December 2021 Case Notes & Comments

"As we express our gratitude, we must never forget that the highest appreciation is not to utter words but to live by them." ~ John F. Kennedy

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 for a violation of 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 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).

LET IT SNOW! - THIRD CIRCUIT REAFFIRMS PROTECTIONS OF NATURAL ACCUMULATION RULE:  In a case serving as a timely refresher and reinforcement of the natural accumulation rule, plaintiff slipped and fell on ice at defendant’s gas station, sustaining injury.  In moving for summary judgment, defendant argued that the ice was a natural accumulation for which no duty was owed, and that defendant had no actual or constructive notice of the ice present before plaintiff’s fall.  In response, plaintiff argued that defendant voluntarily undertook a duty to remove natural accumulations of snow and ice, and breached its own corporate policy calling for removal efforts to ensure “bare pavement”.  The trial court granted summary judgement, and plaintiff appealed.  The Third District Appellate Court affirmed.  The Court reiterated that there is no duty to remove natural accumulations of ice and snow, and while a defendant who voluntarily undertakes to remove snow/ice may be liable if it is performed negligently, the failure to remove all snow or ice does not constitute negligence.  The Court also rejected Plaintiff’s claim that a defendant’s self-imposed rules or guidelines create a duty to remove natural accumulations of snow or ice.  Gore v. Pilot Travel Centers, LLC, 2021 IL App (3d) 210077 (Dec. 9, 2021).

SUBROGATION: APPELLATE COURT EXPANDS ILLINOIS’ ANTI-SUBROGATION / IMPLIED CO-INSURED RULE:Tenants rented an apartment from Insured-Landlord pursuant to a lease that expressly stated that Landlord “shall maintain fire and other hazard insurance on the premises only” and that Tenants would be “responsible for any insurance … on their possessions … in the leased premises.” Prior to the execution of the lease, Landlord procured liability and property coverages from Insurer. The gas stove went on the fritz and Landlord, who was responsible for the appliances under the lease, called Workman. When Workman left to retrieve parts during the service call, Tenants began smelling gas, which they tried to mask with Febreze, to no avail. Tenants then turned on the stove, which burst into flames, setting the apartment ablaze and causing severe fire damage. Insurer paid Landlord’s claim and then filed a subrogation action against Workman, to recoup payment for the fire damages. Workman filed third party actions against the Tenants, who then tendered the claims back to Insurer. Insurer twice declined to provide Tenants with a defense and Tenants filed a declaratory action. On summary judgment, citing the Illinois Supreme Court’s decision in Dix Mutual Insurance Co. v. LaFrambroise, 149 Ill. 2d 314 (1992), Workman and Tenants argued that since Tenants were implied co-insureds under the Landlord’s policy, Insurer had a duty to defend them against Workman’s third-party contribution claim. The trial court rejected these arguments. On appeal, however, the Illinois appellate court reversed, holding that Tenants were co-insureds, finding the fact that the Landlord purchased the policy prior to the start of the tenancy irrelevant. In addition, the appellate court also rejected Insurer’s argument that policy language controlled co-insured status. Instead, the appellate court found the lease controlling, noting that Landlord had agreed “to obtain fire insurance on the premises while exculpating himself from liability for damage to the personal property of … [T]enants. Per Dix, and the facts of this case, … [Tenants] are coinsured under the fire policy regardless of the policy language.” EDITOR’S NOTE: While we recognize the judicial expansion of Illinois’ anti-subrogation rule, we agree with the dissent and special concurrence, which contend that the Third District’s ruling extends well beyond the narrow holding set forth in Dix and is, therefore, misplaced. Regardless, as a result of this decision, insurers subrogating in Illinois under landlord policies should anticipate tenders of defense, submitted by tenants who have been sued by potentially culpable defendant(s), even though they are not expressly named in the policy. Sheckler v. Auto-Owners Insurance Co., 2021 IL App (3d) 190500 (Oct. 22, 2021).

WORKERS’ COMPENSATION – ALLEGED TRAVELING EMPLOYEE’S INJURIES FOUND NOT COMPENSABLE: Employee-Petitioner, an office manager for Employer-Respondent, a concrete construction business, filed a petition for traumatic brain and other injuries she sustained in a motor vehicle accident while performing a personal errand. Employee argued that her injuries were compensable because she was a “traveling employee” at the time of the accident. In Illinois, a “traveling employee” who is required to travel away from an employer’s premises to perform work is held to be in the course of employment from the time they leave home, until their return. Injured traveling employees may receive benefits if the personal errand is performed during the course of a business trip. In this case, Employee’s employment required semi-frequent travel away from the home office. On the morning of the accident, however, Employee performed 2 hours of work at the home office. Importantly, documents, such as pharmacy receipts, indicated that prior to the accident, Employee was traveling for purely personal reasons – namely, to pick up medication and attend a physical therapy session. In view of the documentary evidence, the arbitrator found the testimony from Employee’s family friend, stating the Employee was “out doing work” and “running a work errand” contradictory and not credible. Under these facts, the appellate court held Employee failed to prove by a preponderance of the evidence that she was engaged in a business errand at the time of the accident. Held: Commission’s decision was affirmed. Gina Brettman v. Illinois Workers’ Compensation Commission et al., 2021 IL App. 1st 210145 WC-U (Ill.App.Ct.2021).

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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