BE WARY OF THE VOLUNTARY - Mark P. Loftus

The Illinois Supreme Court recently came down with a decision that should make make Illinois trial attorneys think twice about taking voluntary dismissals of their cases. The Hudson v. City of Chicago case involved allegations that the City failed to properly respond to a life-threatening situation. In November of 1998, George Hudson Jr., just three years old, was having trouble breathing. His mother called 911 and advised the operator about George’s breathing difficulties. Nonetheless, the City responded with a fire engine that didn’t have the proper advanced life support equipment. The proper equipment didn’t arrive for another 15 minutes. Unfortunately, the child died. In March of 1999, George Hudson Sr. filed suit on behalf of his son against the City of Chicago, the former City Fire Commissioner and several fire department personnel. Count I of the complaint alleged the City was negligent in responding to the call. Count II alleged the City’s response amounted to wilful negligence. The City moved to dismiss Count I of the Complaint, arguing that it had immunity to negligence claims under the Emergency Medical Services Act, 210 ILCS 50/3.150. In October of 1999, the trial court granted that motion. On July 25, 2002, plaintiffs elected to voluntarily dismiss Count II of the complaint, pursuant to 5/2-1009 of the Illinois Code of Civil Procedure. Under most circumstances[but not always!!!], a party that voluntarily dismisses all or part of a claim may refile within one year. On July 23, 2003, plaintiffs refiled a single count complaint against the City of Chicago, again alleging wilful and wanton negligence. The City again moved to dismiss, arguing that the refiled action was barred by the doctrine of res judicata. Res judicata is a legal concept that essentially says you can’t have two bites of the apple – if a court has ruled on a specific question for a specific party, that party can’t refile that action. In order for res judicata to apply, one needs to show: 1) a final judgment on the merits; 2) an identity of cause of action exists[the subsequent claim is the same as the first]; and 3) the parties are identical in both actions. The Circuit Court granted defendant’s motion. Plaintiff appealed and the Appellate Court affirmed the lower court decision. The plaintiff then took an appeal to the Illinois Supreme Court. Plaintiff’s argument was seemingly sound – he could’t be barred by res judicata because there had never been an adjudication on the merits as to Count II – plaintiff had voluntarily dismissed it. The Supreme Court however, disagreed. Citing Rein v. David A. Noyes & Co. (Ill. 1996), 172, Ill.2ds 325, 216 Ill.Dec. 642, 665 N.E.2d 1199, the Court determined that res judicat did indeed apply. The Supreme Court ruled that if the elements necessary to res judicata are present, res judicata will bar not only every matter that was actually determined in the first case, but also every matter that MIGHT HAVE BEEN RAISED. In determining if a matter could have been raised in the first action, the Court again looked to the Rein decision. The Supreme Court adopted Rein’s holding that if a cause of action arises out of the same set of operative facts as the earlier case, it then could have been litigated in the earlier case, and, as a result, res judicata would apply. In effect, pursuant to Rein, a plaintiff who splits his claim by taking a voluntary dismissal, and then refiling part of an action after a final judgment has been entered on another part of the case subjects himself to a res judicata defense. The Court then ruled that since the wilful and wanton count did arise out of the same set of operative facts as the negligence claim, the plaintiff could have litigated the wilful and wanton claim in the first case. The court ruled that res judicata did indeed bar the second claim, even though there was no adjudication on the merits.