March 2012 Case Notes & Comments

“Make sure you have finished speaking before your audience has stopped listening” ~ Dorothy Sarnoff

MONTHLY QUIZ: While walking through an indoor mall to get a cup of coffee, Plaintiff slips and falls on a substance she claims smells “like Windex”, injuring her shoulder. Plaintiff brings a negligence action against Defendants, who clean, manage, control and/or maintain the mall. At deposition, Plaintiff, a department store employee, testifies that while she did not observe anyone in the area at the time of her fall, janitors “are constantly cleaning [the area] and they’re constantly spraying Windex and squeegeeing it.” Plaintiff admits, however, that she did not know where the liquid substance came from. Two security officers and the project manager in charge of housekeeping check the area where Plaintiff claims to have fallen, but find nothing on the floor. Further, two different “spill/wet floor logs” indicate nothing found on the floor during the relevant time period. Is Plaintiff’s testimony sufficient evidence to show that the presence of the substance on the floor is tied to any of the Defendants? Who wins?  You be the judge.  (Answer below).


TRIAL - PROMISE TO PAY EXPENSES, NOT ADMISSIBLE; PHOTOS TAKEN ONE YEAR AFTER ACCIDENT, ADMISSIBLE:  Plaintiff was helping Defendant store Halloween decorations in the loft of Defendant’s shed. Since there was no ladder in the shed, Defendant provided Plaintiff with a large wooden wire spool on which to stand. The spool teetered, Plaintiff fell to the ground and was injured. Defendant told Plaintiff’s wife that he was sorry for the accident, and that he would pay all of Plaintiff’s expenses. Plaintiff filed suit for negligence. At trial, the judge admitted the portion of Defendant’s statement that he was sorry about the incident, but ruled that testimony about payment of medical expenses was not admissible. The jury found in favor of Defendant and Plaintiff appealed. Both Section 8-1901(a) of the Code of Civil Procedure and Rule 409 of the Illinois Rules of Evidence state that evidence of an offer or promise to pay medical, hospital or similar expenses occasioned by an injury is not admissible to prove liability. Plaintiff argued that the two provisions pertained only to medical expenses, and that the open-ended nature of Defendant’s statement necessarily included any out-of-pocket losses sustained by Plaintiff, including lost wages, mileage or any other expenses incurred. Appellate Court rejected the argument, ruling that the statutory and Rule provisions excluding evidence of promises to pay “similar expenses occasioned by an injury” were broad enough to encompass expenses beyond hospital and medical costs. Plaintiff also appealed Trial Court’s ruling admitting Defendant’s photographs of the shed’s interior, taken one year after the incident. Though Defendant testified that the photos fairly and accurately depicted the layout of the shed, the photos showed a ladder that was not present at the time of the accident. The Appellate Court noted that Trial court had admonished the jury that the photos were admitted only to show the interior of the shed and the position of the loft, not the contents of the shed. In this context, the Appellate Court found no abuse of discretion and affirmed the Trial Court. Lambert v. Coonrod, 2012 IL App (4th) 110518 (4th Dist. Mar. 5, 2012).


TORT LAW: FORESEEABILITY: Commuter stepped onto railroad tracks at busy commuter station and was struck by a fast-moving train. The collision propelled Commuter’s lifeless body over 100 feet to the commuter platform, where it struck and injured Plaintiff. The question on appeal was whether Commuter owed a duty of care to Plaintiff, such that she could sue Commuter’s estate for the injuries she sustained. When determining whether a duty of care exists, an Illinois court will consider the reasonable foreseeability that the defendant’s conduct may injure another person. The court found that Commuter could reasonably have foreseen that his negligent conduct in the active train station would cause injury to someone standing in the passenger waiting area. Accordingly, Commuter did owe a duty of care to the bystanders on the commuter platform. Zokhrabov v. Park, 2011 IL App (1st) 102672 (1st Dist., Dec. 23, 2011).


NO DUTY TO DEFEND GENERAL CONTRACTOR BASED UPON CERTIFICATE: General contractor sought declaration that subcontractor’s insurer had a duty to defend general contractor in personal injury action. Insurer claimed general contractor was not named as an additional insured under the policy.  General contractor relied on a certificate of insurance issued by insurer which listed general contractor as the “certificate holder”.  The court found no coverage for general contractor, as (1) the certificate specifically referred to the policy and expressly disclaimed any coverage other than that contained in the policy itself and (2) the general contractor was listed as a “certificate holder”, not an “additional insured”, on the certificate.  Owners Ins. Co. v. Seamless Gutter Corp., 2011 IL App (1st) 082924-B (1st Dist. Nov. 14, 2011)


ANSWER TO QUIZ: Defendants win. Grant of summary judgment in favor of Defendants affirmed. In Illinois, liability may arise if: (1) One or more defendants is directly responsible for the substance on the floor; or, (2) Defendants had actual or constructive notice of the substance on the floor. Here, Plaintiff failed to any submit facts connecting even one Defendant to the substance on the floor, or that any of the Defendants had notice.  Ishoo v. General Growth Properties, 2012 IL App (1st) 110919 (1st Dist. Mar. 16, 2012)

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