March 2013 Case Notes & Comments

“There's one good thing about snow, it makes your lawn
look as nice as your neighbor's.” ~ Clyde Moore

MONTHLY QUIZ: Owner takes Dog, who has no prior history of biting or chasing, to veterinary clinic (Clinic) for surgery. While being walked prior to surgery on a Clinic leash, Dog escapes from Clinic Assistant. While Assistant is trying to catch the animal, Dog bites Child, who is waiting for the school bus. Child’s parents sue Owner and Clinic under the Illinois Animal Control Act (510 ILCS 5/1et seq). The Act provides that “[i]f a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person.” The Act defines “owner” as “any person having a right of property in a dog…, or who keeps or harbors a dog or other animal, or who has it in his care, or acts as its custodian…” Is Owner subject to liability under the Act for Child’s injury solely because of her ownership of Dog? You be the judge.  (Answer below)


LEF WINS TRIAL: Congratulations to Stephen B. Frew and John J. McInerney, who prevailed on behalf of the City of Chicago in a lengthy jury trial. Plaintiffs claimed that a fire and negligent demolition caused about $3 million in property damage to adjacent property and businesses. Great America Ins. Co., et al. v. Phillips, et al., (06 L 12285, consolidated with 07 L 11991 and 07 L 3598) Circuit Court of Cook County, Illinois.


PREMISES LIABILITY / NOTICE: While driving on Municipality road, Plaintiff’s truck “abruptly shook, flipped, and rolled into a ditch,” injuring Plaintiff. Upon investigation of the accident site, Plaintiff discovered that roadway was “spongy,” and that ripples in the road were evident over 50-75 feet of roadway. Plaintiff and his Sons photographed the road on the day of and one day after the accident. Plaintiff sued Municipality, arguing that Municipality should have known of the roadway’s dangerous condition, but allowed the roadway to remain in unsafe condition, thereby causing Plaintiff’s injuries. Under section 3-102(a) of the Illinois Tort Immunity Act, a public entity is charged with constructive notice when the condition has existed for such a length of time or is so conspicuous or plainly visible that the public entity should have known of its existence by exercising reasonable care and diligence. At trial, Municipality’s Engineer testified that he had driven over the subject roadway two days prior to accident and observed nothing unusual. Despite testimony of Plaintiff and Sons and admitted photographs, Trial Court directed a verdict in favor of Municipality because no evidence showed that Municipality knew or should have known about the unsafe condition of the roadway. Plaintiff appealed, but Appellate Court affirmed ruling that Plaintiff failed to meet his burden of proving Municipality’s actual or constructive notice of the roadway defect. Perfetti v. Marion County, Illinois, 2013 IL App (5th) 110489 (Mar 7, 2013).


INSURANCE COVERAGE: Plaintiff files a tort lawsuit against Insured Defendant. Insurer provides a defense to Insured Defendant subject to a reservation of rights. Plaintiff then files a second lawsuit, this time a declaratory action, seeking a declaration that Insurer has a duty to defend and indemnify Insured Defendant in the tort suit. Insurer moves to dismiss the declaratory action, arguing that no justiciable controversy exists between the Plaintiff and Insurer, so long as Insurer continues to defend the tort suit. Trial court agrees with Insurer and dismisses the declaratory action. Plaintiff appeals. Appellate Court affirms, finding no support for Plaintiff’s position that an injured plaintiff may seek a declaratory judgment when an insurer defends a tort defendant subject to a reservation of rights. Rather, when an insurer provides a defense, and does not file a declaratory action contesting its obligation to defend, there is no coverage issue ripe for determination, and dismissal of the declaratory action is proper. Byer Clinic and Chiropractic, LTD. v. State Farm Fire and Casualty Company, 2013 IL App (1st) 113038 (Mar. 12, 2013).


WORKERS’ COMPENSATION / PSYCHOLOGIAL INJURIES: Bus driver sought benefits from Chicago Transit Authority (CTA) claiming she sustained psychological injuries that prevent her from working after striking and killing a pedestrian while driving a bus. CTA does not dispute psychological injuries but claims they are not compensable, since the psychological injury was not immediately apparent and claimant did not immediately seek professional help. While it agrees that psychological injuries that appear to have arisen gradually are not compensable, the Court finds for the bus driver, ruling that a claimant need only prove that the emotional shock causing the injury was sudden, not that the psychological injury was immediately apparent. Chicago Transit Authority v. Illinois Workers’ Compensation Commission, 2013 IL App (1st) 120253WC (Mar. 11, 2013).


ANSWER TO QUIZ: No. Plaintiff loses, Owner wins. Though Child’s parents contended that, as the legal owner of Dog, Owner was liable under the Act, Appellate Court held that, while the Act does not require an injured party to prove that the ‘owner’ is negligent, pet owners are not strictly liable under the Act when they do not have custody and control over the dog at the time of the injury. Such a rule would amount to liability as a pure penalty for dog ownership and not a factual or reasonable basis for liability. Hayes v. Adams, 2013 IL App (2d) 120681 (Feb. 28, 2013).