April 2012 Case Notes & Comments

“If you want to stay young-looking, pick your parents very carefully.” ~ Dick Clark

MONTHLY QUIZ - FIRST-PARTY CLAIM FOR STRUCTURAL DAMAGE: Hoarder returns home one winter evening and notices that the heat is off, investigates and finds water in his basement. Hoarder calls Plumber to inspect. Plumber notifies Village, who sends Architect to the home. Architect discovers between 45,000-160,000 pounds of paper and debris stacked six to seven feet high throughout the first floor and deems the home dangerous and uninhabitable. Hoarder is not permitted to stay in the home. Hoarder testifies in an affidavit that up to the time of the collapse, he visited the basement two to three times a month and did not notice “settling, cracking, breaking, bending, bowing, bulging or expanding” of the basement ceiling. Hoarder also claims that the collapsed joists were located under an area where he had placed only an empty lightweight desk and a two feet high stack of papers. Hoarder’s homeowner’s Policy provides coverage for “sudden and accidental … collapse of … any part of a building” caused by certain perils, including “weight of contents.” “Collapse” is defined in the Policy as “an abrupt falling down or caving in of … any part of a building …. [but does not include] settling, cracking, sagging, bowing, bending, leaning, shrinking, bulging or expansion. A building or any part of a building that is in danger of falling down or caving in is not considered to be in a state of collapse.” Policy also excludes coverage for insureds’ “neglect” in failing to save and preserve the insured property. Insurer pays the water claim, but denies Hoarder’s structural damage claim. When Hoarder sues, Insurer files a summary judgment motion arguing that: 1) the loss was not sudden or accidental but rather, the result of the accumulating years of debris; 2) the loss was not a “collapse”; and, 3) the loss was the result of Hoarder’s failure to use reasonable means to preserve the home. Should the Court dismiss the case? You be the judge. (Answer below.)


PREMISES LIABILITY – OPEN & OBVIOUS: Plaintiff Pedestrian was injured when she tripped over the base of a street barricade upon being startled by the sudden noise of jackhammer from a nearby construction site.  Defendant City of Chicago sought summary judgment, arguing that it had no duty of care, because the barricade was an open and obvious condition.  However, Court found that, even though the barrier was open and obvious, City still had a duty to warn, as it was reasonably foreseeable that a pedestrian could be distracted by construction activity and ignore the danger created by the barriers. EDITORIAL COMMENT: Perhaps the City of Chicago should have provided a barricade to warn about the barricade? Waters v. The City of Chicago, 2012 IL App (1st) 100759 (March 2, 2012)


PRODUCT LIABILITY – FORESEEABLE MODIFICATIONS: Summary judgment reversed. While painting from a scissor lift, Plaintiff fell and sustained injuries.  The guard gate, designed to allow access to the lift but prevent the user from falling from the lift, had been removed prior to Plaintiff's use.  Plaintiff brought suit against lift manufacturer, seeking recovery on strict liability and negligence theories. Plaintiff pled that the lift was unreasonably dangerous when it left Manufacturer's control. Manufacturer moved for summary judgment, contending that the removal of the guard gate necessitating removal of a nut and bolt with a screwdriver and wrench, was not a foreseeable modification. Trial Court granted Manufacturer summary judgment.  In reversing the Trial Court, Appellate Court held that while the use of tools might be a factor in determining whether a modification is accomplished easily and is therefore foreseeable, it is not the determining factor. Rather, where there is no evidence that special expertise is needed to make the modification, or that the modification is complex or time-consuming, the foreseeability of the modification is a genuine issue of material fact best presented to a jury. Perez v. Sunbelt Rentals, 2012 IL App (2nd) 110382.


PREMISES LIABILITY – EVIDENCE: Plaintiff tripped and fell while waiting for an elevator in the lobby of Hospital. Plaintiff brought suit, alleging that a fold or buckle in a floor mat caused him to trip, and that Hospital was negligent in using and failing to secure the mat. When asked at deposition whether he was certain that the fold caused him to fall, Plaintiff responded, “That’s what my lawyer says.” But Plaintiff also testified that, while he did not see a fold in the mat, he did feel a fold beneath the sole of his left shoe. The trial court granted summary judgment for Hospital, finding that Plaintiff did not allege facts supporting a finding that Hospital breached any duty.  However, the appellate court reversed, ruling that Plaintiff’s testimony about feeling the fold, combined with expert opinions regarding mat placement, were sufficient to create a triable issue as to whether Hospital negligently placed the mat and caused Plaintiff to fall.  Caburnay v. Norwegian American Hospital, 2011 IL App (1st) 101740.


ANSWER TO QUIZ: Hoarder wins. While the Trial Court found Hoarder’s testimony not credible and contradicted by photos, a majority in the Appellate Court still found that an arguable question of fact existed as to the cause of the loss. DISSENT: At least one judge found that Insurer was entitled to dismissal since the loss was not fortuitous, but rather the result of debris accumulated over the last approximate five year period; and furthermore, the loss was subject to the “neglect” exclusion. Gulino v. Economy Fire & Cas. Co.et al.,  2012 IL App (1st) 102429 (Mar. 30, 2012)