Court of Appeals of Illinois, First District, Third Division
DEBBIE J. SCHUSTER and ALAN M. SCHUSTER, Plaintiffs-Appellants,
LYNN M. RICHARDS; OUTERWALL, INC., d/b/a Coinstar; and REDBOX AUTOMATED RETAIL, LLC, Defendants-Appellees.
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.
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,
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). 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, ...