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Case Law Update: Dismissal in Wrongful Death Case

Winters v. Wangler, No. 4-07-1044 (11-26-08) found that the trial erred when it dismissed plaintiff’s complaint for wrongful death against operators of farm equipment and escort vehicles alleging that they negligently failed to accurately warn plaintiff’s decedent of oversized farm equipment being driven on highway at night. Although Section 15-102 of Motor Vehicle Code does not apply to husbandry equipment temporarily located on highway, the complaint is sufficient to state a duty based on an “in concert” theory of liability. Further, defendants’ motion is mislabeled as a 2-619 motion because it asserts that plaintiff’s complaint fails to state a cause of action; and does not admit the legal sufficiency of the pleading it attacks. This decision will affect wrongful death cases.