November 2013 Case Notes & Comments

“Move forward, for life wasn’t meant to be traveled backwards” ~ Anonymous

MONTHLY QUIZ:  Prior to moving in, Tenant performs a walk-through of the property and asks Landlord about the driveway, which is on an incline and includes several broken pieces of asphalt. Landlord states he will either “patch [it] or replace it.” The lease is silent as to the driveway. Tenant claims that she requested driveway repairs “at least five [more] times” over the ensuing year. Tenant falls when a piece of the driveway about the size of a football breaks under Tenant’s foot. Tenant sues, alleging Landlord is negligent for failing to warn Tenant about the condition of the driveway, failing to repair the driveway, and permitting the driveway to exist in a “state of disrepair.” Landlord moves for summary judgment, asserting a lack of duty and arguing that the condition was open and obvious and the broken piece of asphalt “de minimus.” Tenant responds that Landlord was in control of the driveway, since he made a promise to repair the driveway, and that Landlord voluntarily undertook a duty to repair the driveway. Was Landlord bound by his alleged oral promise to repair the driveway? Should the yet unbroken driveway piece that broke be considered open and obvious if the driveway is in a poor overall condition? You be the judge. (Answer below).


TENANT OWES NO DUTY TO PROTECT CUSTOMER FROM INJURY ON SIDEWALK OUTSIDE STORE: Plaintiff was standing on the sidewalk outside a storefront owned by Owner-Landlord and leased by Tenant. Driver sped into a parking space facing the store, but then accidentally pressed the accelerator rather than the brake, causing the car to jump the curb and injure Plaintiff and her husband. Trial Court granted Tenant’s summary judgment motion. In affirming the dismissal of Tenant, the Appellate Court reasoned that although Tenant owed a general duty to provide a reasonably safe means of ingress to and egress from the store, such duty did not include the common area which, by virtue of the lease and the facts, was owned, maintained, and exclusively controlled by Owner. Held: the duty to protect Plaintiff from the risk of being struck by an out-of-control vehicle while Plaintiff was standing on a common area did not extend to Tenant.Hougan v. Ulta Salon Cosmetics and Fragrance, Inc., 2013 IL App (2nd) 130270 (Nov. 18, 2013) 


INCIDENT REPORTS WERE NOT PRIVILEGED, MUST BE DISCLOSED IN DISCOVERY: Defendant-Hotel withheld four incident reports that Hotel’s employees prepared and forwarded to Hotel’s risk management group when hotel guests reported an accident in connection with their stay. Hotel asserted that the attorney-client and work-product privileges protected the incident reports since they were prepared - pursuant to corporate policy - in anticipation of litigation and to aid in possible future litigation. In determining that reports were not protected by the attorney-client privilege, the Court indicated that while the reports were forwarded to Hotel’s risk management group, Hotel did not provide evidence that the reports were forwarded for the purpose of seeking legal advice, that the reports were submitted in confidence, and that the reports would be kept confidential. Hotel failed to provide the Court with evidence tending to show that Hotel’s attorneys directed Hotel’s employees to prepare the reports, or that the information contained in the reports conveyed an attorney’s thought processes and mental impressions. Nelson v. Intercontinental Hotels Group Operating Corp. et al, 1:12-cv-08485 (N.Dist.Ill., Nov. 1, 2013)


INSURANCE LAW - “SUIT” NOT REQUIRED TO TRIGGER INDEMNITY OBLIGATION:Insured General Contractor built a grain storage facility for Customer. When construction was 99% complete, several trusses in the facility sunk, causing the concrete walls in the center of the facility to bow outward. Insurer denied General Contractor’s claim on several policy grounds. Insured General Contractor settled with Customer by agreeing to pay for property and consequential damages, and then sought indemnification from Insurer.  As a result, no pleadings were ever filed by Customer against Insured in any forum. In the ensuing declaratory action, Insurer moved to dismiss Insured General Contractor’s claim for indemnification since no “suit” (i.e. which the Policy defined as “a civil proceeding,” “arbitration” or “other alternative dispute resolution”) was ever filed against Insured. In reversing the Trial Court’s dismissal of Insured’s suit, Appellate Court stated that the only reference to “suit” appeared in the sections of the policy referring to Insurer’s duty to defend. Thus, without that limiting language in the indemnification provision, the Policy did not require the filing of a “suit” before Insured could seek indemnification for the settlement it paid.  Selective Insurance Company of South Carolina v. Cherrytree Companies, Inc., 2013 IL App (3d) 120959 (Nov. 04, 2013)


ANSWER TO QUIZ:  Landlord wins.  Construing facts in favor of the Tenant, the Court must assume that Landlord made such a promise and that the driveway was in a dangerous condition. However, Tenant admittedly knew about the driveway’s condition and continued to use it. Given the overall poor condition of the driveway, which was open, obvious and known, Tenant was under an obligation to use ordinary perception, intelligence, and reasonable care for her own safety – which would have led a reasonable person to understand and appreciate that walking on a driveway with broken asphalt as an indication the driveway may continue to deteriorate and give way, resulting in a fall. Though Landlord may have promised to repair the driveway, Tenant was aware of the driveway’s condition and continued to walk on it. Case dismissed. Nida v. Spurgeon, 2013 IL App (4th) 130136 (Oct. 30, 2013)