November 2011 Case Notes & Comments

“Heap high the board with plenteous cheer and gather to the feast, and toast the sturdy Pilgrim band whose courage never ceased.” ~ Alice W. Brotherton

MONTHLY QUIZ: Contact sports exception provides that sports participants are not liable for injuries to fellow participants caused by ordinary negligence, only for intentional or willful and wanton conduct. During informal summer softball league playoff game, Batter hits ball that is fielded and thrown to Infielder. To make the play, Infielder reaches to get ball and keeps his foot on the base. Trying to avoid the out, Batter collides with Infielder and causes injuries. Infielder sues League that set up and designed field, arguing that it was not compliant with the rules, was unreasonably dangerous and caused the collision. Does the contact sports exception also apply to non-participant and organizational defendants, such as the League? If yes, does it apply to the acts of design and set up a field? You be the judge.  (Answer below)

 

NEGLIGENCE LAW / DUTY: Defendants operated long distance and commuter trains on same track. There were no signals or signs to indicate that long-distance trains passed through suburban commuter stations without stopping. Due to delay, long-distance train approached station at the same time the commuter train normally arrived. Foliage obstructed Commuter’s ability to see the train until he was on the platform. Commuter allegedly believed approaching train was slower commuter train that would stop, due to its similarity in size and shape, the time of arrival and inclement weather. Passing through station at 70 mph, train struck and killed Commuter while he was crossing the tracks. On appeal, Commuter’s Estate argued that it was foreseeable that Commuter would be distracted from the open and obvious dangers of the train due to foliage, weather and lack of warnings. HELD: Defendants owed no duty to warn Commuter since dangers of stepping in front of a moving train are open and obvious, regardless of the kind of train. Further, no evidence found that weather or foliage distracted Commuter such that he forgot about the approaching train. Park v. N.E. Regional Commuter R.R. Corp., et al, 2011 IL App (1st) 101283 (1st Dist. Nov. 4, 2011)COMPARE: Eskew v. Burlington Northern & Santa Fe Railway Co. 2011 IL App (1st) 093450 (1st Dist. Sept. 30, 2011)(HELD: Railway owed Man who presented himself to the platform for travel the same duty of care as one its passengers, the “highest duty of care.”)

 

MOTOR VEHICLE EXCLUSION: Rider injured while test-driving Insured’s motorcycle when brake pedal Insured had just welded snapped off. Insured sought coverage under homeowner’s Policy. Insurer filed action asserting motor vehicle exclusion, which applied to occurrences “arising out of the ownership, maintenance, use... entrusting, loading... of any motor vehicle” but not “motor vehicle[s] in dead storage.” Held: No coverage owed. Exclusion applied since motorcycle fit the definition of “motor vehicle” and dead storage exception did not, since motorcycle was running, not “dead”, at the time of the incident. Allstate v. Mahoney, 2011 IL App (2d) 101279 (2nd Dist. Nov. 1, 2011)

 

COVERAGE / NEGLIGENT MISREPRESENTATION: Buyers suffered extensive water infiltration and flooding in recently purchased home. Court held that Insurer owed a duty to defend Insureds in lawsuit seeking rescission of real estate contract, or compensatory damages. Allegations of negligent misrepresentation in conjunction with a home sale can be an “occurrence” resulting in “property damage” or “bodily injury”, where Insured did not expect nor intend the injury. USAA Cas. Ins. Co. v. McInerney, 2011 IL App(2d) 100970 (2nd Dist. Oct.31, 2011)

 

NEGLIGENCE / WORKERS’ COMPENSATION LAW: Plaintiff-Temporary Employee of Company No. 1 was assigned to work at Company No. 2’s manufacturing plant and was injured. Plaintiff settled worker’s compensation claim and executed a release for all claims that arose out of the date of injury. In light of terms of settlement agreement and despite claim that Company No. 1 never registered with State as an "employee leasing company" under the Employee Leasing Company Act, exclusive remedy provision of Workers’ Compensation Act still barred Plaintiff’s negligence claims. Case dismissed. Mason v. John Boos & Co. 2011 IL App (5th) 100399 (5th Dist. Oct. 28, 2011).

 

LEF WINS SUMMARY JUDGMENT – DEPOSITORS’ CLAIMS AGAINST WAREHOUSE OPERATOR BARRED:  In October 2011, LEF obtained summary judgment on all counts on the claims brought against its client, a Warehouse operator, by some of its Depositors.  Depositors alleged that Warehouse conspired with thieves to remove Depositors’ property from the premises, failed to exercise control over warehouse, and/or breached the warehousing contract.  LEF moved for summary judgment arguing that, under the warehousing agreement’s limitations period, Depositors’ claims were barred as a matter of law.  Depositors resisted, arguing that the limitations period was inapplicable because the contract required written notice of loss, and Warehouse’s conduct frustrated Depositors’ investigation of the loss.  The Circuit Court of Lynn County, Iowa sided with the Warehouse, granting it summary judgment on all counts. 

 

LEF AWARDED FOR PRO BONO SERVICE: Congratulations to Heath Sherman, who was presented the Award for Excellence in Pro Bono Service by the Judges of the United States District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association for outstanding commitment to and excellence in representing a pro bono client before the United States District Court.

 

ANSWER TO QUIZ: In this case, the contact sports exception did not apply to the League. One reason for the exception is that physical contact between players is an inherent part of sport and Illinois courts do not want to discourage "vigorous participation.” Here, imposing liability on the League for ordinary negligence in properly setting up the field would not alter the softball game, nor discourage vigorous participation. Gvillo v. DeCamp Junction, 2011 IL App (5th) 100262.CONTRAST: Karas v. Strevell, 227 Ill. 2d 440 (2008)(Contact sports exception applied to league, opposing team, and referees’ association who allegedly failed to enforce or instruct players on the rules)

Past Publications

2024

December 2024
November 2024
September 2024
August 2024
June 2024
May 2024
March 2024
January 2024

2023

December 2023
October 2023
September 2023
August 2023
May 2023
March 2023
February 2023

2022

December 2022
October 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