Contributory Negligence

Recent Illinois Case: Fox v. Seiden

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The First District held that summary judgment was improperly entered in favor of a malpractice plaintiff. In the underlying case, the malpractice plaintiff was found liable for attorneys’ fees even though she was not a defendant in the only count under which fees could be awarded. The malpractice defendants failed to make this argument in the underlying case.

The First District reversed the trial court’s summary judgment decision because the malpractice plaintiff: (a) failed to offer expert evidence that the malpractice defendants did not meet the standard of care; and (b) possibly was contributorily negligent.

The First District also rejected the malpractice defendants’ argument that summary judgment should have been entered in their favor. The court held that whether the malpractice plaintiff could have appealed the attorneys’ fee award was a question of fact not appropriate for summary judgment. The court similarly held that other proximate cause arguments raised issues of fact.

(This is for informational purposes and is not legal advice.)

Fox v. Seiden, 2016 IL App (1st) 141984

Zych v. Jones, 84 Ill. App. 3d 647, 406 N.E.2d 70 (1st Dist. 1980)

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Zych v. Jones, 84 Ill. App. 3d 647, 406 N.E.2d 70 (1st Dist. 1980)

Orzel v. Szewczyk, 391 Ill. App. 3d 283, 908 N.E.2d 569 (1st Dist. 2009)

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Orzel v. Szewczyk, 391 Ill. App. 3d 283, 908 N.E.2d 569 (1st Dist. 2009)

Nika v. Danz, 199 Ill. App. 3d 296, 556 N.E.2d 873 (4th Dist. 1990)

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Nika v. Danz, 199 Ill. App. 3d 296, 556 N.E.2d 873 (4th Dist. 1990)

Talley v. Yonan, 72 Ill. App. 3d 851, 391 N.E.2d 79 (1st Dist. 1979)

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Talley v. Yonan, 72 Ill. App. 3d 851, 391 N.E.2d 79 (1st Dist. 1979)

Barth v. Reagan, 190 Ill. App. 3d 516, 546 N.E.2d 87 (2d Dist. 1989)

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Barth v. Reagan, 190 Ill. App. 3d 516, 546 N.E.2d 87 (2d Dist. 1989) (trial court reduced damages by 30% due to plaintiff’s contributory negligence; appellate court reversed entire judgment due to lack of expert testimony)