Forklift Equipment Product Liability Complaint - Part 4

Download PDF Version


23. That Section 2-1117 lacks a rational basis for any legitimate governmental purpose for one or more of the following reasons:

a. the existing public policy in Illinois is that liability for damages shall be based on fault, and that where proven, that wrongdoers shall be held fully accountable for all harms caused;

b. an innocent plaintiff should not be required to bear the risk of non-collection when one or more of the wrongdoers is unable to pay its proportionate share of damages; the burden of the shortfall in collection has been placed on the wrongdoers in Illinois common law for more than one century;

c. the consistent application of existing jurisprudence provides individualized, fair and complete damage awards which are just and benefit all parties and society; and

d. the judiciary balances the rights of injured persons and legitimate protections for wrongdoers, with the goal of achieving justice in every case.

JOINT TORTFEASOR CONTRIBUTION ACT 740 ILCS 100/3.5 & 5

24. That the Amendments to the Joint Tortfeasors Act provide that “[t]he tortfeasor seeking contribution from the plaintiff employer ... shall receive a credit against his or her liability to the plaintiff in an amount equal to the amount of contribution, if any, for which the employer is found to be liable to that tortfeasor, even if the amount exceeds the employer's liability under the Workers' Compensation Act or the Workers' Occupational Diseases Act.” Section 3.5. Thus, under the Act, a tortfeasor can reduce a plaintiff's recovery by shifting responsibility to a plaintiff's employer -- whose liability is in any event capped workers' compensation law. Indeed, the Act could extinguish altogether the Plaintiff's right to recovery if his employer's fault is sufficient to offset the liability of the named Defendants -- any Defendant's “several” liability can be further reduced (pursuant to Section 3.5 and 5) proportionate to the fault of the Plaintiffs employer.

25. That the Act has an immediate and impending impact upon the Plaintiff by threatening to eliminate or sharply reduce his ability to recover any damages for his injuries. Plaintiff's choices as to the kind of witnesses to call, the legal theories to pursue, the resources to invest in his lawsuit, and settlement negotiations -- together with a host of similar litigation strategies immediately affecting his case -- all depend on the constitutionality of Sections 3.5 and 5.

26. That the Act fosters upon the courts and litigants sham trials with contribution cases filed against third-party defendants who have no exposure, yet whose proportionate share of liability will diminish Plaintiff's recovery pursuant to the Joint Tortfeasor Contribution Act ( 740 ILCS 100/3.5 and 5). When the employer faces no potential liability even when joined as a third-party defendant (under Section 3.5 of the Contribution Act), the claim between the defendant and the employer does not represent a true “cases and controversy.” The employer has little or no incentive to defend the claim. At best, it would hope to recoup its workers' compensation “lien”, pursuant to Section 5 of the Worker's Compensation Act ( 820 ILCS 305/5 ).

27. That when the Plaintiffs recovery is diminished by virtue of the degree of his employer's fault, and when his employer, facing no civil liability itself, is at best only nominally a party, the Plaintiff is denied due process of the law in violation of Article I, Section 2 of the Illinois Constitution.

28. That the degrees of fault attributable to “tortfeasors” other than a Defendant may be determined in an action independent of the plaintiff's claim. Section 5 of the amended Contribution Act allows contribution actions (except those for “healing art malpractice”) to proceed after the plaintiff's claim has been adjudicated. If a Defendant's liability is limited to its percent of fault (Section 2-1117), its ultimate liability to the Plaintiff might not be measured until a subsequent contribution action is resolved. There is nothing in the Contribution Act, however, that give the Plaintiff any standing in such spin-off litigation. Yet his recovery will be jeopardized by its outcome. This offends either judicial doctrines of res judicata and collateral estoppel or due process itself.

29. That Sections 3.5 and 5 deprive the Plaintiff of equal protection as mandated by Article I, Section 2 of the Illinois Constitution. Sections 3.5 and 5 allow the diminution of the Plaintiffs recovery when his injuries arise from work-related injuries. If effectively transfers and enhances the limited liability that an employer enjoys under the Workers' Compensation Act (see, e.g. 820 ILCS 305/5 (b)) to a Defendant. Such a Defendant bears no special relationship to the Plaintiff, but nonetheless has its liability reduced -- or eliminated -- because of the fortuity that the Plaintiff suffered his injuries in the course of his employment. The plaintiff is deprived, in whole or in part, of his right to recover from the defendant, and is graced with no recognizable quid pro quo that would warrant such a deprivation. Application of Section 3.5 and 5, then, would deny injured workers, like the Plaintiff herein, of their rights to equal protection of the laws under the Illinois Constitution.

30. That when a defendant's liability is potentially extinguished by virtue of a third-party's (i.e., an employer's) equivalent fault, as Section 3.5 would permit (in conjunction with Section 2-1117), Public Act 89-7 peculiarly affects plaintiffs who are injured in the course of their employment. No other class of plaintiffs would suffer such a radical diminution or denial of recovery. Thus, an injured worker is affected more by his employer's negligence than by his own. There is no rational basis for this disparate treatment. Sections 3.5 and 5, therefore, violates the guarantees of equal protection established in the Illinois Constitution.

31. That Sections 3.5 and 5 deprive the Plaintiff his right to trial by jury in violation of Article I, Section 13 of the Illinois Constitution. Section 5 allows a Defendant to pursue contribution from other tortfeasors in an action independent of the Plaintiffs lawsuit. Section 2-1117 of the Illinois Code of Civil Procedure limits a defendant's liability to its proportionate fault vis a vis all other tortfeasors. Yet the Contribution Act provides the Plaintiff no standing in a contribution claim. Thus, the Plaintiff's ultimate recovery could be determined by jurors whom he cannot address.

32. That Sections 3.5 and 5 deprive the Plaintiff of his right to a full and complete remedy in violation of Article I, Section 12 of the Illinois Constitution. The operation of the Contribution Act attenuates or eliminates the Plaintiff's right to recover compensatory damages for personal injuries. By doing so, it contravenes the constitutional assurance of a full and complete remedy for such wrongs.

33. That the Plaintiff's cause of action is a form of “property” that qualifies for constitutional protection. Sections 3.5 and 5 impermissibly reduce the value of private property of some members of society in order to benefit a private group in violation of Article I, Section 15 of the Illinois Constitution.

34. That Sections 3.5 and 5 violate the separation of powers doctrine articulated in Article II, Section 1 and Article VI, Section 1 of the Illinois Constitution. Separate trials of contribution claims will inevitably involve the repetition of issues germane to the underlying tort action. They will also involve the impaneling of a second or multiple juries (there is no specific limit to the number of contribution actions that can be brought). The legislative carte blanche for such actions is incompatible with concepts of expedience, finality and conservation of already taxed judicial resources. By allowing tortfeasors license to bring independent contribution actions, and thereby saddling the courts with the waste of time and expense that attend such actions, the legislature has improperly invaded the judicial domain.

35. That Section 3.5 and 5 violate the Illinois Constitution Preamble's assurance of legal, social and economic justice.

The Severability Clause

36. That the severability clause of Public Act 89-7 (Section 990) is null and void in that the constitutionally invalid provisions of the Act are nonseverable from the remaining portions inasmuch as the various provisions of the Act constitute an interdependent legislative package designed to be passed in its entirety rather than as separate pieces. The provisions of the Act are so mutually connected with and dependent on each other, that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not have enacted the residual.

37. That the text of the Act provides evidence that Sections 2-1115.1 (noneconomic damages limitation), 2-1107.1 (jury instructions), 2-1116 (definition of tortfeasor), 20-1117(a) (elimination of joint liability), and 2-1117(b) (escape hatch for healing art professionals from 2-1117(a)) are mutually connected with and dependent on each other, as conditions, considerations or compensations for each other.

38. That members of the legislature were forced to adopt Public Act 89-7 as a legislative scheme against the “civil justice system” in its entirety. Members of the legislature were not given an opportunity to consider Sections 2-1116 and 2-1117 of the Illinois Code of Civil Procedure and Sections 3.5 and 5 of the Joint Tortfeasor Contribution Act on their individual merits, but instead were presented with Public Act 89-7 as a complete and unified package made up of co-dependent parts.

39. That, inasmuch as it is not severable, the aforementioned provisions of Public Act 89-7 violate Article IV, Section 8 of the Illinois Constitution because they fail to be confined to one subject.

40. That the unconstitutionality of any one of the aforementioned provisions renders the remaining provisions null and void, as Public Act 89-7 would be void in its entirety.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiff prays for judgment as follows:

1. That the Court find that Sections 2-1117 and 2-1117 of the Illinois Code of Civil Procedure and Sections 3.5 and 4 of the Joint Tortfeasor Contribution Act to be unconstitutional, null and void;

2. That the Court find that the Act's elimination of joint liability is unconstitutional, null and void;

3. That the Court find that the Act's reduction of a defendant's liability, based upon the negligence of a plaintiff's employer, is unconstitutional, null and void;

4. That the Court find that the Act's severability clause (Section 990) is null and void, thereby rendering Public Act 89-7 void in its entirety;

5. That this Court waive the necessity of the Plaintiff's filing any bond, or in the alternative, that it set a fair and reasonable cost bond for the Plaintiff; and

6. That the Plaintiff have such other and further relief as the Court shall deem necessary and proper.

COUNT XIII
COMPLAINT FOR DECLARATORY RELIEF AND TO OTHERWISE ENJOIN THE CONDUCT OF THE DEFENDANT

NOW COMES the Plaintiff, VERNON BEST, by his attorneys, and complaining of the Defendant Laclede Steel Company, a Delaware Corporation...alleges as follows:

1. The Plaintiff repeats, realleges and incorporates by reference Counts I - VIII as if fully set forth herein.

2. That Laclede Steel Company (“Laclede”) was the Plaintiff's employer at the date, time and place alleged above.

3. That the circumstances surrounding the Plaintiff's injuries give rise to a cognizable claim against the Defendant under the Illinois Workers' Compensation Act (820 ILCS 305/1, et seq.), which he has filed with the Illinois Industrial Commission. (A Copy of that claim, Case No. 95 WC 052181, is attached hereto and made a part hereof as Exhibit “A”).

Statutory Inapplicability

4. That the Code of Civil Procedure has no application to workers' compensation claims pending before the Illinois Industrial Commission. However, Section 2-1003 is so broadly worded and vaguely defined as to arguably apply to Workers' Compensation claims. Thus, Section 2-1003 is unconstitutionally vague, and thus, Plaintiff seeks to enjoin its application to his workers' compensation claim.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiff prays for judgment as follows:

1. That Laclede and its respective agents, servants and employees, be enjoined from soliciting from the Plaintiff any authorization for the release of medical information, as described in the 1995 amendment to Section 2-1003 of the Code of Civil Procedure (735 ILCS 2-1003);

2. That Laclede and its respective agents, servants and employees, be enjoined from soliciting from any healthcare practitioner, except in manners previously allowed before the passage of the Act, the disclosure of any information such practitioner(s) may have acquired in attending the Plaintiff, notwithstanding the Act's amendments to Section 8-802 of the Code of Civil Procedure (735 ILCS 8-802);

3. That Laclede and its respective agents, servants and employees, be enjoined from discussing with any healthcare provider, except in manners previously allowed before the passage of the Act, any information such practitioner(s) may have acquired in attending the Plaintiff, notwithstanding the Act's amendments to Section 8-802 of the Code of Civil Procedure (735 ILCS 8-802);

4. That this Court waive the necessity of the Plaintiff's filing any bond, or in the alternative, that it set a fair and reasonable cost bond for the Plaintiff; and

5. That the Plaintiff have such other and further relief as the Court shall deem necessary and proper.

COUNT XIV
COMPLAINT FOR DECLARATORY RELIEF AND TO OTHERWISE ENJOIN THE CONDUCT OF VARIOUS DEFENDANTS WITH REGARD TO SECTIONS 2-2103 , 2-2104 , 2-2106 OF THE ILLINOIS CODE OF CIVIL PROCEDURE

NOW COMES the plaintiff, Vern Best by and through his attorneys and complaining of the defendants, Taylor, Helms, and Allied and each of them, alleges as follows:

1. That Plaintiff repeats and realleges incorporates by reference herein Counts I through VIII as if fully set forth herein.

2. That the circumstances surrounding the Plaintiff's injuries give rise to a cognizable cause of action against the defendants, Taylor, Helms, and Allied and each of them under the common law of Illinois.

3. That Plaintiff has brought a product liability action as that term is defined in Public Act 89-7 (735 ILGS 5/2-2101).

4. That section 2-2103 mandates that a product must be presumed to be reasonably safe “if the aspect of the product or product component was specified or required ... by a Federal or State statute of regulation promulgated by an agency of the State or Federal Government responsible for the safety or use of the product before the product was distributed in the stream of commerce.”

5. That section 2-2104 establishes that in product liability actions “the design [of the product] shall presumed to be reasonably safe unless at the time the product left the control of manufacturer, have practical and technically feasible alternative design was available that would of prevented the harm without significantly impairing the usefulness, desirability, are marketability of the product.”

7. That section 2-2106 (a) provides the defendant in a product liability action is shielded from liability for failure to warn about dangerous products if it provides pamphlets, booklets, or other written warnings that give adequate notice to either reasonably anticipated users or knowledgeable intermediatories of the risk associated with the product.

8. That in addition section 2-2106 (b) provides that warnings will be deemed adequate if they are in conformity with the general recognized standard in the industry at the time the product was distributed in the stream of commerce.

9. That section 2-2106 (c) provides that the defendant need not warn of material risks that are “obvious” or a “matter of common knowledge” or the knowledge of the particular risk was not “reasonably available when the product was originally introduced into the stream of commerce”.

10. That these provisions violate several aspects of the Illinois Constitution, to wit:

a. the presumption established by section 2-2103 is vague and arbitrary in that it does not give any indication as to what sort of evidence is necessary to rebutt the presumption, it specifies no particular agencies for who the actions of the presumption of safety might attach, and apparently includes agencies of any state. Further, there is no indication that the agencies understood at the time they rendered their decisions that they were adjucating their rights of tort victims.

b. That section 2-2103 is arbitrary and irrational in violation of the due process and equal protection guarantees of the Illinois Constitution, Article I Section 2.

c. That section 2-2103 violates Article 7, section 2 of the Illinois Constitution by depriving person or property without due process of law and denies persons, the equal protection of the laws.

d. That section 2-2103 violates the separation of powers by delegating to unknown agencies the power to mandate the judicial standards applicable to plaintiffs cause of action in declaring the weight to be given evidence or what constitutes conclusive evidence on an issue of fact. That for similar reasons, in section 2-2103 violates the due process guarantees of Article I section 2 of the Illinois Constitution ; the right to jury trial established in Article I section 13 and the “certain remedy clause” of Article I section 12 which mandates that plaintiff shall find certain remedy in the law for all injuries and wrongs and shall obtain justice by law freely, completely and promptly.

e. That section 2-2103 violates Article 7, section 13 of the Illinois Constitution which guarantees that the right of trial by jury as heretofore enjoyed shall remain inviolate.

f. That in addition section 2-2103 violates the special legislation provision of Article 4 section 13 together with equal protection violations in that it confers presumption of innocence on a special class of privileged litigants, defendants in product liability litigation.

g. That section 2-2104 is vague and arbitrary and that it provides no indication of what kind of proof is necessary to overcome the presumption.

h. That section 2-2104 is arbitrary and irrational in violation of the due process clause in protection clauses of the Illinois Constitution, Article I, section 2.

i. That section 2-2104 violates the separation of powers in that it vitiates carefully, reasoned common law decisions of the Illinois Judiciary acting in accordance with its power vested in it by Article VI section 1 of the Illinois Constitution.

j. That section 2-2104 also violates the certain remedy provision of the Illinois Constitution, Article I section 12 by arbitrarily eliminating the consumer expectation theory as a basis for liability in the design claims based on the theory that the product should not have been marketed.

k. That section 2-2104 violates Article 7, section 2 of the Illinois Constitution by depriving person or property without due process of law and denies persons, the equal protection of the laws.

1. That section 2-2106 violates a separation of powers by requiring the courts to deem a warning adequate, thus taking the issue away from the jury.

m. That section 2-2106 also constitute an impermissible delegation of governmental power by in effect confering the power to determine the adequacy of warnings to private individuals.

n. That section 2-2106 violates the right to trial by jury as guaranteed by Article I section 13.

o. That section 2-2106 constitutes impermissible special legislation.

p. That section 2-2106 denies persons injured by unreasonably dangerous product equal production on the law.

q. That section 2-2106 violates Article 7, section 13 of the Illinois Constitution which guarantees that the right of trial by jury as heretofore enjoyed shall remain inviolate

11. That these sections cause the plaintiff immediate or impending injury because the uncertainty of the constitutionality of these provisions. Plaintiff cannot intelligently plan his litigation strategy unless he understands whether these provisions apply to his case. Plaintiffs choices as to legal theories to pursue, the resources to invest in this lawsuit, settlement negotiations, together with a host of similar litigation strategies immediately effecting his case all depend on the constitutionality of section 2-2103, 2-2104 and 2-2106.

Client Reviews
Jonathan Rosenfeld was professionally objective, timely, and knowledgeable. Also, his advice was extremely effective regarding my case. In addition, Jonathan was understanding and patient pertaining to any of my questions or concerns. I was very happy with the end result and I highly recommend Jonathan Rosenfeld.
★★★★★
Extremely impressed with this law firm. They took control of a bad motorcycle crash that left my uncle seriously injured. Without any guarantee of a financial recovery, they went out and hired accident investigators and engineers to help prove how the accident happened. I am grateful that they worked on a contingency fee basis as there was no way we could have paid for these services on our own. Ethan Armstrong, Google User
★★★★★
This lawyer really helped me get compensation for my motorcycle accident case. I know there is no way that I could have gotten anywhere near the amount that Mr. Rosenfeld was able to get to settle my case. Thank you. Daniel Kaim, Avvo User
★★★★★
Jonathan helped my family heal and get compensation after our child was suffered a life threatening injury at daycare. He was sympathetic and in constant contact with us letting us know all he knew every step of the way. We were so blessed to find Jonathan! Giulia, Avvo User
★★★★★
Jonathan did a great job helping my family navigate through a lengthy lawsuit involving my grandmother's death in a nursing home. Through every step of the case, Jonathan kept my family informed of the progression of the case. Although our case eventually settled at a mediation, I really was impressed at how well prepared Jonathan was to take the case to trial. Lisa, Avvo User
★★★★★
Contact Us for a Free Consultation (888) 424-5757
Chicago Office Map