Marinaro v. Pettit

2021 IL App (1st) 201083-U

• Court: Appellate Court of Illinois
• Decided: September 9, 2021
• Docket: 1-20-1083
• Status: Unpublished

Opinion

2021 IL App (1st) 201083-U No. 1-20-1083 Order filed September 9, 2021 Fourth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ PATRICIA MARINARO, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 19 L 8959 ) LUCAS PETTIT, and GENUINE PARTS COMPANY, ) a Georgia Corporation, ) Honorable ) Allen Price Walker, Defendants-Appellants. ) Judge, presiding.

JUSTICE LAMPKIN delivered the judgment of the court. Justices Gordon and Martin concurred in the judgment.

ORDER

¶1 Held: The circuit court did not abuse its discretion by denying defendants’ forum non conveniens motion to transfer venue from Cook County to Kane County even though plaintiff resided in and was injured in Kane County because defendants did not meet their burden to show that the relevant private and public interest factors strongly favored Kane County.

¶2 In this negligence action that arose from an automobile accident, defendants moved to

transfer the suit, which was filed in Cook County, to Kane County under the doctrine No. 1-20-1083

of forum non conveniens. The circuit court denied defendants’ motion, and this court granted their

petition for interlocutory appeal. On appeal, defendants argue that the total circumstances of this

case strongly favored a transfer to Kane County.

¶3 For the reasons that follow, we affirm the judgment of the circuit court.1

¶4 I. BACKGROUND

¶5 In March 2019, plaintiff Patricia Marinaro’s stopped sedan was rear-ended by a pickup

truck that was owned by defendant Genuine Parts Company (GPC) and driven by GPC’s

employee, defendant Lucas Pettit, who was acting within the scope of his employment.

The collision occurred near the intersection of Randall Road and Alft Lane in the City of Elgin,

Illinois. Elgin straddles both Kane County and Cook County. This collision took place within the

Kane County portion of Elgin. The collision caused plaintiff’s sedan to move forward and hit

another vehicle, a Honda CRV operated by Thomas Rowan.

¶6 Plaintiff resided in Algonquin, Kane County. Defendant Pettit resided in Elmwood Park,

Cook County and worked at GPC’s retail location in Harwood Heights, Cook County. Defendant

GPC was a Georgia corporation doing business in Illinois. The record shows that GPC had at least

25 commercial locations in Cook County and thus was a resident of Cook County. See 735 ILCS

5/2-102(a) (West 2018) (in the case of a foreign corporation, residence is defined as any county

where the corporation has an office or is doing business). Rowan was a resident of Elgin, Kane

County.

1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.

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¶7 Shortly after the collision, the Elgin Police and Fire Departments responded to the scene.

The police department that investigated the crash was located in the Kane County portion of Elgin

but serviced both Kane County and Cook County. Elgin police officer David Rodriquez prepared

the Illinois traffic crash report, which indicated that the crash was caused by Pettit following

plaintiff too closely. Plaintiff received care at the scene from the employees of the Elgin Fire

Department, which had locations in both Kane County and Cook County and was transported by

ambulance to a hospital in Elgin, Kane County.

¶8 Pettit was charged with driving too closely and pleaded guilty to that charge in traffic court

in Kane County in May 2019.

¶9 Plaintiff received follow-up care at a hospital in Hoffman Estates, Cook County, and

surgical and inpatient care at a hospital in Elk Grove Village, Cook County. In all, she was admitted

to one Kane County hospital and two Cook County hospitals for injuries and conditions related to

the collision. Aside from these three hospitals and the emergency services of the Elgin fire

department at the scene of the collision, three of plaintiff’s eight other medical providers were

located in Cook County, including the orthopedic physician who provided her with a cervical

fusion. Two medical providers were located in Kane County, and three medical providers were

located in either DuPage County, DeKalb County or Monroe County.

¶ 10 In August 2019, plaintiff filed her negligence claim in Cook County and alleged that Pettit

negligently operated the GPC pickup truck and the resulting crash proximately caused plaintiff’s

injuries and resulting damages. She also alleged that GPC was liable under the theory of

respondeat superior as Pettit’s principal and independently based upon allegations that GPC was

negligent in its supervision and training of Pettit.

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¶ 11 In November 2019, plaintiff’s counsel, located in Chicago, Cook County, sent an email to

defendants’ counsel, also located in Chicago, regarding the scheduling of depositions. Plaintiff’s

counsel suggested scheduling plaintiff’s deposition either at her home or defense counsel’s

Wheaton office in DuPage County because plaintiff was elderly, apprehensive about traveling into

downtown especially in winter with her recent cervical surgery, and fearful of falling on ice and

reinjuring her neck.

¶ 12 In December 2019, defendants filed their answers and affirmative defenses, which alleged

that prior to the collision Pettit lost consciousness, which caused him to lose the ability to control

his vehicle, and the collision and plaintiff’s damages were caused by and solely from an Act of

God.

¶ 13 In February 2020, defendants moved to transfer venue from Cook County to Kane County

based on the doctrine of forum non conveniens. Plaintiff filed a response objecting to any transfer,

and defendants filed a reply.

¶ 14 On September 10, 2020, the circuit court heard argument on the motion and entered a

written order on September 11, 2020, denying defendants’ motion to transfer venue. The court

determined that defendants failed to meet their burden to show that the relevant private and public

interest factors, when viewed in their totality strongly favored the suggested forum of Kane

County. Specifically, regarding the private interest factors, the court found that (1) the convenience

of the parties favored Cook County, where Pettit resided and worked and where GPC did business,

(2) the relative ease of access to evidence was neutral based on modern technology, (3) all the

apparent witnesses were subject to compulsory process, so this factor was neutral, (4) the cost of

obtaining willing witnesses to testify at the trial slightly favored Kane because even though a

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significant number of medical care witnesses were in Cook, most of the nonparty and medical

witnesses seemed to work or reside in Kane, (5) the possibility of the jury viewing the scene of the

collision slightly favored Kane, (6) the other practical problems that make the trial of the case easy

and inexpensive slightly favored Cook, where the attorneys for all the parties were located, and

(7) the advantages and obstacles to obtaining a fair trial were neutral.

¶ 15 Regarding the public interest factors, the court determined that (1) the administrative

difficulties favored Cook because even though 10 times as many new cases were filed in Cook

than in Kane, the data also showed that Cook resolved cases categorized as law jury verdicts over

$50,000 in 30 months, which was faster than Kane’s resolution of those cases in 35.2 months

(2) the interest in deciding local controversies locally favored Kane, where plaintiff resided and

her injury occurred, (3) the protection of finite judicial resources favored Cook, whose residents

would not be significantly burdened by serving as jurors because they had an interest in this case

since GPC was a resident of and did business in Cook, and (4) the need to apply the law of a

foreign jurisdiction was inapplicable and thus neutral. Finally, plaintiff’s preference for Cook

County was entitled to diminished but still some deference because she was not a resident of Cook,

and her injury did not occur in Cook.

¶ 16 Defendants petitioned for leave to appeal pursuant to Illinois Supreme Court Rule

306(a)(2) (eff. Oct. 1, 2020), and this court granted defendants’ petition.

¶ 17 II. ANALYSIS

¶ 18 Defendants argue that the circuit court abused its discretion when it denied

their forum non conveniens motion to transfer venue to Kane County because the court failed to

properly evaluate the private and public interest factors. Specifically, defendants argue that

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plaintiff’s choice of venue was entitled to little deference and the factors of party convenience,

ease of access to testimony and evidence, the cost of attaining willing witnesses, the jury’s ability

to view the accident site, the local interest, expense of trial, and court congestion strongly favored

transfer from Cook to Kane County.

¶ 19 According to defendants, Kane is the most appropriate forum for this trial because it has

much more significant contacts with this case than does Cook since it was the location of the

accident, plaintiff’s residence and the place of her initial medical treatment, the county of the

responding police and fire department personnel expected to testify, and a shorter distance to travel

for all of the disclosed medical providers and independent witnesses. Defendants contend that the

circuit court placed too much deference on plaintiff’s choice of forum, ignored the convenience to

the litigants in securing the attendance at trial of necessary witnesses, and improperly emphasized

Pettit’s presence in Cook County. Defendants argue that Pettit’s residence in Cook and GPC’s

doing business in Cook were remote factors that had no material relevance to the facts of the

automobile accident in Kane. Defendants also argue that this case does not qualify as a local

controversy that Cook County residents would have an interest in deciding, it would be unfair to

demand citizens of Cook to devote their valuable time to serve on a jury in this matter, and the

issue of court congestion in Cook is obvious.

¶ 20 Furthermore, defendants claim that the circuit court abused its discretion when it

determined that the weight of certain private interest factors was diminished due to the effects of

the COVID-19 pandemic. According to defendants, the court invoked the pandemic and belabored

its perceived impact on the practice of law in Illinois to ignore the acknowledged bedrock factors

of the forum non conveniens test and support denial of defendants’ motion to transfer.

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¶ 21 In determining a forum non conveniens motion, the sound discretion of the trial court is

given great weight and is not to be reversed on appeal unless no reasonable person would take the

view adopted by the trial court. Dawdy v. Union Pacific Railroad Co., 207 Ill. 2d 167, 176-77

(2003). Forum non conveniens is an equitable doctrine “founded in considerations of fundamental

fairness and sensible and effective judicial administration.” Adkins v. Chicago, Rock Island &

Pacific R.R. Co., 54 Ill. 2d 511, 514 (1973). The doctrine of forum non conveniens is designed to

give the courts “discretionary power which should be exercised only in exceptional

circumstances when it has been shown that the interests of justice require a trial in a more

convenient forum.” (Emphasis in original, and internal quotation marks omitted.) First American

Bank v. Guerine, 198 Ill. 2d 511, 520 (2002) (citing Peile v. Skelgas, Inc., 163 Ill. 2d 323, 335

(1994) and Torres v. Walsh, 98 Ill. 2d 338, 346 (1983)). “Essentially, it allows a trial court, which

otherwise has proper jurisdiction over a cause, to decline jurisdiction and transfer it to another

forum after a determination that the other forum would be better suited to hear it.” Schuster v.

Richards, 2018 IL App (1st) 171558, ¶ 20 (citing Fennell v. Illinois Central R.R. Co., 2012 IL

113812, ¶ 12 and Ruch v. Padgett, 2015 IL App (1st) 142972, ¶ 37).

¶ 22 In order to disturb the plaintiff’s choice of forum, the defendant bears the burden to show

that the relevant private interest factors affecting the litigants and public interest factors affecting

court administration “strongly favor” the defendant’s suggested forum. Langenhorst v. Norfolk

Southern Ry. Co., 219 Ill. 2d 430, 444 (2006); Griffith v. Mitsubishi Aircraft International, Inc.,

136 Ill. 2d 101, 107 (1990). Each case is considered independently based on its respective facts,

and a court must consider all relevant factors without emphasizing any one particular factor alone

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and must not balance the factors against each other. Glass v. DOT Transportation, Inc., 393 Ill.

App. 3d 829, 832 (2009); see Langenhorst, 219 Ill. 2d at 443-44.

¶ 23 The relevant private interest factors include “the convenience of the parties; the relative

ease of access to sources of testimonial, documentary, and real evidence; the availability of

compulsory process to secure attendance of unwilling witnesses; the cost to obtain attendance of

willing witnesses; the possibility of viewing the premises, if appropriate; and all other practical

considerations that make a trial easy, expeditious, and inexpensive.” Dawdy, 207 Ill. 2d at 172.

The public interest factors include “the administrative difficulties caused when litigation is handled

in congested venues instead of being handled at its origin; the unfairness of imposing jury duty

upon residents of a county with no connection to the litigation; and the interest in having local

controversies decided locally.” Id. at 173.

¶ 24 In most instances, assuming venue is proper, the plaintiff’s original choice of forum will

prevail so long as “the inconvenience factors attached to such forum do not greatly outweigh the

plaintiff’s substantial right to try the case in the chosen forum.” (Internal quotation marks

omitted.) Guerine, 198 Ill. 2d at 520. “Though the plaintiff’s choice is not absolute, intrastate

transfer is appropriate only when the litigation has ‘no practical connection,’ no nexus, with the

plaintiff’s chosen forum.” Id. at 521 (quoting Peile, 163 Ill. 2d at 336). “A plaintiff’s right to select

the forum is substantial.” Dawdy, 207 Ill. 2d at 173. When the plaintiff’s choice of forum is that

of the accident site or the home forum of the plaintiff, that choice is given deference because it is

reasonable to assume the choice is convenient or has the factor of deciding a local matter

locally. Id. However, the deference given to the plaintiff’s chosen forum is afforded less weight

when neither the plaintiff’s residence nor the site of the accident or injury is located in the chosen

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forum. Guerine, 198 Ill. 2d at 517-18. In such instances, the plaintiff’s choice of forum is given less

deference, as opposed to no deference. Id. at 518.

¶ 25 After considering both the private and public interest factors, we find that the circuit court

did not abuse its discretion by concluding that defendants failed to meet their burden to show that

the total circumstances of this case strongly favored a transfer from Cook County to Kane County.

¶ 26 The circuit court properly determined that, although plaintiff resided in Kane County and

the incident occurred there, her choice to file suit in Cook County was still entitled to some

deference.

¶ 27 Concerning the private interest factors, defendants cannot assert that plaintiff’s chosen

forum is inconvenient to her (Langenhorst, 219 Ill. 2d at 448); defendants must show that her

chosen forum is both inconvenient to defendants and another forum is more convenient

to all parties. Guerine, 198 Ill. 2d at 518. Here, defendants did not provide affidavits from either

Rowan, the independent eyewitness, or any of the Kane County medical treatment witnesses. Thus,

defendants provided little or no evidence about the actual residential or work addresses of these

witnesses and no specifics regarding the substance of their testimony. Consequently, no witnesses

have averred that they would not be available to attend a trial in Cook County or shown any detail

regarding why travel to Cook County would be inconvenient for them. Despite this deficiency in

defendants’ evidence, the circuit court considered their claims of inconvenience for witnesses and

the cost of obtaining their willing attendance and found that public transit and commuter rail

systems mitigated the cost or inconvenience of traveling to Cook County. Furthermore, plaintiff

stated that although some of her medical providers’ offices were in Kane County, some providers

were also located in Cook, DuPage, DeKalb, and Monroe Counties. Accordingly, the convenience

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to the parties and cost of obtaining the attendance of willing witnesses does not strongly favor

transferring the action from Cook to Kane County.

¶ 28 Moreover, nothing in the record indicates that documentary evidence could not be

produced in Cook County just as easily as in Kane County. Fennell, 2012 IL 113812, ¶ 36

(“the location of documents, records and photographs has become a less significant factor

in forum non conveniens analysis in the modern age of Internet, email, telefax, copying machines,

and world-wide delivery services, since those items can now be easily copied and sent”).

Furthermore, the deposition testimony of the witnesses is easily, expeditiously, and inexpensively

available by videoconference and recording equipment. Accordingly, even though the particular

factor concerning the possibility of the jury viewing the scene favored Kane (see Dawdy, 207 Ill.

2d at 178), the ease of access to sources of evidence does not strongly favor transfer to Kane

¶ 29 In addition, the practical considerations that make a trial easy, expeditious, and inexpensive

do not favor transfer from Cook to Kane County. Both plaintiff’s counsel and defendants’ counsel

are located in Chicago, Cook County, which could result in reduced costs and a similar ease of

access for both parties if the suit remains in Cook County. We note that the drive from the area in

Kane County where the collision occurred to Chicago in Cook County is not so far as to be

inconvenient.

¶ 30 Concerning the public interest factors, we reject defendants’ assertion of a lack of

connection between this litigation and Cook County. Plaintiff’s claim against defendants includes

allegations of respondeat superior and that GPC failed to properly train and supervise its employee

Pettit, who worked at a GPC facility in Cook County and was acting within the scope of his

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employment at the time of the collision. Although GPC is a Georgia corporation, it does business

in Illinois and had at least 25 commercial locations in Cook County. See Langenhorst, 219 Ill. 2d

at 451 (finding that a county had a legitimate interest in deciding a local controversy involving one

of its residents, a foreign corporation, and citing section 2-102(a) of the Code, 735 ILCS 5/2-102(a)

(West 2000), for the proposition that in the case of a foreign corporation, residence is defined as

any county where the corporation has an office or is doing business). Accordingly, we find no

abuse of discretion in the circuit court’s conclusion that Cook County jurors would not be unfairly

burdened by hearing this matter because Cook residents have an interest in deciding this

controversy even though Kane County also has an interest in deciding a controversy involving an

accident that occurred in Kane and resulted in injuries to a Kane resident. Furthermore, the record

supports the circuit court’s conclusion that Cook County resolved cases categorized as law jury

verdicts over $50,000 faster than Kane County.

¶ 31 Finally, the record refutes defendants’ assertion that the circuit court defied precedent and

promoted sweeping change to the forum non conveniens doctrine by abjectly speculating, based

on six months of an unprecedented pandemic in modern times, that the practice of law permanently

and completely switched from the intimacy of in-person questioning of parties and witnesses to

the impersonal medium of remote videoconferencing. According to the record, during the

September 10, 2020 hearing on defendants’ forum non conveniens motion, defense counsel argued

regarding the convenience to the parties’ factor that the likelihood of plaintiff’s treating physicians

appearing in court to provide live testimony was not remote and it had been “the first choice [to]

always conduct in-person” discovery depositions throughout the COVID-19 pandemic. The court

then asked how the impact of COVID-19, which led the courts to accelerate the adoption of

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technology (i.e., videoconference and recording technology to conduct remote depositions and

pretrial conferences and hearings), paralleled the effect of technology in making the transfer of

documentary evidence much easier and convenient, and whether this innovative use of technology

made the factors of witness locations and travel times and distances “less important than they used

to be.” The court emphasized that the factors of witness locations and travel times and distances

were still entitled to consideration and weight, “[b]ut the question is whether or not the court should

give it the same weight that it used to, or is it entitled to diminished weight?”

¶ 32 When the court discussed its rationale for denying defendants’ forum non conveniens

motion, the court stated that, regarding the costs of obtaining willing witnesses, the cost of

commuting to Chicago would be lessened by taking commuter trains. The court continued:

“Moreover, the COVID-19 pandemic has had a dramatic impact on how

litigation is conducted ***.

[M]any court hearings, depositions, and pretrial conferences are being done

remotely. And if the pandemic continues much longer, the judiciary will likely find

it necessary to conduct jury trials remotely.

COVID-19 has accelerated the adoption of Zoom, Skype, Microsoft Teams,

and other web-based videoconferencing platforms by lawyers and the public in

general. The technology employed during this crisis is not likely to disappear once

it ends.

And the idea of a trial consisting of lawyers, witnesses, jurors, and judges

all being in the same room may one day become an artifact of a bygone era. One

day. But at this point it is not.”

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Contrary to defendants’ assertions, the circuit court did not defy precedent, engage in abject

speculation, or promote sweeping change to the forum non conveniens doctrine.

¶ 33 Here, the circuit court considered all the relevant factors and concluded that defendants

failed to meet their burden to show that the relevant private and public interest factors strongly

favored defendants’ choice of Kane County to warrant disturbing plaintiff’s choice of Cook

County. Based on our review of the record, we do not conclude that no reasonable person would

take the view adopted by the circuit court. We find no abuse of discretion by the circuit court in

denying defendants’ forum non conveniens motion to transfer venue from Cook County to Kane

¶ 34 III. CONCLUSION

¶ 35 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 36 Affirmed.

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