Gerard Fosco and Jeff Pavlovich successfully defended a property preservation corporation hired by Chase Home Finance, and two independent property preservation contractors, in an action brought by a Chase mortgagor alleging intentional and negligent trespass, assault and negligence. The plaintiff/mortgagor contended she experienced extreme, debilitating emotional distress resulting in years of mental health treatment, and demanded a mid-seven-figure settlement. After obtaining a successful result before the Illinois Supreme Court on plaintiff’s prior interlocutory appeal as to plaintiff’s negligent and intentional infliction of emotional distress actions (Schweihs v. Chase Home Fin., LLC, 2016 IL 120041), the lawsuit was remanded to the trial court for proceedings on plaintiff’s intentional and negligent trespass actions, which had been held in abeyance. After remand, plaintiff added actions alleging assault and negligence. Following extensive discovery, plaintiff voluntarily dismissed her negligence action, and plaintiff’s assault action was dismissed on res judicata grounds. The parties appeared for trial of plaintiff’s trespass actions. Prior to jury selection, the trial judge denied plaintiff’s motion to request punitive damages and granted defendants’ motion in limine to bar admissibility of defendants’ internal procedures as evidence of trespass because the source of defendants’ right to enter plaintiff’s property was the mortgage contract plaintiff signed, and defendants’ internal procedures were not part of that contract. Based on the pre-trial rulings and related proceedings, the trial judge dismissed plaintiff’s intentional and negligent trespass actions, and plaintiff appealed the trial judge’s rulings and prior dismissal of plaintiff’s assault action. The appellate court affirmed the trial judge’s rulings regarding punitive damages and inadmissibility of defendants’ internal procedures. Although the appellate court disagreed with dismissal of plaintiff’s assault action on res judicata grounds, the court held that motions for summary judgment as to plaintiff’s assault action that were denied by the trial court should have been granted. The summary judgment motions asserted the absence of evidence of an essential element of an assault action, i.e., intent on the part of defendants to cause plaintiff to apprehend an immediate battery. Accordingly, the appellate court disposed of all remaining actions against the defendants. Schweihs v. Chase Home Fin., LLC, 2021 IL App (1st) 191779 (Jun. 29, 2021).
Thomas A. Gamache, Adam L. Fraenkel, and Daniel J. Offenbach were successful before the United States Court of Appeals for the Third Circuit in defending an appeal of a denial of class certification. Plaintiffs suffered property damage following a fire caused by a nearby lightning strike. Plaintiffs alleged the fire was caused by defective gas piping installed in the property, claiming that it caused the structure to be electrically energized such that the energy created a hole in the piping, resulting in fire. Plaintiffs sought nationwide and state-specific class certification on behalf of property owners in which the gas piping was installed; LEF, representing the manufacturer of gas piping, opposed class certification. The District Court for the Western District of Pennsylvania denied Plaintiffs’ motion for class certification, ruling that Plaintiffs had failed to meet the standards for class certification under Federal Rule of Civil Procedure 23. The Third Circuit granted Plaintiffs’ Rule 23(f) petition for permissive appeal, but, following hearing, affirmed the District Court, agreeing that Plaintiffs had failed to satisfy necessary elements of Rule 23, thereby precluding class certification.
Jon Schaefer and Jeff Pavlovich successfully argued before the Illinois Third Appellate District in the defense of a restaurant owner sued for property damage to the neighbor plaintiff’s building caused by a patron’s negligent driving. After exiting the restaurant, the patron drove his pick-up over a parking spot concrete bumper, and into the plaintiff’s wall. The plaintiff claimed that LEF’s client failed to erect barriers and arrange the parking spaces on his lot to prevent “unauthorized encroachments of vehicles invited to his restaurant” onto the plaintiff’s land. The trial court granted LEF’s motion to dismiss on the ground that the restaurateur owed no duty to the neighbor for the patron’s negligent driving. The Third District agreed, noting that the parking lot posed no danger absent the independent, negligent act of the patron, and the ensuing damage to the building was not reasonably foreseeable. The Court further noted that the magnitude of the burden required to guard against the occurrence would be intolerable. Since the complaint failed to plead a legally cognizable duty owed by the restaurant owner to the plaintiff, the Third District upheld the trial court’s dismissal of the complaint with prejudice. Guyon v Hernandez, 2021 IL App (3rd) 200141-U (Rule 23 order).
Matthew J. Kowals recently secured a summary judgment in Kosciusko County, Indiana on behalf of a restaurant and bar. The plaintiff claimed that she fell down a step leading to the bar seating area of the restaurant. She filed suit alleging that the step constituted a dangerous condition and that the bar/restaurant had failed to warn her of the condition and safeguard against it. The plaintiff alleged that her fall caused fractures to her left ankle and right shoulder, in addition to a right shoulder rotator cuff tear, and necessitated open reduction/internal fixation surgery to the right shoulder as well as right rotator cuff repair. LEF convinced the judge that the step constituted a known and obvious condition and that the bar/restaurant had not breached any duty to the plaintiff. The order granting summary judgment was entered May 27, 2021. Case No. 43D04-1910-CT-000071 (Kosciusko County, Indiana).
Congratulations to Thomas J. Finn of Leahy, Eisenberg & Fraenkel, who recently won a live 4-day jury trial in favor of his client, a fire sprinkler inspection company. The case involved claimed damages of more than a million dollars, allegedly caused when a sprinkler pipe in the attic of a commercial building froze and burst, allowing water to flow into the building. Tom successfully convinced the jury that his client's actions were not the cause of the burst pipe and further, that his client had no liability, resulting in an award of zero damages to the plaintiff. Plaintiff did not file any post-trial motions and did not contest defendant's petition for fees and costs.