February 2017 Case Notes & Comments

"If you don't know there's a trampoline in the room, you're not going to dust the ceiling for prints. ~ quote from "Law & Order"

MONTHLY QUIZ: Pedestrian is walking next to a gas station under construction when he hears skidding tires and turns to look behind him. Turning causes Pedestrian to step off the sidewalk into the construction area and Pedestrian "suddenly and without warning" falls "violently into a hole, sustaining serious injuries." Plaintiff sues Contractor building gas station for negligence and Owner for negligence and negligent hiring and supervision. At deposition, Pedestrian admits that the condition is open and obvious. Owner and Contractor move for dismissal, but Pedestrian argues that the distraction exception applies. The distraction exception applies in special circumstances where a foreseeable distraction causes a person to be distracted. Is skidding tires a foreseeable or commonplace distraction? Does the distraction exception apply under these circumstances? You be the judge. (Answer below) 

LEF SUCCESSFULLY ADVOCATES FOR CLIENT IN THE ILLINOIS SUPREME COURT: On December 15, 2016, Gerard A. Fosco of Leahy, Eisenberg & Fraenkel, Ltd. appeared before the Illinois Supreme Court on behalf of his client, a home inspector and repairman, in the case Schweihs v. Chase Home Finance, LLC, et al., arguing the continued viability of the "impact rule", which is a requirement for alleged victims of emotional distress. Illinois' high court agreed with Mr. Fosco and affirmed the dismissal of the plaintiff's claims. The defendants timely filed a petition for rehearing, which is presently under consideration in the Illinois Supreme Court.

PREMISES LIABILITY - TENANT OWES NO DUTY WHERE LANDLORD IS RESPONSIBLE FOR MAINTENANCE / REPAIRS:  Just after getting fired, Beautician, who had been working as an independent contractor at a retirement community salon, began closing her work station and was injured when a hinged countertop fell onto her head/neck because the locking mechanism failed.  Beautician sued Operator of the retirement community and the operator of the salon ("Salon").  Salon moved for summary judgment, arguing that it did not have an ownership interest in the premises or the fixtures, and therefore owed no duty to Beautician.  The trial court granted Salon summary judgment, citing the lease agreement which provided that Operator, not Salon, was responsible for any repairs of any damage to the fixtures on the premises.  Beautician appealed, but the Appellate Court affirmed, reasoning that only the party in control of the premises can be held liable for a defective or dangerous condition on the premises.  Further, the Court noted that, even though a landlord is not generally liable for injuries caused by a defective or dangerous condition on premises leased to a tenant and under the tenant's control, an exception applies when the landlord expressly agrees to keep the premises or parts in good repair or voluntarily assumes the maintenance obligation by its conduct.  Here, the Court found that, pursuant to the terms of the lease, Salon did not have control of the repair and maintenance of the countertops, and therefore did not owe a duty to Beautician. Additionally, the Court found no evidence that Salon had actual or constructive notice of any defect, thus warranting summary judgment. Hanna v. Creative Designers, Inc., 2016 IL App (1st) 143727) (Nov. 30, 2016).

WORKERS COMPENSATION - UM SETOFF PROVISION DID NOT VIOLATE WC ACT: Following an accident that occurred in the course and scope of her employment, Employee received more than $400,000 benefits under the IL Workers' Compensation (WC) Act (Act)( 820 ILCS 305/1-30). In addition, Employee sought benefits from Insurer under an uninsured motorist (UM) Policy. The UM Policy included a provision (Setoff Provision) stating that "amounts payable for damages" under UM Policy coverage "will be reduced by... amounts paid or payable" under the Act. Insurer argued that it was entitled to summary judgment because Employee had already collected WC benefits in excess of the UM Policy's $250,000 per person limit. The trial court granted Insurer summary judgment. On appeal, Employee argued, among other things, that: 1) the medical payments made by Employer directly to medical providers under the Act were not "for" Employee, but rather Employer's benefit, and therefore not subject to the Setoff Provision; and, 2) the Setoff Provision violated the Act and was unenforceable. The appellate court disagreed with Employee, noting that under Section 8(a) of the Act, non-disputed medical payments made by Employer directly to providers were made "on behalf of" Employee. In addition, the appellate court determined that the Setoff Provision was valid, holding that such clauses were generally enforceable and entirely consistent with Section 5(b) of the Act and Illinois public policy. Country Preferred Insurance Co. v. Groen, 2017 IL App (4th) 160028 (Jan. 27, 2017). 

ANSWER TO QUIZ: Defendants win, Pedestrian's case was properly dismissed by the trial court. Courts will find a distraction foreseeable only if there are special circumstances, of which a reasonable landowner would be aware, that would cause persons to be distracted. Here, the distraction of a braking sound behind a pedestrian as he walks along a street is commonplace and not a special circumstance. Moreover, while not by itself decisive, there was no evidence or allegation that Defendants contributed to the distraction, which weighs heavily against foreseeability. Peters v. R. Carlson & Sons, Inc., 2016 IL App (1st) 153539 (Jan. 4, 2017).

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