SECOND DIVISION

February 13, 2001

No. 1-00-0328

Plaintiffs-appellees Eldon and Jessie Hinshaw, individually,and Eldon Hinshaw and Kathryn Kerber, as co-executors of theestate of Mary Wade, deceased, filed a complaint in the circuitcourt of Cook County alleging negligence, products liability,breach of warranty, and Dramshop Act violations arising from anauto accident in which Eldon and Jessie Hinshaw were seriouslyinjured, and in which Mary Wade, the backseat occupant of theHinshaw van, was killed. Defendants named in the complaintincluded Mitchell Pate, the driver of the vehicle which collidedhead-on with the Hinshaw van; Dramshop Act defendants Tom andBarbara Rora, Gary Jasper, and the Secor Saloon; Daimler-ChryslerCorporation, the manufacturer of the Hinshaw van; CoachmenIndustries, Inc., the customizer of the van; and FlexsteelIndustries and Dygert Seating, which manufactured the van'sseats. Defendants Coachmen Industries, Inc., and CoachmenAutomotive (hereinafter referred to collectively as Coachmen)moved to transfer this action to Woodford County, the site of theaccident, under the doctrine of forum non conveniens. Thecircuit court denied the motion, and Coachmen appealed pursuantto Supreme Court Rule 306(a)(2) (166 Ill. 2d R. 306(a)(2)). Forthe reasons set forth below, we affirm the denial of the motion.

Plaintiffs-appellees alleged in their complaint⁽¹⁾ that onDecember 28, 1996, Eldon Hinshaw, Jessie Hinshaw and Mary Wadewere in a Dodge van which was traveling eastbound on Route 24 inWoodford County, Illinois. At about 4:20 p.m., Mitchell Pate wasdriving westbound on the same road when he attempted to passanother vehicle and struck the Hinshaw van head-on in theeastbound lane. Eldon and Jessie Hinshaw were seriously injuredin the collision, and Mary Wade was killed. According to thecomplaint, Pate was intoxicated at the time of the collision andhad been drinking at the Secor Saloon, an establishment locatedin Secor Illinois, which is in Woodford County. Defendants Tomand Barbara Rora were the owners of the Secor Saloon, anddefendant Gary Jasper owned the building in which the saloon waslocated. It is undisputed that these four Dramshop Actdefendants did not join in Coachmen's motion to transfer venue.

In their answers to defendant Daimler-Chrysler'sinterrogatories, plaintiffs identified seven persons who werepresent at the scene of the accident, at or near the time of thecollision. Four of those seven were directly involved in theaccident: Eldon and Jessie Hinshaw of Bloomington, Illinois, inMcLean County; Mitchell Pate of Sheridan, Illinois, in LaSalleCounty; and Quinn Schad, Pate's passenger, of East Peoria,Illinois, in Tazewell, County. Two of the remaining threeoccurrence witnesses reside in DuPage County, and one lives inCook County. Kathryn Kerber, the remaining plaintiff, resides inMcLean County, and Mary Wade, the deceased, also lived in McLeanCounty. Plaintiffs identified 18 other persons with knowledge ofthe facts of the occurrence. Fifteen of them reside in Illinois:seven in Will County, three in McLean County, two in DuPageCounty, two in Lake County and one in Woodford County. Plaintiffs also identified an auto pound in Cook County where theHinshaw van was stored after the accident.

In its response to plaintiffs' interrogatories, Daimler-Chrysler identified 48 vehicle dealerships in Cook County whichsell Daimler-Chrysler vehicles. According to Daimler-Chrysler,there is one such dealership in Woodford County. Daimler-Chrysler also named two of its employees as persons withknowledge of potentially relevant matters. Both of thempresumably reside in Michigan. Defendant Coachmen identified inits answers to plaintiffs' interrogatories three dealerships inWoodford County which sell Coachmen products: one in Eureka, onein Morton, and a third in Peoria.⁽²⁾ According to a purchase orderattached to Coachmen's answers to interrogatories, the Hinshawvan at issue in this case was purchased in Morton, Illinois. Coachmen also named at least seven dealerships in Cook Countywhich sell its products. In addition, Coachmen listed seven ofits employees, all of whom presumably live in Indiana, as personswith potentially relevant knowledge.

Coachmen also filed a reply in support of its motion totransfer venue. Exhibits attached to this reply included anIllinois Traffic Crash Report indicating that the on-sceneinvestigation of the accident was conducted by Woodford Countypolice, assisted by officers from Eureka and El Paso, both ofwhich are in Woodford County. Also attached to Coachmen's replywere medical-bill summaries for plaintiffs Eldon and JessieHinshaw indicating that their medical care providers were locatedprimarily in McLean and Peoria counties. Thirteen were in McLeanCounty, five in Peoria County, and one each in Woodford andChampaign counties. Also attached was an "Annual Report of theIllinois Courts" for the year 1997, upon which Coachmen reliesfor its assertion that the Cook County court system is morecongested than Woodford County's.

In November 1999, defendant Mitchell Pate was dismissed fromthe complaint pursuant to a good-faith settlement withplaintiffs. In January 2000, plaintiffs moved to voluntarilydismiss their claims against defendant Flexsteel. In the samemonth, a hearing was held on Coachmen's motion to transfer venue,with Daimler-Chrysler orally joining in the motion. The trialcourt denied Coachmen's motion, stating that there were "at leastnine different counties or states that have potential witnessesand have some relations to this case," that the witnesses were"spread all over," and that Coachmen had not met its burden ofshowing that a transfer to Woodford County was strongly favored. The instant appeal followed.

The sole issue in this appeal is whether the trial courtabused its discretion in denying Coachmen's motion to transferthis action to the circuit court of Woodford County pursuant tothe doctrine of intrastate forum non conveniens. Coachmencontends that the balance of public and private factors stronglyfavors that transfer, and the trial court therefore erred indenying Coachmen's motion. Plaintiffs argue that Coachmen failedto meet its burden of showing that the relevant factors stronglyfavor transfer.

"[A] trial court is vested with broad discretion in rulingon a forum non conveniens motion; its decision will be reversedonly if it is shown that the court abused its discretion inweighing the relevant considerations." Griffith v. MitsubishiAircraft International, Inc., 136 Ill. 2d 101, 106, 554 N.E.2d209, 211 (1990).

In resolving a forum non conveniens motion, a court balancesprivate interest factors affecting the litigants and publicinterest factors affecting the administration of the courts. Griffith, 136 Ill. 2d at 105, 554 N.E.2d at 211; Washington v.Illinois Power Co., 144 Ill. 2d 395, 399, 581 N.E.2d 644, 645(1991); Schoon v. Hill, 207 Ill. App. 3d 601, 605, 566 N.E.2d718, 721 (1990). Important private interest considerationsinclude the relative ease of access to sources of proof; theavailability of compulsory process for the attendance ofunwilling, and the cost of obtaining attendance of willing,witnesses; the possibility of a view of the premises if such aview is appropriate to the action; and "'all other practicalproblems that make trial of a case easy, expeditious andinexpensive.'" Washington, 144 Ill. 2d at 399, 581 N.E.2d at645; Smith v. Silver Cross Hospital, 312 Ill. App. 3d 210, 216-17, 726 N.E.2d 697, 702-03 (2000). Public factors to beconsidered include the administrative difficulties which resultwhen litigation is handled in congested venues, the unfairness ofimposing jury duty on a community with no connection to thelitigation, and an interest in having localized controversiesdecided locally. Griffith, 136 Ill. 2d at 106, 554 N.E.2d at211; Schoon, 207 Ill. App. 3d at 605, 566 N.E.2d at 721.

A further consideration under the forum non conveniensdoctrine is deference to plaintiff's choice of forum. Griffith,136 Ill. 2d at 106, 554 N.E.2d at 211. While a plaintiff'schoice is normally given great weight, it is entitled to lessdeference when the plaintiff selects a foreign forum. Schoon, 207Ill. App. 3d at 605, 566 N.E.2d at 721. Nevertheless, in eithercase, a plaintiff's choice of forum should rarely be disturbedunless the relevant factors, viewed in their totality, stronglyfavor transfer. Griffith, 136 Ill. 2d at 106-08, 554 N.E.2d at211-12 (rejecting argument that, where plaintiff is foreign tothe chosen forum, defendant need establish only that factorsfavor, rather than strongly favor, transfer; plaintiff's choiceof forum receives less deference where plaintiff is not residentof the forum, but that does not alter the ultimate test, which iswhether the relevant factors, having been given their appropriateweight or deference, and viewed in their totality, strongly favortransfer); see also Elling v. State Farm Mutual AutomobileInsurance Co., 291 Ill. App. 3d 311, 318, 683 N.E.2d 929, 934(1997) ("[W]hile the deference to be accorded to a plaintiffregarding his choice of forum is less when the plaintiff choosesa forum other than where he resides or where the injury occurred,nonetheless the deference to be accorded is only less, as opposedto none, and the test is still whether the relevant factors[,]viewed in their totality, strongly favor transfer to anotherforum"). Hence, the defendant has the burden of "establishingthat the relevant factors, to which the court applies thebalancing test, viewed in their totality, strongly favor thealternative forum." Smith, 312 Ill. App. 3d at 217, 726 N.E.2d at703.

Coachmen argues that the trial court applied the wrongstandard in denying the motion to transfer. According toCoachmen, the court failed to balance the relevant factors asrequired, and instead held Coachmen to the standard that in orderfor the motion to succeed, all of the public and private interestfactors must strongly favor transfer. Referring to thetranscript of the hearing on its motion, Coachmen pointed to anexchange where plaintiffs' counsel, Thomas Harris, stated what hefelt was the appropriate standard: "Defendant Coachmen has toshow that all of the public and private interest factors[]strongly favor[] the transfer to Woodford County." The courtresponded: "I think that's the standard." Coachmen thus arguesthat the trial court mistakenly assumed that all of the factorsmust strongly favor transfer. By contrast, the correct standard,according to Coachmen, is expressed in this court's statement inEvans v. MD Con, Inc., 275 Ill. App. 3d 292, 298, 655 N.E.2d1016, 1021 (1995), that the defendant need only show that itssuggested county "would be a substantially more appropriateforum, in light of the private and public interest factors."

Coachmen raised this point for the first time at oralargument. Supreme Court Rule 341(e)(7) (179 Ill. 2d R.341(e)(7)) provides that points not asserted in an appellant'sbrief are waived and shall not be raised for the first time inoral argument. See People v. Thomas, 164 Ill. 2d 410, 422, 647N.E.2d 983, 990 (1995).

Even if this argument were not waived, we are not convincedthat the standard as stated in the exchange between Harris andthe trial court, when viewed in its entire context, wasincorrect. In Griffith, our supreme court described thebalancing test used in deciding a forum non conveniens motion as"an uneven one that requires a showing that the relevant factorsstrongly favor transfer before transfer is allowed." 136 Ill. 2dat 107, 554 N.E.2d at 212. Similarly, this court in Evansdescribed the balancing test as "an unequal one, weighted infavor of the plaintiff's chosen forum." Evans, 275 Ill. App. 3dat 295, 655 N.E.2d at 1019. The court in Griffith furtherdescribed the standard as being "whether the relevant factors,viewed in their totality, strongly favor transfer to the forumsuggested by defendant." Griffith, 136 Ill. 2d at 108, 554N.E.2d at 212. There is no reason to think that the trial courtin the instant case disagreed with this standard, particularly inview of what followed in the transcript after the passagementioned by Coachmen. Immediately following the trial court'sassent to Harris's description of the standard, Harris added:"It's not an even balance thing. I don't believe there has beenany attempt to show factors strongly in favor of the transfer." Viewed in this context, the trial court's reference to "all ofthe *** factors" and its assertion that the test is "not an evenbalance" mean essentially the same thing as was stated inGriffith and Evans, namely, that the factors, when viewed intheir totality, must strongly favor transfer. Neither Griffithnor Evans negates that the balancing test is unequal, i.e.,weighted in favor of a plaintiff's choice of forum. Indeed, theassertion in Evans that the defendant's recommended forum must be"substantially more appropriate" (emphasis added) than the chosenforum is merely another way of saying that the balancing test is"unequal" and the factors must strongly favor transfer. There isnothing in the colloquy between the trial court and Harris thatdeparts from this position. In addition, the term "unequalbalance" describes a process of weighing where not all of thefactors are on one side. If they were, there would be no needfor a balancing. Accordingly, we cannot conclude that the trialcourt abused its discretion by applying an incorrect standard.

Before addressing the private interest factors, we notethat, as indicated, plaintiffs' claims against Pate, the driverof the vehicle which collided with the Hinshaw van, weredismissed pursuant to a settlement. As a result, it isundisputed that the case as it stands now is limited to productliability, breach of contract, and Dramshop Act issues.

With respect to the private interest factors, Coachmenargues that they strongly favor Woodford County. In support ofthis contention, Coachmen asserts that plaintiffs reside in"counties contiguous to Woodford County," that the four DramshopAct defendants are in Woodford County, that the accident occurredin Woodford County and was investigated by officers who wereemployed there, that plaintiffs received their medical care fromhospitals and physicians located in or near Woodford County, andthat the Hinshaw van, whose design and manufacture is now theprimary issue in this case, was purchased by plaintiffs inWoodford County.

Taking the last item first, we note that, according to thepurchase order attached to Coachmen's answers to plaintiffs'interrogatories, the Hinshaw van was purchased from a dealershipin Morton, Illinois. As set forth in footnote 2 above, we takejudicial notice that Morton, Illinois, is in Tazewell (notWoodford) County. In addition, while the Secor Saloon is inWoodford County, there is nothing in the record to indicate thateither Tom and Barbara Rora, the owners of the tavern, or GaryJasper, the owner of the building where it is located, resides inWoodford County. Even if they did live in Woodford County, thesedefendants did not join in Coachmen's motion to transfer venue. As to the accident's occurring in Woodford County, the claimsagainst defendant Pate, as noted, have been dismissed, and thecase at this point is focused on product liability, breach ofcontract, and Dramshop Act claims, not on the negligence claimsagainst Pate. Hence any importance of the accident scene to thecase as it now stands is diminished. As to the remaining factorswhich might favor Woodford County, it is questionable whetherthese factors strongly favor Woodford County, given that, as thetrial court observed, potential witnesses and relations to thecase are "spread all over."

The accuracy of the court's observation can be seen bylooking at where the witnesses and relations are located. Plaintiffs, for example, resided in McLean County, which is alsowhere the majority of Eldon and Jessie Hinshaw's medicalproviders were located. In addition, three of 15 Illinoisresidents identified by plaintiffs as having knowledge of thefacts of the occurrence (knowledge witnesses) live in McLeanCounty, while one lives in Woodford County. Seven of these 15knowledge witnesses live in Will County, and two others reside inLake County. The remaining two live in DuPage County, which isalso the residence of two persons who witnessed the accident. Athird person who witnessed the accident resides in Cook County,which is also the location of an auto pound where the Hinshaw vanwas stored after the accident. As noted, the dealership wherethe Hinshaw van was purchased is in Tazewell County, which isalso where Quinn Schad, Pate's passenger, resides. Pate'sresidence is in LaSalle County. Outside Illinois, two Daimler-Chrysler employees with knowledge of potentially relevant mattersreside presumably in Michigan, and seven Coachmen employees withpotentially relevant knowledge presumably live in Elkhart,Indiana.

Given that these potential witnesses and other connectionsare scattered in eight Illinois counties and two additionalstates, it was not unreasonable for the trial court to concludethat there was no predominance among the counties such thatWoodford County was strongly favored. See Meyers v. BridgeportMachines Division of Textron, Inc., 113 Ill. 2d 112, 121, 497N.E.2d 745, 749 (1986) (affirming denial of forum non conveniensmotion, where factual connections with forum were evenlydistributed among four counties, and there was thus nopredominance of connections to any one county). While some ofthe sources of proof, particularly witnesses, are located inWoodford County and counties adjacent to it, the same can be saidfor Cook County. In addition, it is arguably easier forpotential product liability witnesses such as the Daimler-Chrysler employees in Michigan and the Coachmen employees inIndiana to travel to Cook County than it would be for them totravel to Woodford County. Hence, if considerations as to theease of access to sources of proof favor one county over theother, which is doubtful, they would seem to favor Cook County. In addition, there is nothing in the record to indicate thatcompulsory process for the attendance of unwilling witnesses isany more or less available in Woodford County than it is in CookCounty. Nor is there any clear indication that the cost ofobtaining attendance of willing witnesses would necessarilydiffer greatly between Cook and Woodford counties. As to thepossibility of a view of the premises, since the case is nowfocused primarily on product liability claims, the importance ofthis factor appears to be diminished. Thus it was not an abuseof discretion to conclude that the private interest factors donot strongly favor transfer to Woodford County.

One of the public interest factors to be considered is theinterest in having localized controversies decided locally. While the instant case might have been such a localizedcontroversy at one time, now that Pate has been dismissed, it is,as noted, primarily a products liability case. As such, anylocal interest on the part of, say, Woodford County is largelysupplanted by a more general interest in the safety of Dodgevans. Relevant to this concern is the fact that, as noted, thereare 48 dealerships in Cook County which sell Daimler-Chryslervehicles, and at least seven which sell Coachmen products. Woodford County, on the other hand, has just one of each. Giventhat difference, we cannot say that Woodford County would have astronger interest than Cook County in the products liabilityaspects of this case. Another public interest consideration isthat jury duty should not be imposed upon the residents of acommunity with no relation to the litigation. However, as hasbeen shown, Cook County is not such a community. Finally, welook to the status of the court docket where the action wasfiled. It is undisputed that Cook County's court docket isbusier than Woodford County's. However, "[w]ith respect to theforum docket backlog issue, courts are extremely reluctant toremove cases because of crowded dockets." Smith, 312 Ill. App.3d at 218, 726 N.E.2d at 704 (citing Brummet v. Wepfer Marine,Inc., 111 Ill. 2d 495, 503, 490 N.E.2d 694 (1986)); see alsoGriffith, 136 Ill. 2d at 114, 554 N.E.2d at 215 (court congestionfactor alone is not enough to justify transfer of a case whenbalanced against other relevant factors).

Accordingly, it was not an abuse of discretion to concludethat the public interest factors do not strongly favor a transferto Woodford County.

Notwithstanding the foregoing, Coachmen relies uponWashington v. Illinois Power Co., 144 Ill. 2d 395, 581 N.E.2d 644(1991), where the court held that it was an abuse of discretionto deny the defendant's motion to transfer the case from MadisonCounty to Bond County. Washington is distinguishable from theinstant case. In Washington, the plaintiffs, who were residentsof Bond County, sued the defendant power company in the circuitcourt in Madison County for damages resulting from the death oftheir son, who was electrocuted when he touched one of thedefendant's allegedly uninsulated power lines while he wasclimbing a tree in front of his home. The boy's mother witnessedhis death, and as a result she allegedly suffered emotional andpsychological injuries which required hospitalization and medicaltreatment. Though her treating physicians were located closer toMadison County than to Bond County, the court in Washingtonlooked at other factors and held that the trial court abused itsdiscretion in denying the defendant's forum non conveniens motionfor transfer. The plaintiffs, for example, were residents ofBond County. All of the witnesses referred to in the case werefrom Bond County. In addition, all of the sources of proof werelocated in Bond County. By contrast, in the instant case,plaintiffs were residents of McLean County, not Woodford County. Further, unlike in Washington, here only a minority of witnesseswere in Woodford County, with the remainder "spread all over,"including Cook County. We note further that in Washington theremay have been no county other than Bond with a strong interest inthe case, given that the allegedly uninsulated power line atissue was situated in Bond County. Here, by contrast, the safetyof Dodge vans is of interest to Cook County as well as WoodfordCounty. A further distinction between the two cases is that,since in Washington the defendant power company had not beendismissed from the case, the fact that the boy's death occurredin Bond County was potentially important, especially if it weredetermined that a view of the scene would be appropriate. Here,Pate, the driver of the vehicle which struck the Hinshaw van, hasbeen dismissed pursuant to a settlement, rendering less importantthe fact that the accident occurred in Woodford County.

In the instant case, we cannot say that the trial courtabused its discretion in denying Coachmen's motion to transfervenue. The court concluded that Coachmen had not met its burdenof showing that the relevant factors, viewed in their totality,strongly favored a transfer to Woodford County, and we cannot saythat this conclusion was unreasonable. While we might have cometo a different conclusion, we emphasize that our role here "isnot to substitute our judgment for that of the trial court, or todecide whether we would have weighed the factors differently[citation], or even to determine whether the trial court'exercised [its] discretion wisely.'" Griffith, 136 Ill. 2d at115, 554 N.E.2d at 215. "Rather, our task is to determinewhether the trial court abused its discretion" (Griffith, 136Ill. 2d at 115, 554 N.E.2d at 215), and we conclude that it didnot.

Accordingly, we affirm the trial court's denial ofCoachmen's forum non conveniens motion to transfer venue toWoodford County.

Affirmed.

CAHILL, P.J. and COUSINS, J., concur.

1. Counts I-XXII of the complaint were filed in December 1998,and counts XXIII-XXVIII were added in July 1999.

2. We note that according to the Illinois Atlas & Gazetteer 41(DeLorme 3d ed. 2000), only one of these communities, Eureka, isin Woodford County. Morton is in Tazewell County, and Peoria isin Peoria County. Although these factors are not dispositive, weare permitted to take judicial notice of them as revealed in"recent maps." See Sublette Exchange Bank v. Fitzgerald, 168Ill. App. 240 (1912) (taking judicial notice that, "according torecent maps," there was no railroad connection to Plainview,Texas, which was "a long distance from Fort Worth"); see also 18I.L.P. Evidence