{ "id": 8498575, "name": "DANNY SHEPPARD, Plaintiff-Appellant, v. FREDERIC B. KROL, Defendant-Appellee", "name_abbreviation": "Sheppard v. Krol", "decision_date": "1991-08-02", "docket_number": "No. 1-89-0397", "first_page": "254", "last_page": "260", "citations": [ { "type": "official", "cite": "218 Ill. App. 3d 254" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "304 N.E.2d 677", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "15 Ill. App. 3d 455", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2461137 ], "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0455-01" ] }, { "cite": "82 Ill. App. 469", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5254158 ], "year": 1973, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/ill-app/82/0469-01" ] }, { "cite": "473 N.E.2d 444", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "129 Ill. App. 3d 1050", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3489769 ], "weight": 3, "pin_cites": [ { "page": "1059-60" }, { "page": "1060" }, { "page": "1059-60" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/1050-01" ] }, { "cite": "406 N.E.2d 70", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. App. 3d 647", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3207556 ], "pin_cites": [ { "page": "652" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/0647-01" ] }, { "cite": "522 N.E.2d 347", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "354" } ], "opinion_index": 0 }, { "cite": "167 Ill. App. 3d 952", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472660 ], "weight": 2, "pin_cites": [ { "page": "964-65" }, { "page": "964-65" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/0952-01" ] }, { "cite": "507 N.E.2d 1213", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "155 Ill. App. 3d 140", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3464238 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/155/0140-01" ] }, { "cite": "466 N.E.2d 593", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 839", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3631632 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0839-01" ] }, { "cite": "234 N.E.2d 49", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill. App. 2d 386", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2818675 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/91/0386-01" ] }, { "cite": "210 N.E.2d 182", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "188" } ], "opinion_index": 0 }, { "cite": "32 Ill. 2d 612", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2839667 ], "pin_cites": [ { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0612-01" ] }, { "cite": "440 N.E.2d 448", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 311", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5448324 ], "weight": 2, "pin_cites": [ { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0311-01" ] }, { "cite": "440 N.E.2d 96", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "92 Ill. 2d 13", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3096980 ], "opinion_index": 0, "case_paths": [ "/ill-2d/92/0013-01" ] }, { "cite": "502 N.E.2d 1186", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 116", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3541125 ], "weight": 2, "pin_cites": [ { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0116-01" ] } ], "analysis": { "cardinality": 619, "char_count": 15285, "ocr_confidence": 0.749, "pagerank": { "raw": 2.0305410674118551e-07, "percentile": 0.7465244112687651 }, "sha256": "bb61303250f140689a9250301ad5396c2d0d1428395d6f6817b65d1dc74e4cc1", "simhash": "1:3bcf69f0916e8c7b", "word_count": 2417 }, "last_updated": "2023-07-14T18:01:44.666066+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RAKOWSKI, P.J., and McNAMARA, J., concur." ], "parties": [ "DANNY SHEPPARD, Plaintiff-Appellant, v. FREDERIC B. KROL, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE LaPORTA\ndelivered the opinion of the court:\nPlaintiff brought suit against defendant alleging legal malpractice due to negligent representation. On defendant\u2019s motion, the trial court dismissed his first amended complaint with prejudice for failure to state a cause of action. Plaintiff appealed.\nIn his first amended complaint, plaintiff alleged that in the course of his employment with Jay\u2019s Foods, Inc., he was required to operate a certain forklift truck. He alleged that on September 6, 1983, while he was standing in close proximity to it, the unattended forklift -with motor running suddenly changed gears from neutral to reverse and struck him, causing his injuries. Plaintiff alleged that the forklift was defective and unreasonably dangerous as a result of a design or mechanical defect present when purchased by Jay\u2019s Foods and was defective and unreasonably dangerous immediately prior to striking him \u201cin that the transmission would shift from neutral to reverse when the motor of said forklift was running and the forklift was left unattended.\u201d He alleged he suffered severe and permanent injuries as a result of the accident and therefore contracted with defendant to act on his behalf for both a worker\u2019s compensation claim and a product liability claim. Defendant\u2019s conduct with regard to the worker\u2019s compensation claim is not at issue in this case.\nPlaintiff\u2019s complaint alleged further that defendant undertook to represent him as his attorney in the personal injury suit and agreed \u201cto investigate and process a product liability claim against the manufacturer or seller of the forklift\u201d and therefore it was his duty to exercise ordinary care and caution in the legal representation of plaintiff. Plaintiff alleged that defendant breached his duty to plaintiff by carelessly and negligently: (a) failing to ascertain the identity of the forklift truck; (b) failing to retain a mechanical engineer or other expert to inspect the forklift; (c) failing to institute legal proceedings against the manufacturer or seller of the forklift; (d) failing to impound the forklift; (e) failing to properly investigate the circumstances of plaintiff\u2019s injuries to determine the manufacturer of the forklift; and (f) failing to identify, preserve and inspect the forklift.\nPlaintiff alleged that as a direct and proximate result of defendant\u2019s action the forklift \u201cwas destroyed, sold or otherwise disposed of by Jay\u2019s Foods, Inc.,\u201d and it became \u201cimpossible to ascertain the make, manufacturer, seller or mechanical condition of the forklift that was involved in plaintiff\u2019s injury.\u201d Plaintiff alleged that but for defendant\u2019s negligence, plaintiff would have had legal grounds for a cause of action against the manufacturer or seller of the forklift.\nDefendant moved to dismiss the first amended complaint at law on July 9, 1987, contending that plaintiff could not succeed in the malpractice action because he did not plead and could not prove he would have prevailed in a product liability action \u201cbut for\u201d the negligence of his attorney. On October 5, 1987, the trial judge granted defendant\u2019s motion and dismissed the suit with prejudice. The court subsequently denied plaintiff\u2019s motion to reconsider and plaintiff appealed.\nOn appeal plaintiff presents the following issues: (1) did plaintiff state a cause of action for legal malpractice where plaintiff charged defendant with negligently failing to ascertain the identity of the manufacturer of a defective product, which caused plaintiff\u2019s injury, before the product was disposed of by its owner; (2) did plaintiff plead an underlying cause of action; and (3) is plaintiff required to plead the identity of defendant in the underlying cause of action and the specific defect in the forklift on which that action is based?\nIn any legal malpractice action, a plaintiff must plead the existence of a valid underlying cause of action. (Claire Associates v. Pontikes (1986), 151 Ill. App. 3d 116, 502 N.E.2d 1186.) Four elements must be alleged and proven: (1) the existence of an attorney-client relationship that establishes a duty on the part of the attorney; (2) a negligent act or omission that breached that duty; (3) proximate cause that establishes that but for the attorney\u2019s negligence, plaintiff would not have suffered an injury; and (4) damages. Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96.\nBecause a plaintiff must establish that but for the attorney\u2019s negligence he would have been successful in the underlying action, plaintiff is essentially required to prove a case within a case, specifically, establishing a prima facie product liability case and then proving it in order to prove the legal malpractice case. (Cook v. Gould (1982), 109 Ill. App. 3d 311, 314, 440 N.E.2d 448.) This is required because of the damages element of the action; no malpractice exists unless counsel\u2019s negligence has resulted in the loss of an underlying action. Claire Associates, 151 Ill. App. 3d at 122.\nTherefore, we must consider whether plaintiff\u2019s legal malpractice complaint alleged the facts to establish he not only had a valid product liability cause of action, but that he would have been successful in that cause. To establish a prima facie case for strict liability in a product liability action, a plaintiff must show that: (1) his injuries or damages resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time it left the manufacturer\u2019s control. Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 623, 210 N.E.2d 182, 188.\nPlaintiff contends that his legal malpractice action properly stated a cause of action for product liability. Plaintiff argues that his legal malpractice complaint alleged he was injured by a forklift and that the forklift was defective and unreasonably dangerous as a result of a mechanical defect. The three other requisite factors alleged in plaintiff\u2019s first amended complaint include plaintiff contracting with defendant to represent him, defendant\u2019s failure to identify the manufacturer of the forklift and concludes that \u201cbut for\u201d defendant\u2019s action, plaintiff would have \u201cobtained compensation from the manufacturer or seller.\u201d On a motion to dismiss, the trial court must accept as true all well-pleaded facts. Bishop v. Ellsworth (1968), 91 Ill. App. 2d 386, 234 N.E.2d 49.\nPlaintiff contends that these facts alone are enough to permit his legal malpractice action to go to trial. Plaintiff argues that he should not be required to identify the manufacturer of the forklift in his complaint because it was defendant\u2019s negligence that prevented the manufacturer from being discovered. Plaintiff argues that to dismiss his complaint at the pleading stage would prevent him from conducting the proper discovery to see if the manufacturer could be established. The mere fact that the forklift has been or may have been destroyed is not a bar to a negligence action. Mote v. Montgomery Ward & Co. (1984), 125 Ill. App. 3d 839, 466 N.E.2d 593; Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140, 507 N.E.2d 1213.\nDefendant concedes that plaintiffs complaint establishes that an attorney-client relationship existed and that defendant breached his duty to his client. But defendant contends plaintiffs complaint does not allege proximate cause, i.e., \u201cbut for\u201d the negligence of the attorney plaintiff would have been successful in the underlying cause of action.\nDefendant contends that plaintiff failed to meet the proximate cause requirement in three specific ways and that failure prevents plaintiff from succeeding in his legal malpractice case. First, plaintiff has alleged no facts to establish defendant could have identified the forklift involved in his accident. Second, plaintiff failed to plead facts that establish that \u201cbut for\u201d the attorney\u2019s conduct, he would have been successful in his product liability action. Third, plaintiff failed to allege facts to establish that a judgment against a manufacturer would have been collectible.\nInitially, defendant contends that plaintiff alleges no facts that establish defendant could have identified the forklift which caused the injury even given the opportunity. The record establishes that before the dismissal of plaintiff\u2019s action, plaintiff responded to interrogatories that he did not know the manufacturer of the forklift. He admits the same in his brief. Defendant poses the question, how was defendant to identify the forklift involved without plaintiff\u2019s assistance? Plaintiff alleged that in his employment he was required to operate this forklift truck, that the truck was defective because of its design and that he was injured by the unattended truck. Because he operated the forklift in his employment, he was in the best position to identify the manufacturer and to give that information to his attorney. The complaint does not allege that this was done.\nNext, defendant contends that even if we assume the attorney was negligent, plaintiff must still prove that defendant\u2019s negligence was the proximate cause of his loss, i.e., had the attorney identified the forklift involved, the plaintiff would have prevailed in the product liability action. Cook v. Gould (1982), 109 Ill. App. 3d 311, 440 N.E.2d 448.\nPlaintiff\u2019s brief admits that plaintiff cannot now identify the manufacturer of the forklift. Defendant cites Dunavan v. Calandrino (1988), 167 Ill. App. 3d 952, 964-65, 522 N.E.2d 347, 354, which held that \u201c[wjhere a legal malpractice case involves an underlying cause of action that never reached the trial stage because of alleged negligence on the part of plaintiff\u2019s attorney, plaintiff must allege that he had a valid cause of action and must ultimately prove up his case at trial.\u201d (Dunavan v. Calandrino, 167 Ill. App. 3d at 964-65.) Damages in a legal malpractice action will not be presumed, and the plaintiff bears the burden of proving that damages resulted. Zych v. Jones (1980), 84 Ill. App. 3d 647, 652, 406 N.E.2d 70.\nDefendant contends that plaintiff\u2019s malpractice complaint is devoid of specific details necessary to plead a product liability case. Defendant cites Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 1059-60, 473 N.E.2d 444, where the court held that it \u201ccannot legally be presumed from evidence of the mere occurrence of an accident involving a product that the product was defective when it left the manufacturer\u2019s control.\u201d (Ralston v. Casanova, 129 Ill. App. 3d at 1060.) \u201cWhile it may indeed be possible to introduce sufficient evidence to establish a prima facie case of strict liability even in the absence of the allegedly defective product itself *** plaintiff must present some evidence to raise a material issue as to the absence of abnormal use and the elimination of reasonable secondary causes to prove what condition the product was in when it left [the manufacturer\u2019s] control.\u201d (Emphasis in original.) Ralston, 129 Ill. App. 3d at 1059-60.\nWe note that the complaint does not allege how close defendant was to the forklift when he was injured, whether he or someone else was using the forklift immediately before the accident, the type or style of forklift, the forklift manufacturer or any alleged failures on the manufacturer\u2019s part nor does he allege any prior difficulties with its operation. The record contains plaintiff\u2019s answers to defendant\u2019s interrogatories where plaintiff responds to questions about the identity of the forklift manufacturer, alterations or maintenance of the machine by anyone, and other injuries caused by the machine as \u201cunknown at this time.\u201d Though the accident occurred on September 6, 1983, plaintiff terminated defendant\u2019s representation on June 5, 1985, and plaintiff\u2019s malpractice action was filed on October 30, 1985, plaintiff conducted no discovery before the case was dismissed in 1989 that might have resulted in identifying the forklift manufacturer or providing more detail about the accident.\nFinally, defendant contends that plaintiff has alleged no facts to establish that a judgment against a manufacturer would have been collectible. When a claim is alleged to have been lost by the attorney\u2019s negligence, the plaintiff must plead and prove the existence of a solvent defendant in the underlying claim. Goldzier v. Poole (1898), 82 Ill. App. 469, 471; see also Kohler v. Woollen, Brown & Hawkins (1973), 15 Ill. App. 3d 455, 458, 304 N.E.2d 677.\nDefendant contends that, without the element of collectibility, the plaintiff has not shown that he would have recovered for his injuries \u201cbut for\u201d the attorney\u2019s actions. We note that the plaintiff argued before the trial court:\n\u201cWe have alleged that an attorney had a chance to \u2014 first of all, understood the duty to investigate the case, had a chance to inspect the forklift and did not do that. And as a result, the forklift was destroyed. *** We say that the forklift was defective and unreasonably dangerous. We say that we cannot ascertain the manufacturer or the mechanical condition. *** We don\u2019t say we would have recovered from whom. We don\u2019t know from whom we would have recovered because we don\u2019t know who manufactured the forklift as a result of his inability to determine that.\u201d\nPlaintiff also argues here on appeal that he should be able to bring his legal malpractice action although he cannot identify against whom he would have filed suit in the underlying products liability action. Plaintiff argues that it is enough to plead that he was injured by a defective product and that someone is liable. Even though we may sympathize with the injured plaintiff, where his complaint fails to allege the necessary elements of a legal malpractice claim, he may not recover from his attorney the amount he would have hoped to realize in the underlying suit.\nIllinois law is clear that, in a malpractice action, the plaintiff essentially must prove his case within the case. Plaintiff acknowledges this requirement on appeal. Plaintiff must show that but for his lawyer\u2019s negligence he would have recovered. Plaintiff is unable to meet this burden of proof and readily admitted so before the trial court and again in his brief before this court. Plaintiff states in his brief: \u201cThe only element of a products liability case the plaintiff was unable to allege was the identity of the manufacturer *** the plaintiff here should *** be allowed to seek compensation for the loss of any chance he had to recover against the manufacturer, even though he may not be able to establish that he had a better than even possibility of recovery.\u201d As defendant properly avers in his brief, our legal system does not permit liability based on conjecture.\nFor the foregoing reasons, we affirm the trial court\u2019s granting of defendant\u2019s motion to dismiss plaintiff\u2019s action with prejudice.\nAffirmed.\nRAKOWSKI, P.J., and McNAMARA, J., concur.", "type": "majority", "author": "JUSTICE LaPORTA" } ], "attorneys": [ "Lane & Munday and Frank Leonard LaPort & Associates, Ltd., both of Chicago, for appellant.", "Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Thomas L. Browne, and Mark M. Christerson, of counsel), for appellee." ], "corrections": "", "head_matter": "DANNY SHEPPARD, Plaintiff-Appellant, v. FREDERIC B. KROL, Defendant-Appellee.\nFirst District (6th Division)\nNo. 1-89-0397\nOpinion filed August 2, 1991.\nLane & Munday and Frank Leonard LaPort & Associates, Ltd., both of Chicago, for appellant.\nHinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Thomas L. Browne, and Mark M. Christerson, of counsel), for appellee." }, "file_name": "0254-01", "first_page_order": 276, "last_page_order": 282 }