October 2024 IICLE FLASHPOINTS

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Spotlight Author Russell D. Knight

Russell D. Knight, recognized in this month’s Spotlight, is a first-time contributor to IICLE® publications, bringing extensive experience in Illinois divorce and family law. He has authored over 700+ articles on family law and is passionate about legal writing. Knight sees his contributions to IICLE® as a valuable opportunity for professional development, including his work on the most recent edition of FAMILY LAW: DISSOLUTIONS OF MARRIAGE COURT PROCEEDINGS (IICLE®, 2024).

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Criminal Law


Illinois Supreme Court Rules: Smell of Cannabis Alone No Longer Provides Probable Cause for Vehicle Search

In People v. Redmond, 2024 IL 129201, the Illinois Supreme Court held that the smell of cannabis by itself no longer permits the police to search a vehicle, overruling its previous holding in People v. Stout, 187 Ill.2d 77, 718 N.E.2d 58, 240 Ill.Dec. 577 (1987).

In Redmond, an Illinois State Police officer pulled the defendant over for speeding and driving with an improperly secured license plate on Interstate 80 in September 2020. 2024 IL 129201 at ¶8. The officer smelled burnt cannabis emitting from the vehicle during the traffic stop; however, the defendant denied smoking cannabis. Id.

The officer did not see any cannabis in plain view; nor did he see anything that was lit or emitting the cannabis odor. The officer could not recall whether he smelled cannabis on the defendant’s person, and he did not detect any signs of impairment when he spoke to the defendant. 2024 IL 129201 at ¶9.

The officer testified that he searched the vehicle because of the odor of burnt cannabis; because of the defendant’s evasive answers about where he lived; because Interstate 80 was a “known drug corridor”; and because the defendant admitted he was driving from Des Moines to Chicago, both of which were known “hub[s] of criminal activity” according to the officer. 2024 IL 129201 at ¶11. The officer located one gram of cannabis in the center console. Id.

The trial court granted the defendant’s motion to suppress, and the appellate court affirmed. 2024 IL 129201 at ¶¶12, 16.

The Supreme Court analyzed the evolution in state cannabis laws since 2013, in which small amounts were decriminalized, medical cannabis was approved, and prohibitions were put into place against traveling with cannabis not secured in a sealed container. 2024 IL 129201 at ¶¶33 – 43.

The court noted that cannabis laws have changed in such drastic ways that they now rendered the smell of burnt cannabis standing alone insufficient to provide probable cause to search a vehicle. Since the use and possession of cannabis could be legal or illegal depending on the situation, the court held that the odor of burnt cannabis in a vehicle is no longer a sufficient inculpatory fact about who used it, when it was used, or where it was used. 2024 IL 129201 at ¶¶46 – 47.

The court overruled its holding in Stout, which had held that the smell of cannabis, standing alone, permitted the police to conduct a warrantless search of a vehicle. 2024 IL 129201 at ¶54. However, the smell of cannabis still remains a factor when determining whether the police have probable cause to search a vehicle. Id.

The court rejected the state’s argument that the defendant was violating state law by using cannabis in the vehicle or failing to secure the cannabis in a sealed and inaccessible container. The court stated that the officer did not observe any signs of impairment when he spoke to the defendant, nor did he see any signs of cannabis use or paraphernalia in the vehicle. The officer also did not smell cannabis on the defendant, “which undercut[ ] the reasonable belief that Redmond had recently smoked cannabis inside the vehicle while on an Illinois highway.” 2024 IL 129201 at ¶60.

Although the officer’s detection of the strong odor of cannabis emitting from the vehicle established reasonable suspicion to investigate further whether the defendant violated the Illinois Vehicle Code (prohibiting using cannabis while driving and prohibiting transporting cannabis that is not in a sealed, odorless, and remotely inaccessible container), when the investigation did not establish any further inculpatory facts, then the reasonable suspicion never developed into probable cause to search the vehicle. 2024 IL 129201 at ¶63.

Finally, the Supreme Court left open whether the officer acted in good faith when he searched the vehicle because the state did not argue good faith in the trial court or appellate court proceedings. 2024 IL 129201 at ¶64.

For more information about criminal law, see CRIMINAL RECORDS: EXPUNGEMENT AND OTHER RELIEF (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon, IL

Matthew R. Leisten serves as the First Assistant State’s Attorney for the Ogle County State’s Attorney’s Office in Oregon, Illinois. In his role, he provides essential updates on caselaw relevant to search warrants, focusing on issues such as good faith, staleness, and the impact of modern technology on legal procedures. His experience includes handling complex warrants involving advanced technologies like geofences and Triggerfish. Additionally, Leisten contributes to legal education through publications and presentations, ensuring that attorneys stay informed about current legal trends and practices.




Employment & Labor Law


Notable Changes to Personnel Record Review Act Effective January 1, 2025

On January 1, 2025, notable amendments to the Illinois Personnel Record Review Act, 820 ILCS 40/1, et seq., are set to take effect via P.A. 103-0727. The Act, which applies to Illinois employers with five or more employees, provides employees with a general right to review, copy, and correct their personnel records, while also outlining requirements associated with an employer’s gathering and use of information about an employee. 820 ILCS 40/1(b). Employers must take close note of the amendments to the Act to ensure compliance when responding to employee requests beginning in 2025.

The Act now confirms that an employee not only has the right to inspect his or her personnel records, but also to copy and receive copies of records upon submitting a request, which now must be made in writing. 820 ILCS 40/2. A written request includes e-mails and text messages. 820 ILCS 40/2(e). Written requests to inspect and/or copy records, which shall be granted by employers at least two times per calendar year, must be:

  1. made at reasonable intervals (unless otherwise provided under a collective-bargaining agreement); and
  1. made to a person responsible for maintaining the employer’s personnel records (e.g., human resources, payroll, supervisor or manager, etc.). 820 ILCS 40/2(b).

A written request from an employee now must (1) identify what personnel records are being requested or if the request is for all of the records allowed under the Act; (2) specify if the employee is requesting to inspect, copy, or receive copies of the records; (3) specify whether records are to be provided in hardcopy or in a reasonable and commercially available electronic format; (4) specify whether inspection, copying, or receipt of copies will be performed by the employee’s representative, including family members, lawyers, union stewards, other union officials, or translators; and (5) include a signed waiver to release medical information and records to a representative if the records being requested include medical information and records. 820 ILCS 40/2(c). Employers must comply with an employee’s request within seven working days after receipt, but if the employer can reasonably show that such deadline cannot be met, the employer has an additional seven calendar days to comply. 820 ILCS 40/2(d).

The amendments to the Act notably expand the specific documents which may be inspected and/or copied by employees beyond those typically contained in a personnel file to now include: (1) any employment-related contracts or agreements that the employer maintains which are legally binding on the employee; (2) any employee handbooks made available to the employee or that the employee acknowledged receiving; and (3) any written employer policies or procedures that the employer contends the employee was subject to and that concern qualifications for employment, promotion, transfer, compensation, benefits, discharge, or other disciplinary action. 820 ILCS 40/2(a). The Act also clarifies that employees are entitled to inspect and/or copy any personnel documents which are, have been, or are intended to be used in determining that employee’s benefits. The Act now states that if the requested records are maintained in a manner and fashion already accessible by the employee, the employer may instead provide the employee with instructions on how to access that information. 820 ILCS 40/2(d). The Act also now exempts from disclosure to requesting employees any trade secrets, client lists, sales projections, and financial data. 820 ILCS 40/10(h).

In terms of enforcement, the Act now states that if the Illinois Department of Labor fails to resolve a complaint filed against an employer within 180 calendar days, or if the Department certifies in writing that it is unlikely to be able to resolve the complaint within 180 calendar days, an employee may file a civil action to enforce the Act’s provisions. 820 ILCS 40/12(c).

For more information about employment and labor law, see CAUSES OF ACTION: EMPLOYMENT ACTIONS (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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Thomas C. Garretson, Robbins Schwartz, Chicago

Thomas C. Garretson is a partner at Robbins Schwartz in Chicago, focusing on labor and employment law. He counsels public and private sector employers on workplace issues, including investigations, disciplinary actions, and collective bargaining. Tom previously worked as a labor relations attorney for the Cook County Health System and with the U.S. Equal Employment Opportunity Commission. He holds a J.D. from Chicago-Kent College of Law and a B.A. with honors from Michigan State University. Tom is admitted to practice in Illinois and is a member of the Chicago Bar Association.




Ethics & Professional Responsibility


Wisconsin Appellate Court Enforces Limited Scope Retainer Agreement

Brief Summary

In Freude v. Berzowski, 2024 WI App 53 (Aug. 7, 2024), the plaintiff, Michael Freude, sued Jeffrey M. Berzowski and Di Renzo & Bomier, LLC, the defendants, for legal malpractice related to an allegedly time-barred underlying personal injury case. The trial court entered summary judgment in the defendants’ favor on all claims because the retainer agreement between the plaintiff and the defendants limited the scope of representation to the plaintiff’s workers’ compensation claims and specifically excluded third-party claims from the scope of representation. On appeal, the plaintiff argued that defendants had a duty to inform clients of a potential third-party claim, even when the retainer agreement limited the scope of representation to claims for workers compensation. The appellate court upheld the lower court’s judgment, holding that “pursuant to the terms of the limited scope retention agreement, whereby the parties specifically and contractually disclaimed an attorney-client relationship as to third-party claims,” summary judgment was properly entered in defendants’ favor. 2024 WI App 53 at ¶1.

Complete Summary

The plaintiff alleged that on April 2, 2015, he was injured in a slip-and-fall accident while in the course and scope of his employment as a security guard for Allied Barton. 2024 WI App 53 at ¶2. Allied Barton was an independent contractor retained to provide security guards at the facility owned by Nestle USA, Inc. (Nestle). Nestle retained an independent contractor to provide cleaning and maintenance services at the facility.

On December 30, 2016, the plaintiff signed a two-page retention agreement titled “Worker’s Compensation Representation Agreement” (retainer agreement). 2024 WI App 53 at ¶3. The retainer agreement provided that the plaintiff engaged the defendants “to represent [him] and to perform all services which [defendants] deem necessary to such representation with respect to my worker’s compensation claim.” Id. Not only did the retainer agreement identify the scope of claims that the defendants agreed to pursue on plaintiff’s behalf, but it also disclaimed the claims not within the scope of retention:

I understand that the firm is being employed solely to prosecute a worker’s compensation claim on my behalf and that the firm has not been employed to bring actions against third parties as a result of my injury, the date of which is set forth above, nor is the firm being employed to prosecute any employment related claims arising under state or federal law. I acknowledge and understand that if the firm was to be employed to provide representation as to non-worker’s compensation claims that a separate fee arrangement shall need to be agreed upon to compensate the firm for prosecution of such other claims. 2024 WI App 53 at ¶4.

The defendants withdrew from representation with respect to the workers’ compensation claim in December 2017. 2024 WI App 53 at ¶6. On September 21, 2022, the plaintiff filed a legal malpractice action against the defendants alleging that through the investigation of the plaintiff’s worker’s compensation claim against his employer, the defendants “learned that a third-party claim could be made” against Nestle and the independent contractor retained to provide cleaning and maintenance services. 2024 WI App 53 at ¶7.

The appellate court rejected plaintiff’s argument that the “limited-scope representation gave rise to a duty to advise [plaintiff] about potential third-party claims and the applicable statutes of limitations.” 2024 WI App 53 at ¶14. Rather, the court held that the retainer agreement expressly carved third-party claims out of the scope of the defendants’ engagement, and it thus eliminated the basis for a duty to give advice as to such claims. According to the appellate court, “the agreement notified [plaintiff] of the possibility of such third-party claims, informed him that [defendants were] not representing him with respect to such claims, and instructed him what additional step would be needed to have [defendants] undertake such representation.” 2024 WI App 53 at ¶16. On this basis, the court held that plaintiff did not establish an essential element of his claim, the existence of an attorney-client relationship, with respect to any purported third-party claims.

The court additionally declined to adopt the plaintiff’s argument that as a matter of public policy, attorneys have a duty to advise clients of potential third-party claims and the applicable statute of limitations in all cases. The Wisconsin Rules of Professional Conduct allow for reasonable limitations on the scope of representation. Accordingly, the court rejected any attempt to override the enforcement of a reasonable limitation as to the scope of representation contained in the retainer agreement.

Significance of Decision

In many cases, a well-drafted retainer agreement is the first defense to a legal malpractice claim. Effectively identifying what specific claims or subject matters are included within the scope of representation and expressly carving out what claims are excluded from the scope of representation can protect attorneys from legal malpractice claims arising from claims or subject matters not contemplated at the time of retention and for which no fee was received. Other states have ruled differently. See, e.g., Keef v. Widuch, 321 Ill.App.3d 571, 747 N.E.2d 992, 254 Ill.Dec. 580 (1st Dist. 2001) (Illinois appellate court held that although defendants agreed in written agreement to represent plaintiff only in his workers' compensation claims, they had duty to advise plaintiff about possibility of third-party actions and applicable statutes of limitations).

For more information about ethics and professional responsibility, see ELEMENTS OF ILLINOIS LAW: PRACTICING ETHICALLY (IICLE®, 2023). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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Terrence P. McAvoy, Lawyers for the Profession, Hinshaw & Culbertson LLP, Chicago

Terrence McAvoy is a partner at Hinshaw & Culbertson LLP with over 35 years of experience in civil litigation. He specializes in defending attorneys and law firms in professional liability cases involving malpractice, breach of contract, fiduciary duty, fraud, and more. McAvoy has extensive trial and appellate court experience and previously served as national claims counsel for a professional liability insurance carrier. He has been recognized as a Leading Lawyer and holds the AV® Peer Review Rating for legal ability and ethics.

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Katherine G. Schnake, Lawyers for the Profession, Hinshaw & Culbertson LLP, Chicago

Katherine G. Schnake is a partner at Hinshaw & Culbertson LLP, specializing in professional liability defense for lawyers and law firms. She provides counsel on ethics and legal responsibility, and her litigation experience includes civil liability cases. Schnake is also a former adjunct professor at the University of Illinois Chicago School of Law. In addition to her legal practice, she is actively involved in civic activities and has a passion for running marathons and equestrian sports.

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April K. Toy, Lawyers for the Profession, Hinshaw & Culbertson LLP, Chicago

April K. Toy is an accomplished attorney with a focus on professional liability, ethics, and risk management. As a partner at Hinshaw & Culbertson LLP, she advises clients on a broad range of legal matters, including insurance coverage, corporate governance, and regulatory compliance. April is deeply involved in the legal community, having served as Chair of the State Bar of Wisconsin’s Ethics Committee. A frequent speaker and author, she shares her insights on ethics and professional responsibility through various continuing legal education programs.




Family Law


Trial Court Reversed for Failing To Rule on Issue of Temporary Support Request as Part of Petition for Order of Protection

In an independent action for an order of protection, the trial court in Martinez v. Leon, 2024 IL App (1st) 231058, issued an emergency order of protection and subsequently a plenary order of protection, but denied the petitioner’s request for temporary support from the respondent with whom she shared a child. The trial court denied the request twice, the first time because the court believed the respondent did not have adequate notice of the proposed support order and the second time because it believed the Domestic Relations Division (Cook County) was the appropriate division to deal with the support issue. 2024 IL App (1st) 231058 at ¶1. The petitioner appealed, and the appellate court reversed. The Illinois Domestic Violence Act of 1986 (IDVA) 750 ILCS 60/101, et seq., lists several remedies that may be included in an order of protection. One of those remedies is temporary child support. Even if the trial court does not customarily rule on child support issues, under the IDVA, it has the authority to do so when requested as a remedy along with an order of protection. Further, the court only has the discretion to not decide “contested” support issues, meaning it must decide any uncontested issues of temporary support, and if the issue of temporary support is contested, the trial court must still decide the issue if it is necessary to protect a child from abuse, neglect, removal, concealment, or separation. 2024 IL App (1st) 231058 at ¶25. Because the order of protection in this matter was entered by default and, therefore, uncontested, the trial court did not have the discretion to decline to rule on the requested remedy. 2024 IL App (1st) 231058 at ¶26. The appellate court further stated that whenever a trial court exercises discretion to not rule on a request for temporary child support, it has a mandatory duty under §§212(b) and 212(c) of the IDVA to reserve the issue and transfer the matter to the appropriate court or division to rule on the issue. If the court is unable to effectuate a transfer for any reason, it must decide the issue itself. 2024 IL App (1st) 231058 at ¶28.

Under Supreme Court Rule 102, Personal Service of Respondent Effectuated Via Zoom Court Appearance with Respect to a Claim for Temporary Child Support in Connection with a Petition for Order of Protection

In an independent action for a petition for order of protection, the trial court in Martinez, supra, declined to rule on the petitioner’s request for temporary child support (see above). The court analyzed whether the trial court satisfied the notice requirements for a default plenary order of protection that included a request for temporary child support. 2024 IL App (1st) 231058 at ¶23. The court noted that while most remedies under the IDVA may be ordered if the respondent has notice of the underlying petition, temporary child support requires actual notice, which includes personal service or the entering of a general appearance. 2024 IL App (1st) 231058 at ¶24. In this case, the record reflected that the respondent was personally served at the Zoom court date, which ultimately set the hearing on the underlying petition. Id. Under Supreme Court Rule 102, a respondent who appears for a remote proceeding and is read the operative terms of the order of protection filed against him or her is deemed to have been personally served with process. Because the respondent appeared on the date that the court set a hearing date on the petition for plenary order of protection, and because he subsequently failed to appear on the following hearing date, the IDVA authorized the trial court, by the entry of the default on the petition for plenary order of protection to deal with temporary child support. No additional notice to respondent was required. Id.

For more information about family law, see ADOPTION LAW (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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Donald C. Schiller, Schiller DuCanto & Fleck LLP, Chicago, Lake Forest & Wheaton

Donald Schiller is the Chair Emeritus and Of-Counsel at Schiller DuCanto & Fleck LLP. He co-founded the firm in 1981, making it the largest family law practice in the U.S. Known for handling high-profile divorce cases, Schiller has been recognized by numerous publications and has served in significant roles within the Illinois and American Bar Associations. He has also been a lecturer at the University of Chicago Law School and is a well-published author and speaker in the field of family law.

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Michelle A. Lawless, Law Office of Michelle A. Lawless LLC, Chicago

Michelle A. Lawless, founder of The Law Office of Michelle A. Lawless LLC, has over 20 years of experience in family law. After a distinguished career at a prestigious litigation firm, she started her own practice to offer a more compassionate and resolution-focused approach. Michelle specializes in collaborative law, mediation, and attorney-assisted mediation, helping clients navigate family disputes with minimal conflict. She is recognized for her thought leadership, extensive financial experience, and dedication to creating better outcomes for families.




Real Estate Law


A Tale of Two Owners, Competing Leases, and the Tenant Caught in the Middle

Coowning real property with multiple owners can often pose difficulties when management objectives are not in sync, especially if there is no written agreement to help the parties navigate future situations or issues when differences or disputes arise. In addition, third parties run the risk of being caught in the crosshairs in such situations, as one tenant recently discovered in the First District’s decision in Lau v. Dasi, 2024 IL App (1st) 231470-U.

Facts

Helen Lau coowned a residential property as tenants in common with her brother and his wife, Peter and Sally Lau, who held their interest in a trust (the Trust). 2024 IL App (1st) 231470 at ¶¶4, 6. Helen owned a one-third interest in the property, while the Trust held the remaining two-thirds interest. Id. When Peter passed away, Sally effectively controlled the Trust. Id. The defendant, Kashyap Dasai, after having lived in the residence for years without apparent issue, entered into competing leases with each of the coowners for differing terms and rental amounts. 2024 IL App (1st) 231470 at ¶5. At some point, Helen served Dasai with a notice of lease termination while Sally simultaneously entered into a new lease with him. 2024 IL App (1st) 231470 at ¶8. When Dasai did not move out of the property, Helen filed an eviction action against him. 2024 IL App (1st) 231470 at ¶9. Neither Sally nor the Trust was made a party to the lawsuit.

Dasai moved to dismiss Helen’s complaint, arguing that Helen had no standing to bring her complaint, as he was a legal tenant with a valid lease and that Helen had no “legally cognizant interest,” as she was not his landlord. Id. The trial court granted the motion to dismiss while expressly contending that it made no findings as to whether Sally had a superior right to possession than Helen or whether Dasai had a valid lease. 2024 IL App (1st) 231470 at ¶10. Helen filed a timely appeal.

Appellate Court

The appellate court reversed the lower court’s ruling and remanded the matter for further proceedings. 2024 IL App (1st) 231470 at ¶¶2, 22 – 23. In doing so, the appellate court found that the lower court, notwithstanding the language of the trial court’s ruling, had essentially determined that Sally had a superior right to possession as compared to Helen, a contention not supported by Illinois law. 2024 IL App (1st) 231470 at ¶14.

It is undisputed that Helen had a one-third interest in the subject property, while Sally had a two-thirds interest via the Trust. Id. “Each co-owner of real estate has an equal right to enter every part of the land.” 2024 IL App (1st) 231470 at ¶15, citing Fyffe v. Fyffe, 292 Ill.App. 539, 11 N.E.2d 857 (4th Dist. 1937). Conversely, no coowner has the right to exclude any coowner(s) from the property or appropriate the entire parcel for his or her sole use. Id. Finally, a coowner cannot grant to a lessee a greater right of possession than the coowner possesses. Id.; Fyffe, supra.

It follows then that all coowners must consent to create or renew a lease. 2024 IL App (1st) 231470 at ¶16, citing Daugherty v. Burns, 331 Ill.App.3d 562, 772 N.E.2d 237, 265 Ill.Dec. 199 (4th Dist. 2002). An exception to this rule may be made if a portion of the property representing a particular coowner’s interest can be severed from the rest of the property without prejudice to the others. Id.; Daugherty, supra. Otherwise, a lease that is not consented to by all coowners is not binding on the coowners who are not parties to the lease, and the lease is invalid in its entirety. 2024 IL App (1st) 231470 at ¶¶17 – 19. Fyffe, supra; Daugherty, supra; Hall v. Boyd, 347 Ill.App. 60, 106 N.E.2d 137 (4th Dist. 1952).

Here, Sally unilaterally executed her lease with Dasai. Unless a portion of the property representing Sally’s interest could be severed from the rest of the subject property, her lease with Dasai was invalid and could not be enforced against Helen to Helen’s prejudice. 2024 IL App (1st) 231470 at ¶20. Given the holdings in Fyffe, Daugherty, and Hall, if the leased portion could not be severed, Helen’s termination and subsequent eviction proceeding were appropriate and Dasai had to relinquish possession. Id.

Because the trial court did not evaluate whether the leased portion of the property could be severed from the rest of the property, the appellate court remanded the case for further factual findings on that question. 2024 IL App (1st) 231470 at ¶22. The appellate court also instructed the trial court on remand to determine whether Sally needed to be joined as a party for the fair and complete resolution of the matter. 2024 IL App (1st) 231470 at ¶23.

It goes without saying that it is critical for prospective tenants to make sure that they are executing a lease that is fully authorized by the ownership. Here, Dasai may have tried to play the coowners against each other to his perceived benefit, a risky proposition not supported by Illinois law. Similarly, Sally may have unwittingly gotten herself involved in the parties’ litigation by attempting to exert a superior interest to Helen’s in the property. However, the parties have arrived at the current situation. Unless the leased portion can be effectively severed, both Helen and Sally will need to come to terms with how to responsibly navigate their coownership of the property moving forward.

For more information about real estate law, see MORTGAGE FORECLOSURE: CORRESPONDING ISSUES (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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Genevieve M. Daniels, Genevieve M. Daniels, P.C.

Genevieve M. Daniels, a versatile litigator and transactional attorney, specializes in commercial, employment, and real estate law. She offers comprehensive legal services, including real estate transactions, employment law compliance, and dispute resolution. Genevieve's unique experience allows her to provide clients with strategic insights and effective advocacy. She is also an active presenter, arts supporter, and passionate about Persian cooking and adventure travel.




Workers’ Compensation


Claimant Failed To Prove Irritant-Induced Bronchial Reactivity or Permanent Exacerbation of Preexisting Asthma from Exposures to Fumes

In Ameren Illinois v. Illinois Workers’ Compensation Commission, 2024 IL App (5th) 220606WC-U, the court found that the Commission’s original decision was not against the manifest weight of the evidence. The Commission found the claimant failed to prove that he suffered from a permanent and irreversible condition of irritant-induced bronchial reactivity and affirmed and adopted the arbitrator’s decision. 2024 IL App (1st) 231470-U at ¶1. The circuit court found that the decision was against the manifest weight of the evidence and remanded the case to the Commission. On remand, the Commission awarded the claimant medical expenses, temporary total disability benefits, and permanent and total disability benefits. The employer appealed the decisions.

The claimant was employed as a gas journeyman who repaired and replaced natural gas lines. He alleged that he inhaled chemical fumes on September 4, 2013, and October 8, 2014. 2024 IL App (5th) 220606WC-U at ¶2. The first incident occurred while determining whether a gas line still contained gas. He had to rupture the line and as a result, a liquid came out that turned red and foamy. He had difficulty breathing and a tight chest. He was taken to a hospital where his oxygen saturation levels were noted as normal. His partial pressure of oxygen in his arterial blood gas was 71 millimeters of mercury (mm Hg), which was considered low with a normal range being 75 – 100 mm Hg. 2024 IL App (5th) 220606WC-U at ¶12. This finding was in line with a result of 68 mm Hg obtained 14 years earlier. Id. The diagnosis was a respiratory problem as the primary impression and bronchitis and chemical exposure as additional impressions. Medications were prescribed, and the claimant was told to follow up with his personal physician and released to light duty. 2024 IL App (1st) 231470-U at ¶13.

The claimant was off work for two days and returned to his regular position for nine months until May 12, 2014. 2024 IL App (1st) 231470-U at ¶14. He saw Dr. Adele Roth on September 9, 2013, who had been his personal physician since 1999. He told her he had a persistent cough for five days. 2024 IL App (1st) 231470-U at ¶15. Her exam revealed a normal respiratory rate with diffuse inspiratory and expiratory wheezes. Id. She diagnosed acute bronchitis and told him to continue with the albuterol inhaler she first prescribed in 2002. Id. At an appointment on September 19, 2013, she diagnosed acute sinusitis, instructed him to continue using the inhaler, and referred him to Dr. Peter Tuteur at Washington University. 2024 IL App (1st) 231470-U at ¶16.

He presented to Dr. Tuteur on November 6, 2013, and described the exposure to the fumes from the reddish foam causing chest tightness, shortness of breath, coughing, and a rusty sewer fluid taste in his mouth. The claimant told Dr. Tuteur he could no longer shovel continually and reached a plateau of 10 to 15 minutes before having to stop. 2024 IL App (1st) 231470-U at ¶17. Dr. Tuteur’s report noted the symptoms of breathlessness were triggered by increasing exercise, cold air, fossil fuel combustion, barbeque smoke, cleaning solutions, and other irritants. Id. The report stated that when this develops, he takes an albuterol inhaler, which provides some relief in a half hour, but it takes more than an hour and a half to return to baseline. Id. At the time Dr. Tuteur had the understanding that the claimant was previously free from breathing difficulties. A pulmonary function study taken at this appointment revealed a minimal obstructive abnormality. A methacholine challenge test was positive for bronchial reactivity. Dr. Tuteur’s diagnosis was an irritant induced bronchial reactivity. 2024 IL App (1st) 231470-U at ¶¶19 – 20.

At an appointment with Dr. Roth on November 14, 2013, she found a normal respiratory rate and pattern with normal breath sounds. 2024 IL App (1st) 231470-U at ¶21. She diagnosed reactive airway disease and noted the claimant was first diagnosed with asthma in adulthood and that this current exacerbation began six weeks ago. Id. At the annual appointment with Dr. Roth on May 9, 2014, he complained of shortness of breath. She found a normal respiratory rate pattern with no distress but coarse breath sounds. 2024 IL App (1st) 231470-U at ¶23.

The claimant saw Dr. Tuteur on May 9, 2014, telling him that at work he would experience serious pulmonary problems. The claimant related exposures to vehicle exhaust in the parking lot, gas odors in the mechanic shop, and cold air among others. Id. He also related that going to restaurants and commercial venues often initiated exacerbations requiring use of the inhaler. Id. Dr. Tuteur ordered a pulmonary function study that he interpreted as demonstrating marked bronchial reactivity, which compared to previous studies reflected a more severe obstruction. Dr. Tuteur was concerned there could be initiation of bronchial remodeling or scarring of bronchial passages. 2024 IL App (1st) 231470-U at ¶24. He diagnosed “severe irritant induced workplace associated bronchial reactivity,” which was “permanent and irreversible.” 2024 IL App (1st) 231470-U at ¶25. He recommended environmental controls at home and concluded that it was medically contraindicated to return to the workplace. Id. Consequently, the claimant was off work on disability from May 1, 2014, to September 21, 2014. 2024 IL App (1st) 231470-U at ¶26.

Dr. Thomas M. Hyers, a pulmonologist, examined the claimant pursuant to §12 of the Workers’ Compensation Act, 820 ILCS 305/12, et seq., on September 9, 2014. 2024 IL App (1st) 231470-U at ¶29. Dr. Hyers knew the claimant had preexisting asthma, which was contained in the medical records prior to the workplace exposure. He disagreed with Dr. Tuteur’s diagnosis, stating the workplace exposure did not cause the asthma. He further stated that any exacerbation of the asthma symptoms from the workplace exposure resolved by the time of his visit with Dr. Roth on September 19, 2013. 2024 IL App (1st) 231470-U at ¶30. Dr. Hyers found no permanent disability.

The claimant returned to work full time on September 22, 2014, and experienced a second exposure on October 8, 2014. 2024 IL App (1st) 231470-U at ¶¶30 – 31. These consisted of mercaptan, the odorant added to natural gas and fumes from propane fueled forklifts, and diesel fumes from trucks. 2024 IL App (1st) 231470-U at ¶32. He was taken to St. Elizabeth’s Hospital where Dr. Roth examined him. She described the patient as comfortable with no objective symptoms of respiratory distress. She chose to keep him overnight for observation. He was discharged the next day.

On March 30, 2015, Dr. Anne-Marie M. Puricelli performed an independent medical examination because of his claim for disability insurance benefits. 2024 IL App (1st) 231470-U at ¶36. She diagnosed reactive airway disease and opined he was not able to work as a gas journeyman leadman. She examined him at the respondent’s request on April 18, 2017, and arrived at the same diagnosis and felt he was “currently disabled from all occupations.” 2024 IL App (1st) 231470-U at ¶37.

The question on appeal was whether Commission’s initial decision was against the manifest weight of the evidence. The Commission found the claimant failed to prove any permanent ill effects from the two exposures. The respondent had paid for medical treatment and other benefits for the temporary exacerbations. The Commission found that any perceived progression of symptoms would be compatible with the claimant’s ten plus year history of symptoms compatible with asthma. 2024 IL App (1st) 231470-U at ¶46. The respondent argued this finding was reasonable based on Dr. Hyers’ opinions. The claimant argued the Commission’s decision was unreasonable because Dr. Anderson, Dr. Tuteur, and Dr. Puricelli determined he was unable to work after the two exposures and because, after the exposures, he required the constant use of steroids, emergency inhalers, oxygen, and strict environmental controls. 2024 IL App (1st) 231470-U at ¶47.

The court’s opinion comments the fact that the two exposures caused the claimant to become more bronchial reactive is not the only reasonable inference. “An alternative reasonable inference is that his asthma attacks from the two exposures were symptomatic of, or indicative of, naturally worsening asthma.” 2024 IL App (1st) 231470-U at 48.

For the court, Dr. Tuteur’s theory of the remodeling or irritation of the bronchial areas could only be objectively determined if a series of biopsies by bronchoscope were performed based on Dr. Tuteur’s testimony. Dr. Hyers regarded such remodeling as unsubstantiated. Dr. Hyers testified that exacerbations of asthma can lead to remodeling in general, but he could not say what happened with the claimant’s airways and that neither could Dr. Tuteur.

The court’s opinion comments that the Commission had the right to believe Dr. Hyers’ testimony over Dr. Tuteur’s. Dr. Hyers examined the claimant and reviewed the medical records that Dr. Tuteur did not initially review before Dr. Tuteur arrived at his opinion on causation. Dr. Hyers felt the two asthma attacks were consistent with asthma attacks the claimant had once a year from 2009 – 2013. 2024 IL App (1st) 231470-U at 54. Medical records showed that from May 1999 to August 2013, the claimant had 15 or 16 separate occasions of pulmonary symptoms. Id. Thus, it was reasonable for the Commission to believe Dr. Hyers over Dr. Tuteur, and the court could not say it was clearly evident that Dr. Tuteur was more credible than Dr. Hyers.

Finally, the court noted that while there was evidence that the claimant’s asthma was substantially worse since the exposures, it was for the Commission to decide what inferences should be drawn from the evidence. “Correlation is not necessarily causation.” 2024 IL App (1st) 231470-U at 56. That the two exposures caused the asthma to become worse is not the only reasonable inference especially considering he worked on gas lines for more than 20 years and benzene and mercaptan were used. “The Commission might have had an unanswered question of what made these two chemical exposures objectively different from those [the claimant] must have experienced plenty of other times in his career as a gas journeyman.” Id.

For more information about workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (IICLE®, 2023). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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Joseph P. Basile

Joseph P. Basile, Chicago, concentrates his practice in workers’ compensation and civil litigation. He is a chair-qualified arbitrator for the Circuit Court of Cook County Mandatory Arbitration Program, has been a faculty member at annual IICLE® workers’ compensation seminars, and is the author of the monthly workers’ compensation column for IICLE®’s FLASHPOINTS. He is a member of the Chicago and Illinois State Bar Associations. Mr. Basile received his B.S. from St. Louis University and his J.D. with distinction from the University of Illinois Chicago School of Law, where he was a member of The John Marshall Law Review.





FLASHPOINTS SPOTLIGHT OCTOBER 2024


Our October 2024 FLASHPOINTS Author Spotlight recognizes the contributions of Russell D. Knight, who wrote for FAMILY LAW: DISSOLUTIONS OF MARRIAGE COURT PROCEEDINGS (IICLE®, 2024) as a first-time contributor to an IICLE® publication.

Knight is passionate about legal writing and professional improvement, and the Institute has provided him with opportunities to pursue both: “IICLE® allows me to develop my skills and showcase that development. I am humbled to be able to contribute.”

Knight, of the Law Office of Russell D. Knight, has been practicing family law as a Chicago divorce lawyer since 2006. He has been published numerous times by the Illinois State Bar Association and has been quoted regarding family law in NBC News, Parent’s Magazine, Inc. Magazine, Newsweek, and more. Knight is licensed in both Illinois and Florida. He received his B.S. from Bradley University and his J.D. from the University of Illinois College of Law.




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