August 2022 Case Notes & Comments

“The highest distinction is service to others..” ~ King George

MONTHLY QUIZ: Motorcyclist-Plaintiff is riding her motorcycle along Village roadway when her tires come in contact with a section of loose gravel. As a result of the loose gravel and the sudden change in level of the adjoining roadway, Plaintiff loses control and is thrown from her bike. Prior to the accident, Village removed a 4'x42' section of pavement, leaving gravel in its place. Village Public Works Director admits that Village removed the pavement and that he consciously decided to leave the roadway open during the summer until repairs could be performed. Director testifies that his decision was based on economic and safety reasons as it "was more cost-effective to have multiple areas paved at the same time and the area at issue was safer after it was prepared for eventual patching than it would have been if left in the original state of disrepair." Plaintiff sues Village for negligent removal of pavement and road construction. Village moves for summary judgment arguing, among other things, that Village's decision to perform roadway repairs involved discretionary work under which Village was immune pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-109, 2-201 ("Act"). The Act provides immunity to public entities and employees if “(1) the employee held either a position involving the determination of policy or a position involving the exercise of discretion; and (2) the employee engaged in both the determination of policy and the exercise of discretion when performing the act or omission from which the plaintiff's injury resulted.” Negligent performance of ministerial tasks, however, are not protected by immunity under the Act. Ministerial acts are performed in a prescribed manner, in obedience to the mandate of legal authority, and without regard to an official’s exercise of discretion as to the propriety of the acts being done. Were the Village's acts discretionary or ministerial? Does the Act apply to the Village Director's decision to keep the roadway unpaved until repairs could be made? You be the Judge. (Answer below).

BALANCING BENEFITS OF A JURY TRIAL AND SPEEDY ADJUDICATION, APPELLATE COURT FINDS GOOD CAUSE TO ALLOW PLAINTIFF’S LATE JURY DEMAND: Plaintiff filed small claims case for property damage, but did not demand a jury trial at the time of filing. Defendant filed a jury demand with its appearance. Nine months later - one week before jury trial was set to begin - defendant waived its jury demand. Plaintiff immediately filed a jury demand, but the trial court denied the request as waived, because the jury demand was not filed at the time of the complaint. On appeal, the First District noted both the general rule that a jury demand should be filed by the plaintiff with the complaint (or by the defendant by the deadline to appear), and the exception allowing additional time, at the discretion of the court, utilizing a two-prong test: plaintiff must establish good cause to extend the time period, and the court should consider inconvenience to the parties and possible prejudice to the defendant. Here, the Court found no inconvenience or prejudice in allowing the late jury demand, as the case had already been docketed for a jury trial and both parties were anticipating one. Additionally, the Court found Plaintiff had shown good cause for the delay. Plaintiff had originally opted against requesting a jury trial, in favor of the benefit of a speedy adjudication of her claim. However, because Defendant’s jury demand deprived her of that benefit (as, because of the jury demand, the parties were required to submit to arbitration before trial), the Court held that it would be unfair for plaintiff to be deprived of both a jury trial and a speedy adjudication. Durowade v. Lenny’s Gas N-Wash Sauk Trail, LLC, 2022 IL App (1st) 210770-U (May 24, 2022).

CONTRACTOR CAN BE HELD LIABLE TO THIRD PARTIES FOR WORK THAT HAS ALREADY BEEN ACCEPTED AND APPROVED BY POSSESSOR OF LAND: Restaurant hired Contractor to install a doorstop near the front entrance. Contractor installed a doorstop that protruded approximately three inches off the ground. Several months later, Plaintiff-Customer tripped and fell on Restaurant's doorstop upon entering and then sued Restaurant and Contractor in tort. Customer's retained expert opined that the doorstop: 1) was a tripping hazard in a foreseeable pedestrian walkway; 2) violated nationally recognized and applicable standards of care for safe walkways; and, 3) was the cause of Customer’s fall and injuries. Contractor filed a motion for summary judgment, arguing that it owed no duty to Customer because compliance with applicable property maintenance code was the responsibility of the property owner (i.e. Restaurant). Upon reconsideration, the trial court agreed with Contractor, who argued that under the Illinois Supreme Court ruling in Hunt v. Blasius, 74 Ill.2d 203 (1978), the Completed & Accepted Work Doctrine applied and granted Contractor summary judgment. The Completed & Accepted Work Doctrine generally provides that a constructor is not liable to a third party as a result of a completed condition of the work after acceptance by the property owner, even though the injury or damage was due to the constructor’s negligence or contractual breach in performing the work. Contractor argued that given its completion of the doorstop installation and Restaurant's acceptance of the work, it owed no duty to third parties injured as a result of that work. Customer appealed the application of the Completed & Accepted Work Doctrine as a valid defense. In reversing the grant of summary judgment, the First District Appellate Court held that under Illinois law, the Completed & Accepted Work Doctrine is no longer determinative on the question of liability. Instead, to determine a contractor's liability to third-parties, courts must look to traditional negligence principles. Under the circumstances, the Appellate Court found that Contractor stood in such a relationship to Customer, that Contractor had a duty to act with reasonable conduct. The court found it significant that, unlike the defendant in Hunt, Contractor received no instructions from Restaurant as to the location or type of doorstop, as such decisions were left to Contractor. In Hunt, the contractor received very specific plans and specifications to follow. Since Contractor owed Customer a duty of care, the grant of summary judgment was improper and reversed. Jarosz v. Buona Cos.,LLC, 2022 IL App(1st) 210181 (Feb. 17, 2022).

WORKERS’ COMPENSATION: Appellant-Employee-Petitioner, a firefighter, alleged that his knee “gave out” while walking in a hallway at a Grayslake Fire Protection District (Appellee-Employer-Respondent) premises, which resulted in medial and lateral meniscal tears. Petitioner provided conflicting accident histories to Respondent, his treating physicians and Respondent’s IME physician, as to which point during the day he injured his knee. The Arbitrator found that Petitioner aggravated his knee while responding to a vehicle accident, which culminated in his knee finally “giving out” while walking in a hallway towards the end of the day. Of note, Petitioner’s supervisor investigated the area where Petitioner’s knee gave out causing him to fall down and testified that there were no deformities on the ground which could have caused him to fall. Nonetheless, the Arbitrator found that Petitioner sustained a compensable accident and that his injury was causally related to the accident. The Arbitrator awarded TTD benefits, medical benefits, and a total knee replacement. The Commission reversed the Arbitrator’s decision, emphasizing that Petitioner provided no fewer than three different accident accounts and applied a neutral risk analysis. The circuit court affirmed the Commission decision. Finally, the Appellate Court affirmed the circuit court’s decision. The Appellate Court held that Petitioner failed to prove a compensable work-related accident. They reasoned that the Commission correctly found that Petitioner was not credible because of the inconsistent accident descriptions. The Court rejected Petitioner’s argument that the Commission incorrectly applied neural risk analysis instead of personal risk analysis. The Court reasoned that neutral risk analysis applied because the Commission had already made a factual determination that the injury occurred while walking down a hallway, and not while responding to a vehicle accident earlier in the day. Therefore, they reasoned that by itself, the walking across a floor at the employer’s place of business does not establish a risk greater than faced by the general public. The Court concluded that the Commission’s findings were not against the manifest weight of the evidence and that a conclusion opposite to that reached by the Commission was not clearly apparent. Rodney Buckley v. Illinois Workers’ Compensation Commission, 2022 IL App (2d) 210055WC-U.

ANSWER TO QUIZ: Defendant is immune from liability pursuant to sections 2-109 and 2-201 of the Act. Here, Village Director made a conscious decision for the area of the roadway, which had been excavated and filled with gravel, to remain unpaved and open to traffic and that decision was an exercise of discretion. Additionally, Director’s contemplation of, and determination regarding, Village’s funds and resources demonstrates that Village was engaged in a policy determination. Here, the Court reasoned that Director was engaged in the decision as to how best to spend Village's limited resources, which was a policy. The rationale for discretionary immunity for public officials stems from the idea that public officials should be allowed to exercise their judgment in making decisions without fear that a good-faith mistake might subject them to liability. Connie Page v. Village of Coal City, 2022 IL App (3d) 190320-U (Aug. 26, 2022).

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