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                               Appellate Court                         Date: 2017.01.03
                                                                       14:33:48 -06'00'




                  Logan v. U.S. Bank, 2016 IL App (1st) 152549



Appellate Court   KIA RASHIKI LOGAN, CARRIE CHANELLE TAYLOR, SEAN
Caption           DEANGELO LOGAN, DUANE WILLIE TAYLOR, WILLIAM
                  LEON TAYLOR, ANGEL LOGAN, JORDAN LENON TAYLOR,
                  and DOMINIQUE SONYA LOGAN, All Individually; and SANDRA
                  LOGAN, as Mother and Next Friend and Guardian of Essence Destiny
                  Taylor, Antwon Assante Taylor, Martrell Francisco Taylor, and Jurea
                  Saquill Taylor, Plaintiffs-Appellants, v. U.S. BANK, a National
                  Association, F. JOHN CUSHING III, MICHAEL J. KRALOVEC,
                  DANIEL C. MEENAN, JR., and KRALOVEC MEENAN, P.C.,
                  Defendants (F. John Cushing III, Michael J. Kralovec, Daniel C.
                  Meenan, Jr., and Kralovec Meenan, P.C., Defendants-Appellees).



District & No.    First District, Sixth Division
                  Docket No. 1-15-2549



Filed             November 4, 2016



Decision Under    Appeal from the Circuit Court of Cook County, No. 2010-L-12471;
Review            the Hon. Brigid Mary McGrath, Judge, presiding.



Judgment          Affirmed.



Counsel on        Philip J. Schmidt, of Chicago, for appellants.
Appeal
                  Michael Resis and Ellen L. Green, of SmithAdmundsen LLC, of
                  Chicago, for appellees.
     Panel                    PRESIDING JUSTICE HOFFMAN delivered the judgment of the
                              court, with opinion.
                              Justices Cunningham and Rochford concurred in the judgment and
                              opinion.


                                               OPINION

¶1         The plaintiffs, Kia Rashiki Logan, Carrie Chanelle Taylor, Sean Deangelo Logan, Duane
       Willie Taylor, William Leon Taylor, Angel Logan, Jordan Lenon Taylor, and Dominique
       Sonya Logan, all individually (collectively referred to as the adult plaintiffs); and Sandra
       Logan, as mother, next friend, and guardian of Essence Destiny Taylor, Antwon Assante
       Taylor, Martrell Francisco Taylor, and Jurea Saquill Taylor (collectively referred to as the
       minors), appeal from an order of the circuit court which granted summary judgment in favor
       of the defendants, F. John Cushing III, Michael J. Kralovec, Daniel C. Meenan, Jr., and
       Kralovec Meenan, P.C. (collectively referred to as the attorney defendants) and denied the
       plaintiffs’ motion for partial summary judgment on their third amended complaint for
       professional malpractice and breach of fiduciary duty. For the reasons that follow, we affirm
       the judgment of the circuit court.
¶2         The adult plaintiffs and the minors are the next of kin of Willie Taylor (decedent) who
       died as the result of being crushed by a motor vehicle as he was unloading a truck on July 28,
       2003. U.S. Bank, as the independent administrator of the estate of Willie Taylor (Estate),
       maintained a wrongful death action against Harold Lindsey, the driver of the truck that
       crushed the decedent, and Carmichael Leasing Company, Inc. (Carmichael), the lessor of the
       truck which Lindsey was driving (hereinafter referred to as the underlying action). Cushing
       prosecuted that action for the Estate. Following trial, the jury returned a $3 million verdict in
       favor of the Estate reduced by 50% for the decedent’s contributory negligence, resulting in a
       net verdict of $1.5 million, and judgment was entered on the verdict. Following the denial of
       the posttrial motions, Lindsey and Carmichael filed an appeal from the $1.5 million judgment
       entered against them. The Estate, represented by Cushing, appealed from the $1.5 million
       contributory negligence reduction in the verdict. The Estate’s appeal was docketed in this
       court as No. 1-07-2353. While the appeals were pending and with the approval of the bank,
       Cushing retained Kralovec, Meenan, and Kralovec Meenan, P.C. (collectively referred to as
       the Kralovec defendants) to assist in the appellate proceedings. The attorney defendants filed
       a motion to voluntarily dismiss the Estate’s appeal, which this court granted. Subsequently,
       the $1.5 million judgment in favor of the Estate was affirmed. U.S. Bank v. Lindsey, 397 Ill.
       App. 3d 437 (2009).
¶3         The plaintiffs filed the instant action against the defendants asserting claims of
       professional malpractice and breach of fiduciary duties by reason of the voluntary dismissal
       of the Estate’s appeal without their consent. In the latest iteration, their third amended
       complaint, the plaintiffs asserted claims of professional malpractice and breach of fiduciary
       duties against Cushing in counts I and III, respectively. In count I, the professional
       malpractice claim, the plaintiffs alleged that Cushing breached the duties owed to them by
       voluntarily dismissing the Estate’s appeal without their consent and without first attempting
       to obtain consideration for the dismissal. In count III, the plaintiffs claimed that Cushing

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     breached his fiduciary duties by failing to inform them that he delegated the responsibility of
     representing the Estate on appeal to the Kralovec defendants and by voluntarily dismissing
     the Estate’s appeal without their consent and without attempting to obtain consideration for
     the dismissal. In counts II and IV, the plaintiffs asserted essentially the same claims against
     the Kralovec defendants as had been pled against Cushing. In count V, the plaintiffs asserted
     a claim of breach of fiduciary duty against U.S. Bank, alleging that it breached its duties by
     failing to inform them that Cushing had delegated the responsibility of handling the Estate’s
     appeal to the Kralovec defendants, failing to properly monitor the progress and status of the
     Estate’s appeal, failing to obtain their authorization before dismissing the Estate’s appeal,
     and by dismissing the Estate’s appeal without first attempting to obtain consideration for the
     dismissal. The five counts contain other allegations against the defendants that are essentially
     restatements of the allegations already noted or merely conclusions unsupported by factual
     allegations upon which the conclusions rest.
¶4        On July 30, 2014, the circuit court entered an agreed order dismissing all claims against
     U.S. Bank, and consequently, U.S. Bank is not a party to this appeal. The Kralovec
     defendants filed a motion for summary judgment directed against the plaintiffs’ third
     amended complaint, arguing both that the plaintiffs are unable to prove that any action on
     their part was a proximate cause of the plaintiffs’ claimed damages and that they did not
     breach their duty by dismissing the Estate’s appeal because their decision to do so was made
     in good faith and well reasoned. Cushing joined in the motion filed by the Kralovec
     defendants. Subsequently, the plaintiffs filed what they styled as motions for partial summary
     judgment on the issues of duty and proximate cause. Following the filing of briefs by all
     remaining parties and having entertained argument, the circuit court granted summary
     judgment in favor of the attorney defendants and denied the plaintiffs’ motion for partial
     summary judgment. This appeal followed.
¶5        In urging reversal of the summary judgment entered in favor of the attorney defendants,
     the plaintiffs argue that the evidentiary material on file established that the attorney
     defendants owed them, as the decedent’s next of kin, a duty of care in the prosecution and
     handling of the Estate’s appeal; that they breached that duty by dismissing the Estate’s appeal
     without their consent; and that, as a proximate result, they have been damaged to the extent
     of $1.5 million. The plaintiffs’ argument as to proximate cause is based upon the assertion
     that, had the Estate’s appeal not been dismissed, the appellate court would have reinstated the
     jury’s gross verdict of $3 million. In this regard, the claimant contends that the trial court in
     the underlying action erred in admitting the testimony of Dr. O’Donnell, who opined that the
     decedent was impaired at the time of the accident leading to his death as a result of morphine
     in his blood. They also assert that there is “not a scintilla of evidence” in the record from the
     trial of the underlying action that the conduct of the decedent contributed to the accident or
     his resulting death.
¶6        As this case comes to us on appeal from a summary judgment entered in favor of the
     attorney defendants, our review is de novo. In re Estate of Hoover, 155 Ill. 2d 402, 411
     (1993). As such, we must independently examine the evidentiary material submitted in
     support of and in opposition to the motion for summary judgment. Arra v. First State Bank &
     Trust Co. of Franklin Park, 250 Ill. App. 3d 403, 406 (1993). We strictly construe all of the
     evidentiary material submitted in support of the motion and liberally construe all evidentiary
     material submitted in opposition. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008).


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¶7          The purpose of a motion for summary judgment is to determine the existence or absence
       of a genuine issue as to any material fact. Illinois State Bar Ass’n Mutual Insurance Co. v.
       Law Office of Tuzzolino & Terpinas, 2015 IL 117096, ¶ 14. Summary judgment is a drastic
       method of disposing of litigation, and it should not be employed unless the pleadings,
       depositions, affidavits, and admissions on file, if any, show that there is no genuine issue as
       to any material fact and the movant’s right to judgment as a matter of law is free from doubt.
       735 ILCS 5/2-1005(c) (West 2014); Bruns v. City of Centralia, 2014 IL 116998, ¶ 12.
       However, when the movant’s right to judgment as a matter of law is free from doubt,
       summary judgment should be encouraged as it aids in the expeditious disposition of the
       litigation. Purtill v. Hess, 111 Ill. 2d 229, 240 (1986).
¶8          Whether labeled professional malpractice or breach of fiduciary duty, the plaintiffs’
       claims against the attorney defendants are based upon their having voluntarily dismissed the
       Estate’s appeal from the jury’s finding of contributory negligence on the part of the decedent
       and the resulting $1.5 million reduction in recoverable damages. This is a case of appellate
       legal malpractice. As in any legal malpractice claim, it was the plaintiffs’ burden to plead and
       prove that the attorney defendants owed them a duty of care, that the attorney defendants
       breached that duty, and that they suffered damages as a proximate result of the breach. Fox v.
       Seiden, 382 Ill. App. 3d 288, 294 (2008). However, assuming arguendo that the attorney
       defendants owed a duty to the plaintiffs, which they deny, and further assuming that the
       attorney defendants breached that duty by voluntarily dismissing the Estate’s appeal, which
       the attorney defendants also deny, we may still directly address the issue of proximate cause
       to determine whether the attorney defendants were entitled to judgment as a matter of law.
       Abrams v. City of Chicago, 211 Ill. 2d 251, 257 (2004).
¶9          To prevail in this case, the plaintiffs were required to prove that, but for the attorney
       defendants having voluntarily dismissed the Estate’s appeal, the appellate court would have
       reversed that portion of the jury’s verdict, which fixed the decedent’s contributory negligence
       at 50%, and reinstated the jury’s gross verdict of $3 million. Whether the plaintiffs could
       recover in the instant action rests upon how the appellate court would have ruled on the
       Estate’s appeal had it not been dismissed. The issue of proximate cause in an appellate legal
       malpractice action is a question of law for the court, not a question of fact. See Governmental
       Interinsurance Exchange v. Judge, 221 Ill. 2d 195, 212-14 (2006).
¶ 10        We first address the plaintiffs’ argument that, in the trial of the underlying action, the trial
       court erred in admitting the testimony of Dr. O’Donnell, the pharmacologist, who testified
       that, at the time of the accident leading to his death, the decedent had morphine in his blood
       and as a result was impaired. The plaintiffs contend that the admission of Dr. O’Donnell’s
       testimony was prejudicial and that, had the Estate’s appeal not been dismissed, the appellate
       court would have found error in its admission. We disagree.
¶ 11        The admission of evidence at trial is a matter left to the sound discretion of the trial court,
       and its resolution of such issues will not be disturbed on review absent an abuse of that
       discretion. Roach v. Union Pacific R.R., 2014 IL App (1st) 132015, ¶ 19; Matthews v. Avalon
       Petroleum Co., 375 Ill. App. 3d 1, 9 (2007). An abuse of discretion occurs only when the
       trial court’s ruling is arbitrary, fanciful, unreasonable, or when no reasonable person would
       adopt the trial court’s view. Roach, 2014 IL App (1st) 132015, ¶ 20; Matthews, 375 Ill. App.
       3d at 9. We find no abuse of discretion in the admission of Dr. O’Donnell’s testimony.


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¶ 12        Prior to the trial of the underlying action, the Estate filed two motions addressed to the
       testimony of Dr. O’Donnell. In its first motion, the Estate sought to bar him from testifying
       to his opinion that the morphine in the decedent’s blood at the time of his death resulted from
       the metabolization of heroin that he had taken that day and that the high amount of morphine
       in the decedent’s blood indicated that he was a heroin abuser. In response to the motion, the
       trial court barred Dr. O’Donnell from testifying that the levels of morphine in the decedent’s
       blood at the time of his death was proof that he was a chronic heroin abuser. In its second
       pretrial motion, the Estate again sought to bar Dr. O’Donnell from testifying that the
       decedent had morphine in his blood at the time of his death. On that motion, the trial judge
       ruled that Dr. O’Donnell would be permitted to testify that there was morphine in the
       decedent’s blood, the amount of morphine that was in his blood, that the amount of morphine
       in the decedent’s blood was enough to cause impairment, and that, in his opinion, the
       decedent was impaired. At trial, and over the objection of the Estate, Dr. O’Donnell testified
       that, at the time of the accident leading to his death, the decedent had morphine in his blood
       in a quantity 10 to 20 times the amount that would customarily be administered to a patient in
       moderate pain, the effect of which would cause disorientation and impaired cognitive and
       motor ability.
¶ 13        Relying upon this court’s decision in Petraski v. Thedos, 2011 IL App (1st) 103218
       (Petraski II), the plaintiffs argue that, had the Estate’s appeal not been dismissed, the
       appellate court would have determined that the trial court erred in admitting Dr. O’Donnell’s
       testimony, and in the absence of any other evidence that the decedent was impaired or
       otherwise negligent, would have reversed the jury’s contributory negligence finding and
       reinstated its gross verdict of $3 million. We find, however, that the plaintiffs’ reliance upon
       Petraski II is misplaced.
¶ 14        Petraski II is a case in which this court held that the trial court’s order granting a new
       trial was not an abuse of discretion based upon its finding that expert testimony of
       intoxication and impairment introduced by the defense at trial was unreliable and prejudicial
       and, as a consequence, should not have been admitted. Id. ¶ 125. The trial court in that case
       found that, given the level of alcohol in the injured party’s blood, it was speculative for the
       defense expert to testify to the possible effects of her alcohol consumption on her actual
       conduct. Id. ¶ 124. However, we did not announce any bright-line test, nor did we conclude
       that admission of an expert’s opinion of impairment would be an abuse of discretion based
       upon an unusually high level of blood-alcohol content. In Petraski v. Thedos, 382 Ill. App. 3d
       22, 27-28 (2008) (Petraski I), this court held that evidence of intoxication is relevant to the
       issue of contributory negligence (see also Marshall v. Osborn, 213 Ill. App. 3d 134, 140
       (1991)), and we never retreated from that proposition in Petraski II. What we said in Petraski
       II was that we found no authority for the proposition that an expert may testify to an
       individual’s impairment based solely upon the fact that her blood-alcohol content was above
       the statutory level at which a person is presumed to be under the influence of alcohol.
       Petraski II, 2011 IL App (1st) 103218, ¶ 115. We noted that one may be under the influence
       of alcohol in varying degrees without necessarily being intoxicated or impaired. Id. We
       believe that the admission of an expert witness’s opinion that an individual was intoxicated
       or impaired based upon blood-alcohol content depends upon the level of alcohol in the
       individual’s blood. When, as in Petraski II, the alcohol level in an individual’s blood,
       although above the statutory level at which an individual is presumed to be under the


                                                  -5-
       influence of alcohol, is relatively low, a trial court does not abuse discretion in barring an
       expert’s opinion that the individual was intoxicated or impaired based solely upon
       blood-alcohol content. However, when the level of alcohol in an individual’s blood is
       unusually high, such as four times the legal limit, a trial court does not abuse its discretion in
       permitting an expert to testify to his or her opinion that the alcohol level in the individual’s
       blood would have had a profound effect upon the individual’s perception, judgment, and
       physical abilities. Marshall, 213 Ill. App. 3d at 140-41.
¶ 15       In this case, we are not dealing with testimony of impairment due to blood-alcohol
       content; rather, this case involved testimony of impairment based upon morphine in the
       decedent’s blood at the time of his death. We believe, however, that the analysis is the same.
       A trial court’s decision to admit or not to admit expert testimony of impairment based solely
       upon the presence of narcotics in an individual’s blood should be informed by the level of
       narcotics in his blood.
¶ 16       Evidence of narcotics in a person’s blood is relevant to the extent that it affects the care
       which the person might take for his own safety. See id. at 140 (“Evidence of a plaintiff’s
       intoxication is relevant to the extent that it affects the care that he takes for his own safety
       ***.”). Dr. O’Donnell testified that, at the time of his death, the decedent had 10 to 20 times
       the level of morphine in his blood that would be customarily administered to a patient in
       pain. He described the effect of such an amount of morphine as “molasses on your brain.”
       According to Dr. O’Donnell, the level of morphine in the decedent’s blood would cause
       confusion, and generally impair cognitive and motor ability. Based upon the level of
       morphine in the decedent’s blood at the time of his death, we cannot say that the trial court
       abused its discretion in admitting Dr. O’Donnell’s opinion testimony. We conclude,
       therefore, that, had the Estate’s appeal not been dismissed, the appellate court would have
       found no error in the trial court’s admission of Dr. O’Donnell’s testimony.
¶ 17       We believe that evidence of a high level of narcotics in a person’s blood is admissible as
       a circumstance to be weighed by the jury in determining whether the person was acting with
       due care for his own safety. As this court held in its decision in Carmichael’s appeal from the
       judgment entered against it in the underlying action: “The jury was free to draw any and all
       reasonable inferences from Dr. O’Donnell’s testimony regarding impairment due to the
       presence of morphine in decedent’s blood, including inferences that decedent was
       contributorily negligent ***.” U.S. Bank, 397 Ill. App. 3d at 458.
¶ 18       In order to establish a proximate causal relationship between the alleged breach of duty
       on the part of the attorney defendants and the damages which the plaintiffs claimed, the
       plaintiffs were required to prove that “but for” the dismissal of the Estate’s appeal, the
       appellate court would have vacated the jury’s contributory negligence finding and reinstated
       the $3 million verdict. In their brief before this court, the plaintiffs have devoted half of the
       argument section to the assertion that: “The Appellate Court would have reinstated the
       $3,000,000.00 verdict.” However, having rejected the argument that, had the Estate’s appeal
       not been dismissed, the appellate court would have found error in the trial court’s admission
       of Dr. O’Donnell’s testimony, we turn to the remainder of the plaintiffs’ argument in support
       of this assertion. The plaintiffs appear to be arguing that, had the Estate’s appeal gone
       forward, the appellate court would have found that the jury’s finding of contributory
       negligence was against the manifest weight of the evidence. To the extent that one might


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       interpret the plaintiffs’ argument to be one of manifest weight, which the attorney defendants
       have assumed in their response brief, we reject the argument.
¶ 19       Jury verdicts may be set aside when they are against the manifest weight of the evidence.
       Mizowek v. DeFranco, 64 Ill. 2d 303, 310 (1976). “ ‘[A] verdict is against the manifest
       weight of the evidence where the opposite conclusion is clearly evident or where the findings
       of the jury are unreasonable, arbitrary and not based upon any evidence.’ ” (Internal
       quotation marks omitted.) Stift v. Lizzardo, 362 Ill. App. 3d 1019, 1028 (2005) (quoting
       Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992)). However, a reviewing court is not at liberty
       to substitute its judgment for that of the trier of fact merely because different conclusions
       might be drawn from the evidence presented at trial or because the reviewing court might
       believe that some other result might be more reasonable. Finley v. New York Central R.R.
       Co., 19 Ill. 2d 428, 436 (1960).
¶ 20       A person is contributorily negligent when he acts without that degree of care which a
       reasonably prudent person would have used for his own safety under like circumstances and
       that action is a proximate cause of his injury. Bizarro v. Ziegler, 254 Ill. App. 3d 626, 630
       (1993). Whether a person has acted with due care is a question for a jury to determine based
       upon the facts of a particular case. Id.
¶ 21       In the underlying action, the defendants charged that the decedent was contributorily
       negligent for, inter alia, failing to maintain a proper lookout and failing to heed the warning
       sounds from the truck which struck him. Harold Lindsey, the driver of the truck which struck
       the decedent, testified that when he shifted the vehicle into reverse a “real loud” beep went
       off in the back of the truck. Melvin Payton, one of the decedent’s coworkers who was present
       when the decedent was struck and saw the truck back into the decedent, testified that he
       heard a “buzzer” from the truck as it was backing up. Arthur Adkins, the Estate’s
       motor-fleet-safety expert, testified that the truck’s alarm was sounding from the time that
       Lindsey began backing up until the truck made contact with the decedent and that the
       decedent would have been able to hear the alarm. And as noted earlier, the jury heard the
       testimony of Dr. O’Donnell that the amount of morphine in the decedent’s blood would
       cause confusion, disorientation, and impaired cognitive and motor ability.
¶ 22       The jury in the underlying action was instructed that whether a person was impaired
       could be considered with other facts and circumstances in evidence in determining whether
       that person was contributorily negligent. We believe that the instruction is a correct statement
       of the law. See Basham v. Hunt, 332 Ill. App. 3d 980, 995 (2002) (intoxication is a
       circumstance to be weighed by the jury in its determination of the issue of due care). And
       based upon the evidence in the record of the underlying action, especially the opinions of Dr.
       O’Donnell, we are unable to find that the jury’s determination that the decedent was
       contributorily negligent, is against the manifest weight of the evidence. We conclude,
       therefore, that, had the Estate’s appeal not been dismissed, the jury’s finding of contributory
       negligence would not have been overturned. Further, we do not believe that the jury’s finding
       that the decedent was 50% contributorily negligent would have been disturbed on appeal, as
       the determination of the percentage of contributory negligence was a matter for the jury to
       decide. Johnson v. Colley, 111 Ill. 2d 468, 475 (1986).
¶ 23       In summary, we find that, had the Estate’s appeal not been dismissed, the jury’s
       determination that the decedent was 50% contributorily negligent would not have been
       reversed, and, therefore, the attorney defendants’ alleged breach of duty in dismissing that

                                                  -7-
       appeal was not the proximate cause of the plaintiffs’ alleged damages. Consequently, as the
       element of proximate cause is absent, we affirm the order of the circuit court granting
       summary judgment in favor of the attorney defendants and denying the plaintiffs’ motion for
       partial summary judgment.

¶ 24      Affirmed.




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