December 2018 Case Notes & Comments

"December, being the last month of the year, cannot help but make us think of what is to come." ~ Fennel Hudson, A Meaningful Life

MONTHLY QUIZ: In late summer, Mrs. Claus breaks her foot when Santa's head elf, Bernard, drops a toy. Consequently, Santa hires Grinch to provide Mrs. Claus with home healthcare services while convalescing. Over 8 visits, Grinch provides home health care services to Mrs. Claus and the two become friends. Each visit, Grinch enters the Claus' house by walking up several stairs to the front porch. On the last visit, Santa is home with Rudolph. As Grinch is leaving, he stands on the porch talking to Santa and begins petting Rudolph. Grinch falls off the porch and sues Santa for negligence and under the Animal Control Act (Act) (510 ILCS 5/16 (West 2012)). At deposition, Grinch admits that nothing about the condition of the porch caused him to fall. Grinch explains that while Rudolph didn't push him off the porch, Rudolph moved closer to him "because that's what pets do when you pet them." Grinch claims that Rudolph's nuzzling caused him to move his foot to the side, lose his balance and fall. Santa moves for summary judgment as to the negligence count on the basis that he owed Grinch no duty and there were only open and obvious conditions that caused Grinch to fall. Santa also moves to dismiss the Animal Control Act count on the basis that Rudolph never attacked or injured Grinch. Grinch contends that a question of fact exists with regard to whether he was distracted by petting Rudolph and thus, whether the "distraction exception" applies to the open and obvious rule. Grinch also argues that he should recover under the Act even though Rudolph did not attack, because Rudolph's actions, though harmless, caused Grinch's injury. Who is correct? You be the Judge. (Answer below).  

COURT GRANTS LEF JUDGMENT ON THE PLEADINGS ON TRUCKING LOSS. Congratulations to Howard Randell and Roland Keske, who recently secured a judgment on the pleadings in connection with a shipment of dairy and soy based products that spoiled during their shipment from Illinois to New York. Shortly after the insured signed for and accepted the load, its driver admittedly set the refrigerated truck (reefer) temperature at 53° F, not 35° F. Upon its arrival in New York, the shipper rejected the load and subsequently sued the insured for, among other things, exposing the products to higher temperatures than set forth in the shipping instructions. LEF convinced the Court that the policy only provided coverage for "spoiling, freezing or other change in temperature" to the extent such loss or damage was "directly caused by a sudden and accidental mechanical failure or breakdown" of the refrigeration equipment. Further, Howard and Roland were able to convince the court that no discovery was necessary in light of the insured driver's admissions that he incorrectly set the reefer temperature and that the truck was "fine." Sentry Select Insurance Company v. An Enterprise, Inc. et al., 2017 CH 07390 (Cook).

OPEN AND OBVIOUS UNNATURAL ACCUMULATION WARRANTS SUMMARY JUDGMENT:  Tenant in an apartment complex was waking from his apartment to a laundry room in an adjacent apartment building.  A snow plowing Contractor had shoveled a pile of snow onto the sidewalk between the buildings.  Tenant saw the snow pile, but decided to walk on it anyway, causing him to slip and fall.  Property Manager and snow plow Contractor moved for summary judgment, which was granted. On appeal, the Fourth District held that the snow pile was open and obvious, as a matter of law, as (a) there was no dispute as to the physical nature of the "big" snow pile, (b) Tenant testified that he saw the snow pile and decided to walk on it anyway, and (c) Tenant testified that he knew he was walking on snow and ice.  The Fourth District also rejected Tenant's attempt to apply the "Deliberate Encounter Exception", which avoids the effects of the open and obvious doctrine where the invitee is likely to proceed to encounter the known or obvious danger because a reasonable person in their position would do so.  The Court held that this exception did not apply in this case because (a) Tenant admitted there were multiple ways to reach the laundry facility other than walking through the snow pile, and (b) Tenant was not under any threat of economic compulsion to do his personal laundry requiring him to encounter the condition.  Winters v. MIMG LII Arbors at Eastland, LLC, 2018 IL App (4th) 170669 (Aug. 14, 2018).  

KOTECKI WAIVER DOES NOT A LIEN WAIVER MAKE: Plaintiff-Installer, an employee of 2nd Tier-subcontractor, Window Company, was injured while installing a window. Installer filed suit against the General Contractor (General), which in turn filed a contribution claim against Window Company.  Window Company filed an affirmative defense asserting that, pursuant to Kotecki v. Cyclops Welding Corp., its liability for contribution was limited to its workers' compensation liability (known as a Kotecki cap). General moved to strike this affirmative defense, arguing that the contracts waived the Kotecki cap. The relevant portions of the contracts provided that Window Company agreed to defend and indemnify the Subcontractor and General from and against any and all claims caused by the negligence of either of them, and further provided that Window Company agreed that its obligations to indemnify, defend, and save harmless would not in any way be diminished by any statutory or constitutional immunity it enjoyed from suits by its own employees or from limitations of liability or recovery under workers' compensation laws. The trial court granted General's motion, holding that Window Company contractually waived its Kotecki cap; and further, that Window Company also waived its statutory workers' compensation lien. On appeal, Window Company challenged only the court's ruling as to the waiver of its lien.  In reversing the trial court's ruling as to the lien waiver, the First District Appellate Court emphasized that the lien and limited liability are separate concepts, and an employer's negligence has nothing to do with its statutory right to recovery workers' compensation payments. A waiver of the Kotecki cap defense does not mean there must also be a waiver of the workers' compensation lien.  In analyzing the language of the contracts, the Court held that there was no basis for finding a lien waiver.  It further held that, to constitute such a lien waiver, the contract language must contain a specific reference to the lien and an unmistakable reference to an intention that it be waived.  Cooley v. Power Construction Co., 2018 IL App (1st) 171292 (Jun. 11, 2018).

ANSWER TO QUIZ: Santa is correct and the appellate court agreed that Grinch's negligence claim was properly dismissed by the trial court. While Santa  generally has a duty to keep his premises in a reasonably safe condition and warn invitees of any dangerous conditions, Santa is not generally required to foresee and protect others from dangerous conditions that are open and obvious. The "distraction exception" and "deliberate encounter" rule are two exceptions. Under the distraction exception, Santa owes Grinch a duty of due care if Santa has reason to expect that Grinch's attention may be distracted, so that the Grinch will not discover, forget about or fail to protect himself from obvious conditions. However, Santa is not responsible for anticipating and protecting Grinch from voluntary distractions, solely of Grinch's own making. On appeal, the appellate court noted that because there was no condition that caused Grinch to fall, Santa owed Grinch no duty. Since there was no condition, the appellate court saw no reason to address the applicability of the distraction exception, or whether the act of petting Rudolph was a voluntary distraction. Under the Animal Control Act, Rudolph could be considered the proximate cause of Grinch's injury only where the injury was caused by Rudolph's conduct, not by Grinch's independent act. Here, Grinch alleged that he was petting Rudolph when Rudolph "moved into him causing him to lose his footing and step off the porch." At deposition, Grinch clarified that other than in response to Grinch's petting, Rudolph never came into contact with him but simply inched closer to Grinch. The appellate court found that such facts do not give rise to a claim under the Act. Grinch's heart shrinks three sizes upon losing his appeal. Crosson v. Ruzich, 2018 IL App (5th)170235 (Jul. 31, 2018). 

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