May 2011 Case Notes & Comments

“Behold the turtle. He makes progress only when he sticks his neck out.” ~ James Bryant Conant (1893-1978)

MONTHLY QUIZ: Landlord owns a street full of potholes.  Plaintiff is a tenant who knows the street has potholes. Plaintiff’s stepson goes into the street, into the path of an oncoming vehicle.   Plaintiff runs to get him and falls in a pothole. Landlord admits that he knew people walked in the street and had concerns about child safety, but argues that he has no liability because the pothole was ‘open and obvious.’ Plaintiff argues that, despite the fact that the pothole was open and obvious, the ‘deliberate encounter’ and ‘distraction’ exceptions apply. Who wins? You be the judge. (Answer below).

 

INSURANCE LAW - USE OF MISLABELED CHEMICALS FOUND TO BE AN ‘OCCURRENCE’ CAUSING ‘PROPERTY DAMAGE’: Insured labeled, stored and shipped chemicals. In 2006, Insured mislabeled and shipped the wrong chemicals for Customer, which were ultimately used to make adhesives, so the adhesives did not work. Customer sued and Insured tendered the matter to Insurer. Insurer declined to defend or indemnify on the bases that: 1) the mislabeling of the chemicals was not an “occurrence”; and, 2) that incorporating the wrong chemical into an adhesive did not constitute “property damage.” The Policy defined “occurrence” as including “accident[s].”  The appellate court reasoned that allegations that the Insured negligently mislabeled the chemicals was an accident - and therefore, an “occurrence” under the Policy. The court found allegations that the loss of use the adhesives fell within the Policy’s definition of ‘property damage.”United Nat. Ins. Co. v. Faure Bros. Corp.,-- N.E.2d --, 2011 WL 1902126 (1st Dist. May 17, 2011)

 

TRANSPORTATION LAW - NO VOLUNTARY ASSUMPTION OF DUTY:  Plaintiff’s Employer hauled debris from construction sites. Despite the fact that Employer and Defendant had no contractual relationship, Plaintiff occasionally called Defendant “in case of emergencies, such as when ‘something was wrong with the truck.’” Plaintiff claimed that he called Defendant about his Employer’s truck, and alleged that Defendant told him that Garage would inspect his truck and later, that Garage found nothing wrong with the brakes. Plaintiff was injured when the brakes on his truck failed. Plaintiff sued on the theory that Defendant voluntarily undertook a duty to inspect and repair the brakes.  The court held that at best, Defendant voluntarily undertook a duty to ensure that Garage examined the brakes – which it did, but reportedly found nothing wrong.  Case dismissed.  Lewis v. Chica Trucking, Inc.-- N.E.2d --, 2011 WL 1227836 (1st Dist. Mar. 31, 2011)

  

TEENAGE DRINKING PARTY - PARENTS DID NOT VOLUNTARILY ASSUME DUTY:Teenage Plaintiff allegedly got drunk at party at Defendants’ house, drove away, and was killed in a single-car accident. Illinois law does not recognize social host liability for providing alcohol.  Plaintiff’s estate filed counts alleging Defendants voluntarily undertook a duty to prohibit underage drinking at their house by telling their son not to allow alcoholic beverages at his party. The Illinois Supreme Court recognized that one can voluntarily undertake a duty, but found no undertaking here, where there were no allegations that Defendants actually took affirmative acts to prohibit any underage drinking, such as personally telling Plaintiff not to drink alcohol,  attempting to confiscate alcohol, telling offenders to leave, or calling a halt to the party. Furthermore, nothing Defendants did “. . . increased the risk of harm to that person and/or created a risk of harm to others.”  Case dismissed.  Bell v. Hutsell, -- N.E.2d --, 2011 WL 1886891 (May 19, 2011). 

 

ANSWER TO QUIZ: Defendants win because neither the “deliberate encounter” nor the “distraction” exceptions applied.  Although Plaintiff was generally aware of the potholes, he had not previously noticed the pothole he actually fell into. Therefore, the “deliberate encounter” exception did not apply. Since Landlord did not cause Stepson to run into the street, the court refused to apply the “distraction exception.” Case dismissed.  Garcia v. Young,--N.E.2d--, 2011 WL 1631993 (1st Dist. Mar. 23, 2011)

Past Publications

2022

August 2022
July 2022
April 2022
March 2022
January 2022

2021

December 2021
October 2021
August 2021
July 2021
May 2021
April 2021
March 2021
January 2021

2020

December 2020
November 2020
October 2020
September 2020
August 2020
February 2020
January 2020

2019

December 2019
October 2019
September 2019
July 2019
May 2019
March 2019
February 2019
January 2019

2018

December 2018
October 2018
August 2018
June 2018
May 2018
April 2018
March 2018
February 2018

2017

December 2017
November 2017
October 2017
September 2017
August 2017
July 2017
June 2017
May 2017
March 2017
February 2017

2016

December 2016
October 2016
September 2016
August 2016
July 2016
June 2016
March 2016
January 2016

2015

December 2015
September 2015
August 2015
July 2015
June 2015
May 2015
April 2015
March 2015
February 2015
January 2015

2014

December 2014
October 2014
September 2014
July 2014
June 2014
April 2014
April 2014
March 2014
February 2014
January 2014

2013

December 2013
November 2013
October 2013
September 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
January 2013

2012

December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012

2011

December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011

2010

December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010

2009

December 2009