand for further proceedings in the trial court.
[¶5] The City of Chicago hired Joseph Locasto as a paramedic candidate. On May 6 and 7, 2008, the healthy 31-year-old attended the first two days of training at the fire academy. On both days, Locasto and his fellow candidates performed 10 to 12 hours of calisthenics, running, and other strenuous physical exercises. According to Locasto, fire academy instructors verbally coerced, intimidated, and hazed the candidates, and refused to let anyone drink water or other fluids, except during a one-hour lunch break and a single one-minute water break toward the end of each day.
[¶6] After both days of training, Locasto felt extreme soreness in his legs. On the evening of the second day, his legs began to swell. The next morning, Locasto noticed he had tea-colored urine, which, naturally, caused him alarm. He called his lead academy instructor who told him to go to the emergency room. At the hospital, a doctor informed Locasto he had rhabdomyolsis, a breakdown of muscle tissue which often leads to acute kidney damage, and compartment syndrome, a potentially life-threatening condition due to increased pressure within the muscles. Locasto underwent emergency surgery and spent 30 days in the intensive care unit. Locasto's physicians blamed his health problems on the extensive workouts and deprivation of water or liquids at the fire academy.
[¶7] On May 7, 2009, Locasto filed a six count complaint against the City of Chicago (the City), director of fire academy
EMS training John McKillop, and fire academy instructors Arf Abdellatif, Monica Porter, and Anthony Longini. (Plaintiff named another instructor, Daryl Johnson, but voluntarily dismissed him.) The first four counts were against the City and the last two counts were against the individual defendants.
[¶8] Default for Failure to Answer
[¶9] On October 15, 2009, the City filed a motion to dismiss under section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)), arguing Locasto's claims were precluded by the Illinois Pension Code (40 ILCS 5/1-101 et seq . (West 2010). The Pension Code prohibits employee suits against employers and fellow employees absent allegations of a specific intent to injure. The trial court denied the motion to dismiss, vacated all technical defaults, and ordered defendants to answer within 30 days. Defendants failed to answer the complaint, and Locasto moved for a default. Following a hearing on the motion, the trial court gave plaintiffs more time to plead to the complaint and ordered the parties to complete discovery within 90 days. Again, defendants failed to answer, and again Locasto moved for a default. Then, instead of answering, defendants filed a second motion to dismiss that was nearly identical to the first motion. This time, Locasto moved to strike the motion to dismiss and asked for an order of default as a sanction under Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994) on the ground that defendants' motion raised the same issues as their earlier motion to dismiss. The trial court agreed and granted the ...