November 2020 Case Notes & Comments

"The best way to predict your future is to create it." ~ Abraham Lincoln

MONTHLY QUIZ: Dispatcher assigns Ambulance to pick up Patient from dialysis center. A few minutes later, on the way to the dialysis center, Ambulance Driver runs a red light, colliding with Plaintiff. Plaintiff sues Ambulance company and Driver for negligence and willful wanton conduct, for operating the vehicle without engaging the lights or siren. Ambulance and Driver move to dismiss the negligence claims, arguing that they are immune under the provisions of the Emergency Medical Services Systems Act (EMS Act) (210 ILCS 50/3.150 (West 2016), which provides immunity from liability to an ambulance and its driver arising in the "normal course of conducting their duties" while providing "non-emergency medical services." The EMS Act defines "non-emergency medical services" as "medical care, clinical observation or medical monitoring rendered to patients [whose conditions are not emergent] .... before or during transportation of such patients to or from health care facilities." Plaintiff argues that the EMS Act does not apply to the operation of an ambulance until it is actually engaged in providing services to a patient. Ambulance and Driver take the position that the EMS Act applies after the ambulance has been dispatched for non-emergency care, even if no patient is in the vehicle. Who is right?  Are Ambulance / Driver entitled to a dismissal under the EMS Act? You be the judge. (Answer below).

LEF OBTAINS SUMMARY JUDGMENT FOR MOTOR CARRIER: Howard B. Randell and Scott Wing received a favorable ruling from the United States District Court for the Northern District of Illinois granting our client's Motion for Summary Judgment. In that case, the firm represented a motor carrier which had been named as a party defendant in a lawsuit filed by a shipper for pharmaceutical product valued in excess of $500,000 that was damaged in transit. The damage to the cargo was due to a fire that resulted from the insured's use of a blowtorch to remove a placard from the trailer. Following limited discovery, we filed a Motion for Summary Judgment arguing that our motor carrier client, retained to provide domestic, inland transportation, could take the benefit of the upstream ocean waybill - specifically, a claim notification period. After briefing the issue, the Court granted our Motion for Summary Judgment and dismissed the complaint. The principal legal take away from the case, is that the motor carrier was able to benefit from the terms of an upstream transportation contract that the motor carrier was not a party to and had no privity of contract with the shipper. By looking beyond the specific terms of the motor carrier contract and considering other transit documents, we were able to turn a clear liability case into a successful defense and dismissal with no indemnity. Elco Insurance Company Limited, a/s/o Eli Lilly and Company v. Spirit Trucking Company, Case No. 18 C 6800 (N.D.Ill. Oct. 29, 2020).

MARITIME LAW - COAST GUARD NOTICE PREVIEWS POTENTIAL CHANGES TO PASSENGER VESSEL SAFETY REGULATIONS: The United States Coast Guard recently issued a public notice of its intent to propose new safety regulations applicable to all commercial and small passenger vessels operating in U.S. inland and coastal waterways. Specifically, the Coast Guard is considering regulating the implementation of written Safety Management Systems ("SMS") aboard passenger vessels. Currently voluntary for domestic passenger vessels, SMS are formal practices for the safe operation of a vessel and include the continuous assessment of safety risks and the establishment of safeguards addressing those risks and improving safety aboard vessels. While the Coast Guard has yet to issue its Advanced Notice of Proposed Rulemaking ("ANPRM") detailing and seeking public input on the proposed regulations, if formal SMS requirements are implemented, there will likely be significant legal, operational and financial implications for the domestic passenger vessel industry. LEF will continue to monitor developments in this area and update when an ANPRM is issued and the likely impacts of such regulations on commercial passenger vessel owners becomes apparent.

WORKERS' COMPENSATION - BREAK TIME AND OFF PREMISES ACCIDENTS UNRELATED TO EMPLOYMENT: Petitioner-Employee, was employed as an interactive product specialist by Respondent-Employer, a marketing company that encouraged exercise and promoted a wellness program. On two occasions while walking during her break, Respondent allegedly sustained a work injury. Petitioner alleged that on June 6, 2012, she tripped on a raised piece of concrete three blocks from work. On November 14, 2012, Petitioner reportedly twisted her ankle a half a block from work. The Arbitrator categorized Petitioner's injuries as a neutral risk that did not arise from her employment. The Commission and circuit court affirmed. The appellate court affirmed, finding that Petitioner assumed the risk as she was not on the Respondent's premises when the injuries occurred. The court characterized Petitioner's injuries as arising from "assumed risks, strictly personal and totally unrelated to the duties of employment." The reviewing court drew a distinction between risks on the premises, which Respondent could control, and off-premises risks, which Respondent could not control and were "totally unrelated to the... conditions of the employer's premises." Further, the court found that although the Respondent encouraged a wellness program, the walks were not mandatory and therefore, any risks were incidental to Petitioner's employment. Under the recent Illinois Supreme Court case, Kevin McAllister, Appellant, v. The Illinois Workers' Compensation Commission, et al., 2020 IL 124848 (IL.S.Ct. Sept. 24, 2020), the analysis of the risk stopped with whether the activity was incidental to her employment. Although the Third District Appellate Court also found Petitioner was at no greater risk than the general public, the McAllister decision removed the need for the second test. Ana Elizabeth Suits vs. The Illinois Workers' Compensation Commission, 2020 IL App (3d) 190491 (Aug. 13, 2020).  

FIRST COVID-19 WRONGFUL DEATH "TAKE HOME" LAWSUIT FILED IN ILLINOIS: Plaintiff-Daughter recently filed a wrongful death suit in Kane County, Illinois, against Aurora Packing Company (Company) alleging that her Mother died of Covid-19, which she contracted from her Father, an employee at the meat processing plant. Plaintiff alleges that her Father worked "shoulder to shoulder" on Company's processing line when the Company knew it had an outbreak of Covid-19 at its facility. Plaintiff further alleges that Company failed to warn employees of the outbreak or to adopt any preventative measures to stop the spread of the virus. Plaintiff's Father allegedly contracted the virus and her Mother became ill and died after taking care of him. The lawsuit is patterned after asbestos cases, where family members became ill from asbestos fibers workers brought home on their clothes. If successful under this theory, businesses with Covid-19 outbreaks will likely face exposure to costly lawsuits. Since Plaintiff's mother was not an employee of Company, there is no cap on liability like cases filed under the Illinois Workers' CompensationAct. Estate of Esperanza Uglade v. Aurora Packing Company, 20-L-372 (Kane County, Aug. 5, 2020).

NATURAL-ACCUMULATION DOCTRINE HELD INAPPLICABLE TO PARTY CONTRACTUALLY OBLIGATED TO REMOVE SNOW AND ICE: Plaintiff-Commuter was injured when she slipped and fell on ice on a Metra train station ramp and sued Metra, the Property Manager and the snow removal Contractor, alleging that defendants negligently failed to clear ice. As part of its written contract with Metra, Property Manager agreed to remove snow and ice, which it subcontracted to Contractor. Defendants filed summary judgment based upon the common-law natural accumulation doctrine, which can shield a defendant from liability for a failure to remove naturally occurring snow and ice. The trial court granted the motions but the First District reversed and remanded, finding a question of fact as to whether the ice formed naturally or unnaturally. More significantly, however, the appellate court also found that Property Manager and Contractor could be held liable for a failure to remove natural accumulations of snow or ice because they entered into contracts requiring snow removal. The appellate court acknowledged, however, that its emphasis on contract language to define the scope of defendants' duties was inconsistent with other Illinois cases wherein the court applied the natural-accumulation doctrine, despite a contractual undertaking. See Jordan v. The Kroger Co., 2018 IL App (1st) 180582 and McBride v. Taxman Corp., 327 Ill.App.3d 992 (1st Dist. 2002). In those cases, the court held that merely entering into a snow removal contract did not create a duty to protect third parties from natural accumulations of snow and ice. The snow-removal companies only had a duty to not negligently remove snow and ice by creating or aggravating an unnatural condition. EDITOR'S NOTE: Given the inconsistent holdings within Illinois First District cases, the issue of whether snow-removal contractors have a duty to remove natural accumulations of snow and ice may soon be taken by the Illinois Supreme Court. Michens v. CPS Chi. Parking, LLC, 2019 IL App (1st) 180156 (1st Dist. Jun. 26, 2019).

ANSWER TO QUIZ: Plaintiff wins, Ambulance and Driver lose. The Illinois Supreme Court rejected Ambulance and Driver's position, that driving to a pickup location is "'prepatory conduct that is integral to providing medical care.'" The high court reasoned that in order for immunity to apply, Ambulance and Driver would have to have been rendering non-emergency services to a patient; and, the complained of actions must be an integral part or at least bear some relation to the provision of medical care. The Supreme Court determined that Driver's actions in driving and running the red light were not integral or in any way related to providing non-emergency services to the dialysis patient. Roberto Hernandez v. Lifeline Ambulance, LLC, et al., 2020 IL 124610 (June 18, 2020). 

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