June 2024 Case Notes & Comments

"I probably trust the answers that come out of ChatGPT the least of anybody on Earth." ~ Sam Altman, CEO of ChatGPT

MONTHLY QUIZ: In May 2019, Patient undergoes hip surgery where Doctor implants a rod to fix a fracture. During PT, Patient falls and the rod comes out of place. Patient undergoes numerous additional surgeries, sustains an infection, and loses the ability to walk. On May 25, 2021, Patient files a pro se complaint against physical therapy Facility alleging that the fall took place on May 25, 2021 as a result of Facility's negligence. Patient subsequently dies and her Estate is substituted as Plaintiff. As an exhibit to the amended complaint, Estate attaches a letter from certifying Doctor which lists the date of the fall as May 23, 2019, but acknowledges that Doctor has "no personal knowledge" of the fall itself. Also attached is a letter from the Department of Public Health, which also lists the date of the fall as May 23, 2019. Both Defendants argue that the exhibits attached to the complaint, which list the fall as May 23, 2019 control and move to dismiss for failure to state a claim (i.e. a "2-615 motion"). Defendants contend that the exhibits, which list the fall as May 23, 2019, are controlling and therefore the claims are time-barred by the 2-years personal injury statute of limitations. In response, the plaintiff argues that the allegations of the complaint should control. In addition, Plaintiff calls into question the accuracy of the exhibits through an affidavit of the plaintiff's counsel, which attests that the date of the fall was incorrectly identified as May 23, 2019 when paperwork was submitted to the Department of Public Health. The trial court dismisses on the ground that where the exhibits contradict the allegations, the exhibits control. The Plaintiff-Estate appeals. Under these facts, do the allegations of the complaint, or the date listed on the exhibits control? Is the plaintiff's case time-barred? You be the judge. (Answer below).

CHANGE TO INDIANA LAW REGARDING SEATBELT EVIDENCE - LACK OF SEATBELT USE MAY NOW BE USED TO REDUCE DAMAGE AWARDS: Under Indiana law, as outlined in Indiana Code 9-19-10, all occupants of a motor vehicle over the age of 16 must wear a seat belt when the car is in forward motion. On Monday, March 11, 2024, Indiana Governor, Eric Holcomb, signed House Bill 1090 into law, which "[a]llows evidence of a failure to comply with passenger restraint system statutes to be admitted in a civil action as to mitigation of damages for a plaintiff who is at least 15 years of age or older." As such, beginning on July 1, 2024, an Indiana plaintiff’s failure to use a seatbelt may be introduced as evidence in vehicle accident lawsuits to permit juries to reduce damage awards based on that information. https://iga.in.gov/legislative/2024/bills/house/1090/details.

PREMISES LIABILITY - DISPUTED CIRCUMSTANTIAL EVIDENCE AS TO HOW LONG CONDITION EXISTED FOUND INSUFFICIENT TO WITHSTAND SUMMARY JUDGMENT: Plaintiff-Customer arrived at Store at 9 a.m., parked in the front lot and was walking toward the entrance when she slipped and fell on a foreign gray substance, which Customer described looked wet and had a a tire track through it. Customer sued Store for negligence and pursuant to the Premises Liability Act (740 ILCS 130/1 et seq). In discovery, Employees who opened the the Store at 7 a.m., testified that they parked in a different side lot and entered into the back of the Store. Store Employees further stated that they did not know the identity of the substance, how it got there or how long it had been there. Store Manager testified that she reviewed the surveillance footage of the lot and did not recall seeing any gray substance in the lot. Store filed a motion for summary judgment arguing, among other things, that Customer could not establish that it (1) was responsible for the presence of the gray foreign substance in the parking lot or (2) had actual or constructive knowledge that the gray foreign substance was present in the parking lot. The trial court agreed. In Illinois, the general rule is that liability will be imposed where a business invitee is injured by slipping on a foreign substance on the premises if (1) the substance was placed there by the negligence of the proprietor, or (2) his servant knew of its presence, or (3) the substance was there a sufficient length of time so that, in the exercise of ordinary care, its presence should have been discovered. If, however, the gist of a complaint is that the landowner did not create the condition, the plaintiff must establish that the landowner knew or should have known of the defect. On review, Customer argued that sufficient circumstantial evidence was presented from which a trier of fact could reasonably infer that the substance was present in the parking lot “for an extended period of time,” such that defendant should have known about it and removed it. In rejecting this argument, however, the appellate court held that facts "cannot be established through circumstantial evidence unless the circumstances are so related to each other that it is the only probable, and not merely possible, conclusion that may be drawn." In this case, the appellate court noted that there was no evidence as to the source of the substance, how it came to be in the parking lot, or how long it existed in the parking lot. Further, according to the appellate court, the circumstantial evidence could also have been interpreted to show that the grey substance was deposited only that morning, some time after 7 a.m. and "closer" to the time of the alleged fall, at 9 a.m. Accordingly, the appellate court affirmed the grant of summary judgment based upon lack of evidence tending to show constructive notice. See Quast v. Farm & Fleet of Loves Park, et al., 2024 IL App (4th) 230386-U (May 16, 2024).

WORKERS' COMPENSATION - NO GREATER RISK THAN GENERAL PUBLIC? NO PROBLEM FOR TRAVELING EMPLOYEE: Appellant-Employer (Respondent), a municipality, appealed the Circuit Court’s decision that Appellee-Employee’s (Petitioner) injury arose out of his employment. Petitioner was employed as a blight inspector for a municipality. His job duties consisted of inspecting properties throughout the city to determine whether conditions were deteriorating or garbage was accumulating. Each morning, he was required to report to the city’s town hall at 7:30 a.m. He accessed the building via stairwell only accessible to employees. Each morning he ascended the stairwell to his office where he obtained his work phone and downloaded his assignments for the day from a city-owned computer. Once he had his assignments, he would descend the same staircase to his city-provided vehicle and conduct his inspections. One morning after downloading his assignments, he fell down the flight of stairs he normally traversed, sustaining bilateral shoulder injuries requiring surgical intervention. Evidence overwhelmingly supported the staircase was void of defects. Respondent denied the claim arguing that descending a staircase placed Petitioner at no greater risk than the general public, and that Petitioner was not a traveling employee at the time of the accident. At trial, the Arbitrator agreed and found the accident non-compensable. The Commission reversed the Arbitrator’s decision and awarded benefits. They reasoned that the Petitioner was a traveling employee at the time of the accident, and that this status was not lost merely because the accident occurred on stairs within the city’s facility. The circuit court and the Appellate Court affirmed the Commission’s decision. The “no greater risk” standard does not apply to traveling employees. Instead the standard is whether the Petitioner was “engaging in conduct that was reasonable and foreseeable to the employer”. The Respondent argued that Petitioner was not a traveling employee at the time of the fall because he was still on the employer’s premises. However, uncontradicted evidence established that travel away from the city hall was an essential element of Petitioner’s job duties. The following facts were undisputed. After arriving at city hall for his shift, Petitioner had obtained his phone, downloaded his assignments for the day, and fell down stairs on his way to a company owned vehicle to travel around the city and perform off-site inspections. The Appellate Court ultimately concluded this series of events was reasonable, foreseeable, and incident to Petitioner’s job as a blight inspector. Town of Cicero v. The Illinois Workers’ Compensation Commission, 2024 IL App (1st) 230609WC (April 5, 2024).

JOLIET OFFICE RELOCATES TO NEW SPACE AT 58 EAST CLINTON STREET. Leahy Eisenberg & Fraenkel is pleased to announce the Firm’s Joliet office has relocated to 58 East Clinton Street, in downtown Joliet and walking distance to the courthouse. The new layout and design will support the Joliet office’s continued growth and hybrid working needs.

ANSWER TO QUIZ: The plaintiff wins as the claims are not time-barred. In this case, which is a negligence case against Facility, the allegations of the complaint control. In reviewing the matter, the appellate court held that where the cause of action (i.e. negligence) is not founded upon the written instruments attached as exhibits, the exhibits are merely evidence. Here, the appellate court reasoned that the Estate's cause of action was not founded upon the exhibits and were merely evidence submitted in support of the negligence claim. As such, for purposes of a motion to dismiss, the allegations of the complaint should have been accepted as true. Judgment reversed. Bulczak v. Alden Poplar Creek Rehabilitation Center, 2024 IL App (1st) 231180-U(May 16, 2024).

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