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Schuster v. Richards

Court of Appeals of Illinois, First District, Third Division

April 11, 2018

DEBBIE J. SCHUSTER and ALAN M. SCHUSTER, Plaintiffs-Appellants,
v.
LYNN M. RICHARDS; OUTERWALL, INC., d/b/a Coinstar; and REDBOX AUTOMATED RETAIL, LLC, Defendants-Appellees.

          Appeal from the Circuit Court of Cook County. No. 2016 L 006979 The Honorable Jerry A. Esrig, Judge Presiding.

          FITZGERALD SMITH JUSTICE delivered the judgment of the court, with opinion. Justices Howse and Lavin concurred in the judgment and opinion.

          OPINION

          FITZGERALD SMITH JUSTICE

         ¶ 1 Following the trial court's grant of a motion to transfer venue pursuant to forum non conveniens filed by defendants-appellees Lynn M. Richards, Outerwall, Inc., d/b/a Coinstar and Redbox Automated Retail, LLC, plaintiffs-appellants Debbie J. Schuster and Alan M. Schuster petitioned for leave to appeal under Illinois Supreme Court Rule 306(a)(2). See Ill. S.Ct. R. 306(a)(2) (eff. July 1, 2014). This court granted their petition. On appeal, plaintiffs contend that the trial court abused its discretion in granting defendants' motion to transfer venue because it conducted an unequal balancing of the relevant factors at issue in favor of transfer. They ask that we reverse the trial court's order and, accordingly, restore the matter to the venue they initially chose. For the following reasons, we affirm.

         ¶ 2 BACKGROUND

         ¶ 3 The parties agree to the relevant facts of this cause.

         ¶ 4 Plaintiff Debbie Schuster, while a pedestrian, was struck by defendant Richards, who was driving a vehicle in the course of her employment. At that time, defendant Richards was employed by defendant Redbox Automated Retail, LLC (Redbox), and the vehicle she was driving was leased to defendant Outerwall, Inc., d/b/a Coinstar (Coinstar). Plaintiff Debbie Schuster, as well as her husband plaintiff Alan Schuster, who joined her in filing suit against defendants with respect to the accident, are both residents of Kane County, Illinois. Defendant Richards is a resident of Du Page County, Illinois. Defendants Redbox and Coinstar are Delaware corporations that have ties to several counties in Illinois. Relevant to the instant cause, Redbox, for example, has offices and warehouses in Cook and Du Page Counties and also does business in Kane County. Its agent for process is located in Cook County. By all agreement, it does more business, transactionally and monetarily, in Cook County as opposed to Kane County. Similarly, Coinstar does business in both Cook and Kane Counties, but more substantially (again, transactionally and monetarily) in the former as opposed to the latter. Its agent for process is also located in Cook County. The accident between plaintiff Debbie Schuster and defendant Richards occurred in East Dundee, Illinois, which is located in Kane County.

         ¶ 5 Members of the East Dundee Police Department and the East Dundee/Countryside Fire Protection District, both in Kane County, responded to, and investigated, the accident. Plaintiff Debbie Schuster was first taken to Advocate Sherman Hospital (Sherman) in Kane County. She was immediately transferred to Advocate Lutheran General Hospital (Lutheran General) in Cook County and later transferred to Presence Holy Family Medical Center (Holy Family) in Cook County. Subsequently, she was transferred to Presence St. Joseph Hospital (St. Joseph) in Kane County, and finally to Rosewood Care Center (Rosewood) in Kane County.

         ¶ 6 Plaintiffs filed suit against all defendants in Cook County. They asserted negligence and loss of consortium against defendant Richards. As against defendants Redbox and Coinstar, they asserted solely claims of respondeat superior and nothing with respect to direct negligence. That is, against Redbox, plaintiffs claimed that defendant Richards was its agent, that she was operating a vehicle owned by it, and that, as principal, it was responsible for her acts and omissions. Similarly, against Coinstar, plaintiffs claimed that defendant Richards was its agent and that, as principal, it was responsible for her negligent acts and omissions.

         ¶ 7 Defendants filed a motion to transfer venue pursuant to forum non conveniens seeking to move the cause from Cook County to Kane County. As the parties briefed the matter, defendants argued that the relevant private and public interest factors to be considered when deciding such a motion strongly favored transfer. Plaintiffs, meanwhile, argued that they did not and that their choice of forum, which is their substantial right, should prevail. Within the parties' briefing, plaintiffs disclosed a list of some 18 potential witnesses, in addition to themselves, who they believed "may" be called on the issues of liability and damages. Some of these witnesses provided information regarding their testimony should the matter proceed to trial. For example, it was disclosed that there were three potential witnesses to the accident: Ray Clark, Michael Tangorra and Blake Johnson. Each submitted an affidavit with respect to the convenience of testifying. Clark stated he is a resident of McHenry County and that it was "more convenient" for him to travel to Kane County rather than Cook County to testify, Tangorra similarly stated he is a resident of McHenry County and that it was "more convenient" for him to travel to Kane County rather than Cook County to testify, and Johnson stated he is a resident of Kane County but that it was "not inconvenient" for him to travel to Cook County to testify, if necessary. Another listed witness was police officer Jessica Michelini of the East Dundee Police Department, who had responded to the scene and investigated the accident. In a discovery deposition, she stated that she is a resident of McHenry County and that traveling to either McHenry or Kane Counties to testify in this matter was "preferred" over Cook County.

         ¶ 8 Plaintiffs also presented the affidavits of two treating physicians, Drs. Shawn Palmer and Ted Jagielo, who were also listed as potential witnesses. Dr. Palmer stated that he works at the Midwest Bone and Joint Institute, which has offices in McHenry, Lake and Kane Counties, and that he is a resident of Lake County. He attested that it "is convenient" for him to testify in Cook County. Dr. Jagielo stated that he works at Lutheran General and Holy Family, both in Cook County, and he attested that it would be "far more convenient" for him to testify in Cook County than Kane County.

         ¶ 9 Additionally, the record reveals that plaintiffs' counsel is located in Kane County while defendants' counsel is located in Cook County.

         ¶ 10 After considering the parties' briefs and argument, the trial court granted defendants' motion to transfer venue. In its written order, the court began by providing a lengthy statement regarding the applicable standard of review and the amount of deference to be afforded to plaintiffs' choice of forum. The court acknowledged that plaintiffs undoubtedly have a substantial interest in their choice that, generally, should not be disrupted. However, the court recognized that plaintiffs' choice was neither where they reside nor where the accident occurred and, thus, their choice was to receive less deference.

         ¶ 11 The court then analyzed each of the relevant private and public interest factors involved in forum non conveniens determinations. With respect to the private interest factors, it concluded that the first of these, the convenience of the parties, was "neutral" because, although defendants cannot assert that plaintiffs' choice of forum is inconvenient to plaintiffs, Cook and Kane Counties border each other and defendant Richards, as well as defendants Redbox and Coinstar, would not be inconvenienced in traveling to either county. Next, the court found that the ease of access to sources of evidence weighed in favor of transfer because the accident occurred in Kane County, two of the occurrence witnesses attested it was more convenient them to attend court in Kane County, the remaining occurrence witness lives in Kane County, police and fire personnel involved were located in Kane County, and plaintiff received treatment in both Kane and Cook Counties. The factors of availability of compulsory process to secure the attendance of unwilling witnesses and the cost to obtain the attendance of willing witnesses also weighed in favor of transfer since "[s]everal occurrence witnesses are more accessible in Kane County" and, again, the counties at issue border each other so that any cost to obtain witness attendance "would be minimal." It further noted that, although plaintiff received medical care in both counties, "most healthcare providers will probably not testify in person at trial." And, as to the factor of the possibility of viewing the premises, the court found that it weighed in favor of transfer since, again, the accident occurred in Kane, not Cook, County. After analyzing all the private interest factors, the court stated that, even after affording plaintiffs "some deference in their choice, " these factors weighed in favor of transfer.

         ¶ 12 Acknowledging that its consideration was not yet complete, the court next examined each of the public interest factors involved. First, it found that administrative concerns, including the congestion of court dockets, weighed "slightly in favor of transfer, " noting various statistics showing that, while Cook County has significantly more of these types of cases on its docket, it decides them in a similar period of time (457 cases in 40.1 months in Cook versus 6 cases in 41.7 months in Kane).[1] Next, the court noted that the unfairness of jury duty upon Cook County residents weighed "strongly in favor of transfer" for two reasons: because the accident occurred in and involved residents of Kane County and because, while defendants Redbox and Coinstar do business in Cook County, plaintiffs only sought to impose vicarious liability upon them for the alleged negligence of defendant Richards and never made any allegation of direct negligence against them. As to the final public interest factor, the court found that the interest of having local controversies decided locally weighed "strongly in favor of transfer" since, again, the alleged negligence occurred in Kane County and involved Kane County plaintiffs; Kane County, therefore, had a local interest in the matter.

         ¶ 13 Ultimately, in reviewing its entire analysis, the court held that "the relevant factors for consideration, when viewed in their totality, favor the forum suggested by the movant." Accordingly, it transferred the cause from Cook County to Kane County.

         ¶ 14 As noted, plaintiffs then appeared in our Court seeking leave to appeal pursuant to Illinois Supreme Court Rule 306(a)(2). See Ill. S.Ct. R. 306(a)(2) (eff. July 1, ...


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