July 5, 2006
Two interesting opinions noted on the TortProf listserv; both are also discussed at Overlawyered:
- In Tri-G v. Burke, Bosselman & Weaver, the Illinois Supreme Court held that "lost" punitive damages are not available in legal malpractice claims. In other words, if your lawyer screws up and you lose punitive damages as a result, you can't recover those by way of suit against your lawyer. From the majority opinion:
Disallowing lost punitive damages means that plaintiffs in legal malpractice actions may not receive as much money as they might have if the underlying action had been handled properly. Compensating plaintiffs, however, is but one of several factors that must be balanced in assessing whether lost punitive damages should be recognized in legal malpractice actions. There is no reason in logic or the law why it should be given preeminent effect where, as here, the jury has already awarded full compensation to the plaintiff for all the damages it actually sustained.
Punitive, or exemplary, damages are not awarded as compensation, but serve instead to punish the offender and to deter that party and others from committing similar acts of wrongdoing in the future. Loitz v. Remington Arms Co., 138 Ill. 2d at 414. Allowing Tri-G to recover its lost punitive damages from Burke would not advance that policy in any way. To the contrary, by holding the firm liable for the intentional or willful and wanton misconduct of a third party, it tears the concept of punitive damages from its doctrinal moorings.
Section 2-1115 of the Code of Civil Procedure (735 ILCS 5/2-1115 (West 2002)) expressly bars recovery of punitive damages in a legal malpractice action. By characterizing lost punitive damages as "compensatory," Tri-G is attempting to evade reach of this statute.
- In another June decision, the Illinois Supreme Court held that a Burger King has a duty to patrons in connection with potential injuries from traffic smashing through the walls. The dissent (and Ted Frank) suggest that the conclusion is massively overbroad -- but I think the opinion is actually fairly narrow. Certainly the restaurant has a duty to its customers in terms of how it builds walls, roads, etc.
The harder questions in this case are whether these injuries fall within proximate cause and whether the restaurant breached the duty of ordinary care. Recall that the case was resolved on a motion to dismiss, where it's virtually impossible to win a breach argument. As for proximate cause, the Court concluded that the defendants failed to properly raise the proximate cause question: "[W]e find that defendants' [sic] have forfeited their argument regarding proximate cause for purposes of this appeal. Defendants argue for the first time before this court that, as a matter of law, the allegations in plaintiff's complaint are insufficient to demonstrate that their conduct proximately caused the decedent's injuries."
I tell my students (and I told Massachusetts judges a couple of weeks ago) that any time a statement of duty sounds really specific -- i.e., "Restaurants have no duty to guard against bizarre traffic accidents ending up with cars running through the walls" -- it's much more likely to be a statement about breach, and properly dealt with on summary judgment. The Court does a pretty good job of discussing how much confusion there is about duty, and comes out about right:
Ultimately, the court concludes that the category of injuries is foreseeable enough that it can't find the absence of a duty as a matter of law -- but is emphatic that the presence of a duty implies neither breach nor proximate cause:
Thus, the issue in this case is not whether defendants had a duty to install protective poles, or a duty to prevent a car from entering the restaurant, or some such other fact-specific formulation. Because of the special relationship between defendants and the decedent, they owed the decedent a duty of reasonable care. The issue is whether, in light of the particular circumstances of this case, defendants breached that duty. That question cannot be answered at this stage of the proceedings.
Do I thnk it's a great case? Nope, not from what I've read. It seems highly unlikely that there's a breach, given the facts that are known. But those are hard questions to win on a motion to dismiss. As for proximate cause, you might be able to win that on a motion to dismiss -- as long as it's properly before the court, which it apparently isn't here. In other words, I think it's a loser of a case, but a loser at a different stage.
Recognizing that the duty of reasonable care that businesses owe to their invitees applies to cases where invitees are injured by out-of-control automobiles is not the same as concluding the duty has been breached because a business failed to take a certain level of precaution. Nor is it the same as concluding that the breach was the proximate cause of an invitee's injuries.
I'm not an Illinois lawyer, so I don't know the procedural rules, but an early motion for summary judgment sounds like a good idea. (I happen to think that more such motions should be taken seriously, but that's for another day.)
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