October 2016 Case Notes & Comments

"Hold on, man. We don't go anywhere with "scary," "spooky," "haunted," or "forbidden" in the title." ~ Shaggy, from Scooby-Doo

MONTHLY QUIZ: Plaintiff injures his ankle when he steps in a hole in the grass parkway owned by City. Plaintiff testifies that while he had regularly walked in the area, he never noticed the hole. Homeowner, who had been living near the alleged hole for almost two decades, also testifies that she never noticed any hole. City moves for summary judgment pursuant to Section 3-102(a) of the Tort Immunity Act. Section 3-102 states that a local public entity “shall not be liable for injury unless it … has actual or constructive notice of the … [the alleged] condition … [and has] reasonably adequate time … to have taken measures to remedy or protect against such condition.” 745 ILCS 10/3-102(a). In response to City’s motion, Plaintiff offers an affidavit from Expert Witness, who opines that the defect existed for at least 3 years, was conspicuous, and likely the result of the decomposition of a tree previously removed from the premises. Is Expert’s testimony sufficient to create a question of fact as to the City’s constructive notice? Is the City entitled to dismissal?  You be the judge. (Answer below)

SIGNIFICANT CHANGES IN SNOW REMOVAL LIABILITY: The Snow Removal Service Liability Limitation Act (P.A.099-0889) changes the relationship between snow removal contractors (“service providers”) and those who contract with them (“service receivers”).  In the past, snow removal contracts shifted liability one way or the other - typically requiring the service provider to assume the risk - and enabled a property owner/operator to contract away its liability and defense costs for injuries related to winter weather problems on property.  This new Act renders these absolute liability-shifting provisions “void”.  Specifically, the Act voids snow removal / ice control services contracts that require the service provider to indemnify, defend, or hold harmless the service receiver from damages resulting from the acts or omissions of the service receiver.  Likewise, the Act voids those contracts that require the service receiver to indemnify, defend, or hold harmless the service provider from damages resulting from the acts or omissions of the service provider.  The Act applies to snow removal and ice control services contracts entered into on or after 8/25/16, but does not apply to contracts concerning public roads, public bodies, and public utilities.  EDITORS NOTE: This Act does not prohibit additional insured contract requirements. The Act is similar to the Construction Contract Indemnification for Negligence Act, which voids construction contract provisions purporting to indemnify or hold harmless another person from their own negligence. Consultation with counsel familiar with this Act is imperative to ensure that contracts entered into after the Act’s effective date are not rendered void.

WORKERS’ COMPENSATION / WAGE-LOSS DIFFERENTIAL AND PERMANENT TOTAL DISABILITY BENEFITS NOT MUTUALLY EXCLUSION: Employee injured his lower back while working for Employer #1 and was paid wage-loss differential benefits for 135 weeks since Employee could not return to his usual occupation earning his pre-injury wages. Employee suffered a subsequent injury to his cervical spine while working for a different Employer (Employer #2) and began collecting permanent total disability benefits. Thereafter, Employer #1 terminated the wage-loss differential benefits in connection with the first accident.  Employee sought reinstate wage-loss differential benefits pursuant to section 8(d)(1) of the Workers’ Compensation Act. The Appellate Court held that there was nothing in the Act that prohibited an Employee from receiving both wage-loss differential benefits and subsequent permanent total disability benefits simultaneously and indefinitely. The court opined that it was up to the legislature to clarify through subsequent legislation whether the two benefits were mutually exclusive. HELD: A petitioner’s entitlement to wage-loss differential benefits do not terminate when the petitioner becomes totally disabled as a result of a later work related injury. Chlada v. Illinois Workers’ Comp. Comm’n., 2016 IL App (1st) 150122WC (July 8, 2016).

DEAD-MAN’S ACT PROVIDES SUMMARY JUDGMENT FOR DECEASED DRIVER: Plaintiff sued following a rear-end collision caused by a motor vehicle being operated by Driver. Driver admitted in her answer that she had an unobstructed view and the allegations regarding the time and location of the accident, but claimed lack of knowledge as to whether Plaintiff's vehicle was stopped at the time of the collision. There were no other witnesses. Driver died during the lawsuit and a Special Representative of Driver’s estate moved for summary judgment, arguing that Plaintiff could not establish Driver’s negligence without the “stopped at a stoplight” testimony, which was inadmissible under the Dead-Man’s Act (735 ILCS 5/8-201). The Act provides that, in a suit in which one party is “the representative of a deceased person […] no adverse party […] shall be allowed to testify […] to any event which took place in the presence of the deceased […].”  Without disputing the Act’s application, Plaintiff challenged summary judgment and argued that negligence could be inferred from Driver’s admissions regarding her path of travel and unobstructed view. The Trial Court disagreed and entered summary judgment for Driver. The Appellate Court affirmed, noting that had Driver admitted Plaintiff was stopped, Plaintiff would have raised a “prima facie case of negligence on the part of … [D]river,” and denial of summary judgment would have been appropriate. However, Driver’s pleaded admissions did not establish liability and left open the possibility that the accident occurred because Plaintiff stopped abruptly, or because of road conditions. Accordingly, it would have been improper conjecture to infer negligence based on Driver’s admissions. Peacock v. Waldeck, 2016 IL App (2d) 151043 (Aug. 8, 2016).

ANSWER TO QUIZ: City is entitled to dismissal. Though Plaintiff’s expert witness stated in his affidavit that the hole was conspicuous and had existed for at least three years, the value of that testimony was undercut by Plaintiff and Homeowner’s testimony, who both testified that they never noticed the hole. See e.g. Finley v. Mercer County, 172 Ill. App. 3d 30, 33-34 (1988) (the plaintiffs could not establish for the purpose of avoiding summary judgment that the defect existed for a sufficient time to charge the county with constructive notice of the defect because the plaintiffs’ testimony undercut the basic theory of their case). Further, while length of time and the conspicuity of that condition are two of the factors a court considers in determining constructive notice, lapse of time, in and of itself, can be insufficient reason to impute constructive notice to a public entity under certain circumstances. Barr v. Frausto, 2016 IL App (3rd) 150014 (Oct. 13, 2016).


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