October 2012 Case Notes & Comments

A wise person will always find a way. ~ Tanzanian Proverb

MONTHLY QUIZ: Three employees of an Italian beef and pasta Restaurant get into a verbal altercation while at work over which employee gets to work as “the … fry cook.” Consequently, Owner sends Employee No. 3 home to “cool off.” The next day, Employee No. 3 returns to Restaurant and shoots Employee No. 1 and Employee No. 2 while they are working. Employee No. 2 dies and his Estate sues for negligent hiring of Employee No. 3. Estate argues that the shooting is employment-related and therefore barred by section 5(a), the exclusive remedy provision of the Illinois Workers’ Compensation Act. Estate argues that the shooting was intentional, not “accidental” and therefore, the claims against Restaurant for negligent hiring should be allowed. Who is right? You be the judge. (Answer below)


PREMISES LIABILITY - FIREMEN’S RULE DOES NOT APPLY TO NON-EMERGENCY CALLS: While responding to a non-emergency call at property Owner’s building, Fireman fell through an opening in the warehouse floor. Fireman sued Owner for an alleged negligent failure to exercise reasonable care in the control of his building. Owner filed summary judgment motion, arguing that based upon the fireman’s rule, a common-law doctrine that limits the extent to which firefighters may recover for injuries they incur when entering onto private property in the discharge of their duties, Owner did not owe Fireman a duty of care. Owner also argued that proximate cause was lacking since no one witnessed Fireman fall and Fireman could not recall how or why he fell. In reversing the grant of summary judgment, the Appellate Court held that firemen’s rule did not bar an action for the injuries suffered by a firefighter when responding to a non-emergency call. Further, Appellate Court noted that section 9f of the Fire Investigation Act (425 ILCS 25/9f (West 2006) imposes a duty of reasonable care on landowners in the maintenance of their premises, which did not exist at common-law. As to proximate cause, the Court noted that even though there were no direct witnesses, Fireman had sufficiently raised an issue of fact through the testimony of preoccurrence and postoccurrence witnesses who were at the scene, along with other circumstantial evidence of causation. Olson v. Williams All Seasons Co., 2012 IL App (2d) 110818 (Aug. 9, 2012)


INSURANCE COVERAGE & INSURABLE INTEREST - ISSUE OF FIRST IMPRESSION:Insured-Building Owners entered into a demolition contract for Building, obtained demolition permits and consulted an architect to build a new structure. However, Insureds testified in their depositions that, though they had entered into a contract, they were still considering whether to sell the Building “as-is,” knock it down and build a new luxury home, or to renovate the existing Building. Six months after execution of the contract but prior to any actual demolition, a fire ensued, causing extensive smoke and water damage to the Building. Though it estimated about $60,000 in damages,Insurer denied liability claiming that the Building had no actual value since it was slated for demolition. Insureds sued for breach of contract and an alleged violation of section 155 of the Insurance Code (215 ILCS 5/155), for unreasonable and vexatious delay in settling Insured’s claim. Insurer filed affirmative defenses and a motion for summary, arguing that the Insureds lacked an insurable interest because they intended to demolish the Building prior to the fire, and therefore, the fire damages did not cause them to suffer any economic loss. In reversing the trial court, the Appellate Court held that an “insurable interest should be determined at the moment of loss and … not ... by speculating about future, uncertain events,” such as a possible demolition. Since no actual physical destruction of the Insured’s Building had occurred, the Court found that Insured still had an insurable interest in the Building at the time of the fire.  Murphy v. State Farm Fire & Casualty, 2012 IL App (1st) 112143 (Sep. 28, 2012)


COMMUNICATIONS DECENCY ACT DOES NOT PROVIDE GENERAL TORT IMMUNITY TO EMPLOYER IN EMPLOYEE CIVIL ACTION: Shortly after their introduction, Employee began sending Flight Attendant, a fellow employee, threatening and harassing e-mails, text messages, phone calls and voicemails using Airline’s computer, internet and telephone facilities. Even after being reported, Employee’s conduct did not stop. Flight Attendant sued Airline for negligent supervision of Employee. Airline prevailed on a motion for partial summary judgment as to the e-mails and text messaging claims, arguing that since Airline provided its employees with interactive computer services (“ICS”), such as internet service and email, it was an “information content provider” within the meaning of Section 230 of the Communications Decency Act (CDA)(47 U.S.C. § 230 (2000)), and therefore immune from suit. The issue of Airline’s liability for Employee’s harassing telephone calls initially remained pending. The Appellate Court agreed that since it provided an information system that Employee and multiple others used to access the Internet, Airline qualified as a provider of ICS. However, the court also held that the CDA did not grant blanket immunity to employers from any civil cause of action - it merely provided that employers like Airline would not be “be treated as the publisher or speaker of any information provided by” their employees for the purposes of certain claims, such as defamation, obscenity, or copyright infringement. Lansing v. Southwest Airlines, 2012 IL App (1st) 101164 (Jun. 8, 2012)  


ANSWER TO QUIZ: The Restaurant is correct. The exclusive remedy provision of the Workers’ Compensation Act bars Estate’s claims. Though Estate claimed that the Act did not apply since the shooting was intentional, the Court held that “injuries inflicted intentionally upon an employee by a co-employee …. are … accidental from the employer’s point of view … where the employer did not direct or expressly authorize the coemployee to commit the assault.”  Further, while Estate argued that a question of fact existed over whether the verbal altercation arose out of employment or was “a purely personal dispute”, the Court advised that “purely personal dispute” is one that is “completely unrelated to the employer’s work.” Rodriguez v. Frankie’s Beef/Pasta & Catering, 2012 IL App (1st) 113155 (Aug. 14, 2012)