Court of Appeals of Illinois, First District, Sixth Division
from the Circuit Court of Cook County. No. 15 L 11122
Honorable William E. Gomolinski, Judge Presiding.
JUSTICE CONNORS delivered the judgment of the court, with
opinion. Presiding Justice Hoffman and Justice Delort
concurred in the judgment and opinion.
1 Plaintiffs, Gregory Johnson and Natasha Johnson, appeal
from the trial court's order that granted the motion to
dismiss brought by defendants, ABM Janitorial
Services-Midwest, LLC (ABM), Fuller Family Holdings, LLC
(Fuller), 30 N. LaSalle, L.P. (30 N. LaSalle), and Tishman
Speyer Properties, L.P. (Tishman) (hereinafter collectively
referred to as defendants). The trial court found that due to
plaintiffs' failure to disclose their personal injury
claim during their bankruptcy proceeding, judicial estoppel
barred plaintiffs from bringing the instant lawsuit.
Plaintiffs assert that the trial court's decision was in
error because their failure to disclose was inadvertent. We
find that the record before us does not evince an intent to
deceive or mislead by plaintiffs. Therefore, we reverse the
decision of the trial court, and remand for further
3 The underlying case here stems from the personal injuries
suffered by plaintiff Gregory Johnson as a result of a slip
and fall in a stairwell at work. On December 15, 2010,
Gregory was working as a security guard for Whelan Security
of Illinois, Inc. (Whelan), at 30 North LaSalle Street in
Chicago, which required him to patrol the exterior of the
building. While on patrol, Gregory fell due to the allegedly
negligently-maintained condition of the stairs. As a result
of his work-related injury, Gregory filed a workers'
compensation claim against Whelan on August 25, 2011, and
4 On December 14, 2012, plaintiffs filed their complaint in
the circuit court of Cook County alleging negligence against
defendants, specifically that defendants negligently owned,
operated, managed, maintained, or controlled the premises.
Plaintiffs' complaint was brought by Gregory for his
personal injuries and by Gregory's wife, Natasha, for her
loss of consortium.
5 Prior to setting forth the pertinent procedural facts from
the circuit court, we find it necessary to address
plaintiffs' bankruptcy proceedings. On June 14, 2012, six
months prior to filing the instant personal injury lawsuit,
plaintiffs jointly filed a petition for chapter 7 bankruptcy
(11 U.S.C. § 101 (2006)) in the United States District
Court for the Northern District of Illinois and were
represented by Peter Francis Geraci Law, LLC, during their
bankruptcy proceeding. Plaintiffs' petition included
various "schedules" that contained their assets and
liabilities. One of the disclosures in Schedule B, which
covered personal property, required plaintiffs to describe,
"[o]ther contingent and unliquidated claims of every
nature, including tax refunds, counter claims of the debtor,
and rights to set off claims." In response to this item,
plaintiffs listed: "Workers compensation case with
Patricia Lannon 312.236.5412." Plaintiffs listed the
value of that case as "[u]nknown." Both plaintiffs
electronically signed the disclosures under penalty of
6 On August 8, 2012, a meeting of the creditors occurred,
during which plaintiffs were asked questions regarding their
assets and liabilities by the bankruptcy trustee, Mr. Horace
Fox. In relevant part, the following exchange occurred
between Mr. Fox and Gregory:
"MR. FOX [bankruptcy trustee]: In the last 2 years, has
either of you suffered any pers-physical injury that would
allow you to sue the person that caused you that damage and
make them pay you money?
MR. JOHNSON [plaintiff]: Yes, I have.
MR. FOX: How long ago did that occur?
MR. JOHNSON: Worker's [c]ompensation. It happened in, uh-
MR. FOX: Did you say [w]orkers [c]ompensation?
MR. JOHNSON: Yes.
MR. FOX: Okay.
MR. JOHNSON: December-
MR. FOX: We don't have to have this conversation because
you get to keep 100% of any [w]orkers [c]ompensation award.
MR. JOHNSON: Okay.
MR. FOX: Okay. But I appreciate your honesty."
October 10, 2012, approximately two months prior to the
filing of plaintiffs' personal injury lawsuit in circuit
court, plaintiffs received a discharge in bankruptcy and
their bankruptcy case was closed.
7 As previously stated, plaintiffs' circuit court
complaint was filed on December 14, 2012. Both plaintiffs
gave deposition testimony on November 11, 2013. Natasha
testified first, with her deposition beginning at 1 p.m.
Gregory testified after Natasha, with his deposition
beginning at 2:50 p.m., and ending after 8 p.m. During his
deposition, Gregory testified that he had filed two lawsuits
prior to the instant personal injury case: a personal injury
claim related to a 2000 motorcycle accident and a property
damage claim related to a 2002 car accident. Gregory also
testified that he and his wife had filed for personal
bankruptcy. When asked if the instant lawsuit had been
disclosed as an asset in the bankruptcy, Gregory responded,
"No. It wasn't, no."
8 Most relevant to the issues raised in this appeal, is the
following exchange from Gregory's deposition:
"Q. While you may not have been asked it by the
bankruptcy trustee, did you disclose the fact that you had
been involved in an accident that could potentially result in
a third-party action against other entities during the
MR. CANTWELL [plaintiffs' attorney]: Objection. If he
disclosed the workmen's comp claim, that certainly is
about-There's no other workmen's comp claim he ever
made, I don't think. Not that I know of.
Q. [Defendant ABM's attorney:] Do you understand my
A. You're asking me if I filed a lawsuit for workers'
Q. No. What I'm asking is, you testified that you
disclosed that you had a workers' comp action-
A. That's right.
Q. -proceeding with respect to this incident. Did you
disclose that you might potentially file a lawsuit with
respect to something non-workers' compensation resulting
from the December 15, 2010, accident regardless of whether
you were asked it by the bankruptcy trustee or not?
A. I told him I had no idea. I didn't know if I would do
anything because at that time I didn't even ...