Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil cases Simpkins v. CSX Transportation and Wisnasky-Bettorf v. Pierce and criminal cases People v. Chapman and People v. Cathey.

CIVIL

Simpkins v. CSX Transportation

By Alyssa M. Reiter, Williams Montgomery & John Ltd.

Secondary exposure to asbestos laid the groundwork for the Supreme Court to analyze the issue of “duty” in negligence cases. Annette Simpkins (substituted by her daughter upon her death) sued various defendants, alleging that she had been injured as a result of exposure to take-home asbestos from the workplace on her husband’s clothing.  

The circuit court dismissed with prejudice the counts against defendant CSX. The Appellate Court reversed and remanded. On review, the Supreme Court agreed that the dismissal with prejudice should be reversed.  However, it held that, as currently alleged, the plaintiff’s complaint was insufficient to establish that defendant owed a duty of care to Annette. Accordingly, it reversed and remanded with directions that plaintiff be allowed to file an amended complaint.

Although the complaint alleged three counts against the defendant (for strict liability, willful and wanton conduct, and negligence), the Court limited its review to the question of whether the complaint sufficiently established duty for purposes of a complaint for negligence. The Court clarified that there need not be a “direct relationship” between the parties in order to impose a duty. Previous cases had held that there must be a relationship between the parties such that the law imposes upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff. The Court explained that this “relationship” is the sum of four factors: (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant.  

In this case, the Court found that the plaintiff had not alleged sufficient facts, under factor one, as to what the defendant actually knew or should have known about the nature and potential harm of asbestos during the relevant timeframe of exposure. The Court thus remanded to afford plaintiff an opportunity to plead those facts.

Justice Freeman (with Justice Burke joining) dissented. The dissent focused on public policy considerations and concluded that there should be no duty, under these circumstances, as a matter of law.

Wisnasky-Bettorf v. Pierce

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

Reversing the appellate and circuit courts, the Illinois Supreme Court has clarified which of several confusing paragraphs of Section 7-61 of the Election Code, 10 ILCS 5/7-61 (West 2010), govern a political party's obligation to file a resolution to fill a nomination vacancy when no candidate appears on the primary ballot and no write-in candidate is nominated. Peggy Pierce had succeeded in getting Whitney Wisnasky-Bettorf kicked off the ballot as the Republican candidate for a seat on St. Clair County's board of review based on the failure of the local Republican Party central committee to file a resolution designating Wisnasky-Bettorf as the candidate. Under a 2009 amendment of the relevant portion of the Election Code, a candidate must show basic "grassroots" support by filing nominating petitions with the minimum number of signatures, a statement of candidacy, notice of appointment and proof of filing a statement of economic interests within 75 days after the general primary. The new version of the applicable paragraph (9), however, does not require a resolution as Pierce claimed. The sections (paragraphs 3-6) addressing resolutions to fill a vacancy referred to situations where a candidate was nominated in a primary.

Although the election had come and gone long before the supreme court released its opinion, it decided the case anyway based on the public interest exception to the mootness doctrine. The public's substantial interest in filling vacancies for public office and the lack of judicial or legislative clarity on the subject led the court to conclude that the case easily passed the test for falling within the exception.

CRIMINAL

People v. Chapman

By Kerry J. Bryson, Office of the State Appellate Defender

Robert Chapman was charged with first degree murder of his girlfriend, Cassandra Frazier, with whom he shared an apartment at the time of the incident. On the evening of February 22, 2005, Chapman and Frazier got into a verbal argument, which turned physical and resulted in Chapman stabbing the victim multiple times.

In 2003, Chapman had been convicted of domestic battery against Frazier. At the murder trial, the State sought to introduce that prior conviction as propensity evidence under Section 115-20 of the Code of Criminal Procedure. Chapman argued against admission, contending that because first degree murder was not specifically enumerated in that statute, it could not serve as a triggering offense for admission of the prior domestic battery conviction.

The Supreme Court concluded that the prior conviction was properly admitted under the statute because the statute contained language allowing admission of certain prior offense evidence in a prosecution for any of the “types of offenses” where the same victim is involved.  The Court rejected Chapman’s argument that the statute was limited to prosecutions for only those offenses specifically listed in the statute, noting that such an interpretation would render the “types of offenses” language superfluous and meaningless.  The Court also noted that the legislature’s choice of language made “perfect sense” given that it would be “highly unlikely, if not impossible” that a prior murder conviction could be used as evidence in a subsequent prosecution for another crime committed against the same victim.

Concisely stated, the Court held that “Section 115-20 of the Code allows the admission of a prior domestic battery conviction to be used to show propensity to harm the same victim in a subsequent murder trial when the trial court properly determines that the alleged murder victim was a household or family member of the accused and that the incident charged was the result of domestic violence.”

The Court’s decision is notable in that it continues the relatively recent trend of allowing propensity evidence in an ever-increasing list of circumstances, further abrogating the long-standing common law ban on such evidence.

People v. Cathey

By Kerry J. Bryson, Office of the State Appellate Defender

Elron Cathey was charged with attempt first degree murder and aggravated battery with a firearm. Prior to trial, defense counsel filed a motion in limine seeking to prevent the State from impeaching Cathey with his prior convictions of the same offenses in two prior cases. The court declined to rule on the motion before trial. Once Cathey testified, the court allowed impeachment with the prior aggravated battery with a firearm conviction and a prior drug conviction, but not with the prior attempt murder. Cathey was acquitted of attempt first degree murder and convicted of aggravated battery with a firearm.

Cathey’s trial attorney also represented him in direct appeal. Counsel did not raise an appeal issue regarding the timing of the court’s ruling on the prior conviction impeachment. Cathey’s conviction was affirmed.

In a pro se post-conviction petition, Cathey argued (among other things), that counsel rendered ineffective assistance on direct appeal for failing to challenge the court’s delayed ruling on impeachment. The petition was summarily dismissed.

In his petition, defendant did not cite the Supreme Court’s decision in People v. Patrick, 233 Ill. 2d 62 (2009). The Supreme Court vacated a portion of the appellate court’s decision which had held that Patrick does not apply retroactively to cases on collateral review, finding that such an issue was not properly before the court.

In the closely-related issue that was presented in Cathey’s petition, the Supreme Court found that there was at least an arguable basis for the claim appellate counsel was ineffective for not pursuing a challenge to the delay in the impeachment ruling.  The Court noted that the appellate court had issued several decisions addressing the same issue during the time of Cathey’s trial and appeal, including People v. Phillips, 371 Ill. App. 3d 948 (2007) which was decided a few weeks before the decision in Cathey’s direct appeal was issued.  The Court reversed the summary dismissal and remanded for second-stage post-conviction proceedings.

Whether Cathey can meet the higher “substantial showing” standard for second-stage review and obtain an evidentiary hearing on his claim remains to be seen in this case. The question of whether Patrick applies retroactively remains for a future case where that issue is squarely presented.

This case shows the importance that both trial and appellate counsel remain informed of the current state of the law on potential issues and take steps to preserve a client’s challenge where the question is unsettled, where there is a split of authority, and even where the existing authority goes against a client’s position.