July 2012 Case Notes & Comments

I [was] second... There [was] only one place to go.
~ Bradley Wiggins, professional cyclist

MONTHLY QUIZ: In 2004, Customer goes to Salon for a seaweed facial. Shortly after leaving, Customer’s face turns red and blotchy. Salon Manager tells Customer “to come back to get a Vitamin C facial,” which worsens the condition. Customer sues, contending that Salon negligently applied chemicals and products to her face causing permanent burns and other injuries. Customer discloses a licensed Esthetician, with experience and training in various skin and facial treatments and techniques, to testify as an expert witness as to the standard of care applicable to estheticians. Esthetician testifies that based upon her education, training, licensing and experience, the application of the second facial was contraindicated, breached the standard of care and exacerbated Customer’s condition. At deposition, Esthetician testifies that her textbooks and the Salon’s own training manual support her opinions - though she does not indicate whether her textbooks were published prior to 2004 or whether Salon’s training manual was in effect when the two facials were applied. Salon objects, arguing that Esthetician, who did not receive her license until 2006, could not and did not testify as to the appropriate standard of care. The trial court agrees. Did the trial court make the right decision? Should the esthetician be allowed to testify at trial as to the standard of care? You be the judge.  (Answer below)

 

INSURANCE LAW - INSURED STILL ENTITLED TO UIM BENEFITS DESPITE ARGUABLE FAILURE TO COMPLY WITH COOPERATION CLAUSE: Passenger was injured while riding in Driver’s car. Passenger settled for the policy limit with Driver and Driver’s insurer. Passenger then sought underinsured motorist (UIM) coverage under his policy with Insurer, who denied coverage. Insurer then filed a declaratory action contending that Passenger’s failure to notify Insurer of the settlement until weeks after the release was signed violated the policy’s cooperation clause, that Passenger destroyed Insurer’s right of subrogation, and that, as a result, Passenger forfeited any UIM payments. The trial court granted Insurer summary judgment but the appellate court reversed and entered judgment for Passenger. Passenger argued that here, even assuming he violated the cooperation clause, Insurer did not suffer any prejudice in the form of lost subrogation rights since Driver had no significant assets to collect. Passenger was entitled to summary judgment because he established as a matter of law that Insurer could not meet its burden to prove that it suffered substantial prejudice from Passenger’s settlement with Driver.  Progressive Direct Insurance v. Jungkans, 2012 IL App (2d) 110939 (June 27, 2012)

 

ANIMAL CONTROL ACT - KNOWLEDGE, BY ITSELF, IS INSUFFICIENT TO CREATE OWNERSHIP OF STRAY DOGS: Plaintiffs were injured during two stray dog attacks on property owned by Cook County Forest Preserve. Plaintiffs sued the Forest Preserve under the Animal Control Act, which holds the owner of dogs liable for the injuries caused by a dog. The Forest Preserve moved for summary judgment, claiming it was not an “owner” of the stray dogs.  Plaintiffs objected, arguing that Forest Preserve had been told the dogs were present on the property and failed to remove them properly.  Appellate Court found that Forest Preserve was not an “owner” of the stray dogs, because knowledge of the presence of the dogs is not tantamount to permitting the dogs to remain on the property, especially where the dogs had been removed previously and had returned. Cieslewicz v. Forest Preserve Dist. of Cook County, 2012 IL App. (1st) 100801 (May 17, 2012).

 

ILLINOIS CONSUMER FRAUD ACT - CLAIMED ACTS OF FRAUD MUST OCCUR PRIMARILY IN ILLINOIS: Illinois Alarm Company hired Florida Consultants to provide business and consulting services. Alarm Company alleged but that Consultants billed for services not actually performed.  Alarm Company filed suit in Illinois alleging that Consultant’s fraudulent billing violated the Illinois Consumer Fraud Act. The trial court dismissed Alarm Company’s Consumer Fraud Act claims because the consulting contracts were entered into and performed in Florida. In affirming the dismissal, the appellate court held that a valid claim under the Illinois Consumer Fraud Act must show that the circumstances relating to the fraud occurred primarily and substantially in Illinois. The appellate court upheld the trial court’s ruling since most of the relevant transactions between Alarm Company and Consultants occurred in Florida.  International Profit Associates, Inc. and International Tax Advisors, Inc. v. Linus Alarm Corp.  2012 IL App (2nd) 110958 (June 20, 2012).

 

ANSWER TO QUIZ:  Salon wins! Licensing is only one of many relevant factors to consider - not a prerequisite - in determining whether a witness is qualified to testify as an expert. Though not licensed until approximately two years after the incident, the trial court had the discretion to allow Esthetician to testify as long as her testimony was based upon special experience, qualifications and knowledge that would the aid the trier of fact in reaching its conclusions. However, since the Esthetician was licensed in 2006, it was “critical” for her to establish that the recommended products and techniques were used in 2004 and that her opinions related to the applicable standard of care that existed in 2004. Since Esthetician did not, the trial court was right to exclude her testimony.Colburn v. Mario Tricoci Hair Salons and Day Spas, 2012 IL App (2nd) 110624 (June 26, 2012)

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