February 2018 Case Notes & Comments

"He who would learn to fly one day must first learn to stand and walk and run and climb and dance; one cannot fly into flying." ~ Friedrich Nietzsche.

COURT ALLOWS EVIDENCE OF INTERNAL SAFETY RULES: Commuter sued Metra for injuries sustained when a Metra ticket agent bumped into him, causing him to fall and break his hip.  At the time of the occurrence, the Metra ticket agent was asking a homeless person to move from the platform, and as the homeless person stood up, the ticket agent took a step back without looking behind him. Unbeknownst to the ticket agent, Commuter was standing immediately behind him, and was bumped. During the trial, Commuter introduced evidence of Metra's internal safety rule providing that when walking on an elevated structure, Metra employees must look before they step in any direction. The jury found for Commuter, and Metra appealed, arguing that the trial court erred in allowing into evidence the internal safety rules and regulations. The First District Appellate Court affirmed, finding that the trial court did not err in admitting the internal safety rule as, while violation of an internal rule would not constitute proof of negligence in and of itself, it could be considered along with other evidence. The Court noted that the jury was free to consider the rule along with other evidence in reaching their determination that Metra bore responsibility for the incident, and, for example, the jury could accept additional testimony that Metra's employee had a valid reason for acting in contravention to the rule in that particular case.  The Court went on to hold that even if the trial court erred in admitting the internal safety rule, its admission would constitute only harmless error, and would not warrant reversal.  Hoffman v. Northeast Ill. Reg'l Commuter R.R. Corp., 2017 IL App (1st) 170537 (December 29, 2017).

LEF WINS APPEAL IN NATURAL ACCUMULATION RULE - SLIP AND FALL CASE: Congratulations to David Walters for his recent win in the Illinois Court of Appeals for the First District. The Illinois Court of Appeals recently affirmed a grant of summary judgement in favor of LEF's client, the owner of the suburban strip mall that leased space to a well-known health club franchise. Pursuant to the terms of the lease agreement with its tenant, the client-owner was responsible for plowing/removing snow and ice from the walkways and adjoining parking lot.  Plaintiff was injured when she slipped and fell in the parking lot, allegedly on unplowed snow, while walking to entrance of the health club.  Plaintiff could not, however, identify anything that would establish that the snow had been negligently plowed and could not establish the existence of an unnatural accumulation of snow and ice.  The trial court granted summary judgment concluding that Plaintiff was unable to establish a prima facie case of negligence because she was only able to establish that her injuries were caused by a natural accumulation of snow and ice. On appeal, Plaintiff argued that while Illinois Natural Accumulation Rule provides a defense in tort, liability could still be imposed against the landlord under a breach of contract claim.  The First District Appellate Court clarified the law on this issue and held that liability could be imposed upon a landlord for injuries caused by natural accumulations of snow and ice only in situations wherein there was contractual agreement to plow and/or remove snow and ice and the landlord failed to perform any measure of snow plowing or removal after a storm event; however, in cases wherein snow plowing activities were initiated and completed, a plaintiff is still required to establish that the landlord caused or contributed to the cause of  an unnatural accumulation of snow and/or ice through negligent snowplowing activities. Mr. Walters convinced the Illinois Appellate Court that his case fell in the latter category and affirmed summary judgment.  Robin Allen, v. Cam Girls, LLC , et al.,2017 IL App (1st) 163340,2017 Ill. App. LEXIS 820 (December 26, 2017).

ARBITRATION PROVISION WARRANTS STAY OF NON-ARBITRABLE BUT INTERRELATED CLAIMS:  Plaintiff filed a negligence action against defendant, a supportive living facility, following the death of Plaintiff's decedent, a resident of the facility.  The complaint asserted counts pursuant to the Wrongful Death Act, Family Expense Act, and Survival Act.  In effect at the time of Decedent's death, was a residence agreement which provided that all claims arising out of the agreement, including those of malpractice, were subject to binding arbitration and could not be brought in a court of law.  The Circuit Court granted Defendant's Motion to Dismiss the Family Expense Act and Survival Act counts pursuant to the arbitration provision.  However, the Circuit Court denied Defendant's Motion to Stay the Wrongful Death claim pending the outcome of the arbitration.  Defendant appealed, pursuant to Illinois Supreme Court Rule 307(a).  The First District Appellate Court reversed the Circuit Court, remanding for the entry of an order staying the proceedings on the wrongful death claim until the conclusion of the arbitration.  In so ruling, the Appellate Court cited Section 2(d) of the Uniform Arbitration Act, which provides in pertinent part that "[a]ny action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration...has been made under this Section or, if the issue is severable, the stay may be with respect thereto only."  The Court held that, as all three of the Plaintiff's claims turned on allegations of the Defendant's negligence, the issues were sufficiently interrelated in that whether the Defendant was negligent in its care of Plaintiff's decedent was definitive in the arbitrable claims and the wrongful death claim in the circuit court.  Therefore, allowing the arbitration to proceed first could eliminate the need for the court proceedings, thus meeting the goals of judicial economy and of resolving disputes outside of the judicial forum.  Hayes v. Victory Centre of River Woods, LLC, 2017 IL App (1st) 162207 (November 9, 2017).

INSURANCE COVERAGE - REASONABLE BELIEF AND ILLINOIS DRIVER LICENSING LAW: Father requests that his 15-year-old Son (who possesses a valid driver's permit) move the family's van to another parking space on the street. Father and Son later testify as to their belief that Son may legally park the van with his permit as long as his Father is supervising. Son parallel parks the car while Father observes from across the street. While parking, Son accidentally hits the car in front of him, causing that car to move forward and pin Plaintiff between cars. After Plaintiff files an injury claim against Father and Son, their Insurer files a declaratory action, arguing that it has no duty to defend or indemnify against Plaintiff's complaint because Insurer's policy excludes coverage for "bodily injury or property damage arising out of the use by a person of a vehicle without a reasonable belief that the person is entitled to do so." Insurer files a motion for summary judgment on this issue, which the trial court grants, holding that Son could not have had a reasonable belief that he was entitled to operate the van because Father was not seated next to him as required by the Illinois Driver Licensing Law. On appeal, the First District examined whether the coverage exclusion unambiguously applies to drivers without a valid license. The First District determined that, "Although a factfinder may determine that [Son] did not have a reasonable belief as required by the policy, this conclusion is not clear or free from doubt." Specifically, the appellate court observed that, under the facts of this case, viewed in the light most favorable to the nonmoving party [the insureds], the term "reasonable belief" is ambiguous. Therefore, the construction of that term in the policy is a question of fact, and the trial court's grant of summary judgment was erroneous. Founders Ins. Co. v. Sheikh, 2017 IL App (1st) 170176 (Sept. 25, 2017).