MONTHLY QUIZ: Over a period of several years, though not contractually required to do so, Property Manager-Defendants gratuitously remove snow and ice from premises, including Tenant’s rear staircase. Caretaker-Plaintiff, who has been cooking and cleaning for Tenant for the last five months, slips and falls on open and obvious, natural accumulation of snow. Plaintiff argues that prior removal shows that Defendants voluntarily undertook a duty. While they concede that a party voluntarily removing snow owes a duty do so in a non-negligent manner, Defendants argue that they have no continuingduty to clear Tenant’s rear staircase. Do years of prior, consistent snow removal give rise to a voluntarily assumed duty? Who is right? You be the judge. (Answer below).
PRODUCT LIABILITY - DESIGN DEFECT: Motorists injured in a roll-over accident brought a state-court products liability action against automobile Manufacturer, alleging vehicle's defective design rendered it unstable. Manufacturer removed action to federal court. At the close of discovery, Plaintiffs had not designated an expert on the subject of the vehicle’s design. The trial court concluded that the suit could not proceed without expert testimony and granted Manufacturer summary judgment. To date, the Supreme Court of Illinois has not yet considered the issue of whether expert testimony is necessary in a design-defect suit involving a complex product, such as a car, where the plaintiff declined to produce expert evidence. Dismissal affirmed. Citing several Illinois appellate court opinions, the 7th Circuit held that “expert testimony is vital in design-defect suits when aspects of a product’s design or operation are outside the scope of lay knowledge.” Show v. Ford Motor Co., --F.3d--, 2011 WL 4350043 (7th Cir. Sept. 19, 2011) COMPARE/CONTRAST:Jablonski v. Ford (below)
NEGLIGENCE - PRODUCT DESIGN: Plaintiff sues automobile Manufacturer alleging negligence in designing a product. At trial, Plaintiff presents evidence and expert testimony concerning possible alternative designs and statistics on various types of previous accidents. The Illinois Supreme clarified proper duty analysis in common law negligence action for a design defect and addressed the risk-utility test for determining duty. A manufacturer has a nondelegable duty to design a reasonably safe product. Setting out a nonexhaustive list of factors relevant to the analysis, the high Court held that the question of reasonable care is resolved by whether hazardousness could have been foreseen at the time of manufacture and whether the risks inherent in a product design outweigh the benefit or utility of the product (i.e. the same test used in strict liability cases for determining whether a product is unreasonably dangerous). Manufacturer presented evidence that it complied with governmental and industry standards in place at the time of manufacture, which, though not dispositive, were factors considered in determining that the evidence was insufficient to go to the jury on the issue of negligent design. Jablonski v. Ford Motor Co., 2011 WL 4391179, 2011 IL 110096 (Sept. 22, 2011)
SUBROGATION / WORKERS’ COMPENSATION: Driver rented car from Plaintiff-Rental Agency in Missouri and while on business trip in Kentucky, was involved in collision. Coworker-Passengers were injured in the collision and filed claims, which Plaintiff paid. Plaintiff then sued Driver for negligence and breach of the rental Contract, by which Driver was to indemnify and hold Plaintiff harmless for any losses arising out of the use of the car, including 3rd Party claims. Driver argued Plaintiff’s claimed rights to repayment were derivative of Coworker-Passengers’ claims and that the exclusivity provision of the Workers’ Compensation Act (“Act”) barred actions against coworkers for injuries sustained in the course of employment due to a coworker’s negligence. See 820 ILCS 305/5(a). Plaintiff argued that its claims were not derivative (i.e. were for contractual indemnification, not subrogation) and that the Act was not relevant since no employment relationship existed between Plaintiff and Coworker-Passengers, or Driver. The Appellate Court affirmed dismissal of Plaintiff’s claims on the grounds that the rental contract must be given an interpretation consistent with Illinois’ law and public policy; and, requiring Driver to repay for Coworkers’ injuries was at odds with the Act. Enterprise Leasing Company of St. Louis v. Hardin, 2011 WL 4000910, 2011 IL App (5th) 100201 (1st Dist. Sept. 8, 2011)
DIRECT ACTION AGAINST LIABILITY INSURERS: Injured Plaintiff sued out-of-state Defendant and Defendant’s liability Insurer for injuries suffered in an automobile accident in Wisconsin. Wisconsin is a minority “direct action” state, allowing a negligence plaintiff to directly sue a negligence defendant’s liability insurer, in addition to or instead of suing the defendant, so long as the policy was “delivered... or on business operations in the state.” Wisconsin courts had long held that direct action was only permissible when the policy was issued in Wisconsin or to a Wisconsin insured. The Supreme Court has now expanded the traditional reading of the statute, allowing for direct action against any liability insurer “so long as the accident or injury occurs in this state.” Any insurer can now be subject to a direct action, so long as the injury occurred in Wisconsin, regardless of whether the policy was issued in Wisconsin. Casper v. American International South Insurance Company, 800 N.W.2d 880 (Wis. July 19, 2011).
