General Liability Defense : Chicago General Liability Lawyer & Attorney : Mark McAndrew : Hennessy & Roach Law Firm : Civil Defense Litigation, Damages : Illinois, Wisconsin, Midwest

The 5^th District Illinois Appellate Court has reversed a ruling by Judge Brad Bleyer (William County.) Plaintiff, Gene Peters, was injured on July 25, 2006, while attending a summer football camp sponsored by the Herrin Community School District (www.herrinunit.org) at its football facility. Peters was injured when he was running from the locker room to the practice field. He tripped over a bumper used at the shot-put area where the coaches instructed the campers to run. The complaint alleges the bumper was covered in weeds.

The defendants filed a motion to dismiss alleging immunity under Section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act. The trial court dismissed with prejudice the ordinary negligence claims and dismissed all the willful wanton claims without prejudice and allowed the plaintiff to replead the willful and wanton counts. The plaintiff filed an amended complaint alleging that the football field where the plaintiff was injured was being used for educational purposes. The defendants filed a motion to dismiss the amended complaint and it was granted based upon Section 3-106.

Section 3-106 provides that “Neither a local public entity nor a public employee is liable for an injury where the liability is based upon the existence of a condition of any public property intended or permitted to be used for recreational purposes . . . unless such local public entity or public employee is guilty of willful and wanton conduct proximately causing such injury.”

On appeal the plaintiff argued that Section did not apply because the immunity applies to public property that is used for recreational purposes and the complaint alleged that the football field was used for educational purposes.

The appeals court agreed: “We agree with plaintiff that because the property was located on school grounds and was being used by the school district for a summer camp, there is, at a minimum, an inference that the property in question was being used for educational purposes . . .” The court reversed the prior decision and remanded for further proceedings.

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 On April 22, 2008, Jose Padilla’s three-year old son choked to death after he became entangled in the metal-beaded chain cord of some mini-blinds in his home. The plaintiff, Padilla, sued the manufacturer and two trade associations; the Window Covering Manufacturers Association (WCMA) and the Window Covering Safety Council (WCSC).

The plaintiff’s complaint cited section 324A of the Restatement (Second) of Torts and alleged that liability extended to WMCA and WCSC because the trade associations voluntarily undertook a duty to warn about the dangers of strangulation after providing retrofit kits and instructions to eliminate the choking hazard.

The two trade associations argued Illinois courts have declined to impose liability on trade associations under the theory of voluntary undertaking. They further argued that courts have found no duty where trade associations are not involved in the manufacturing process or do not exercise a degree of control over association members. (For example, courts have found no duty when trade associations issue advisory, non-mandatory guidelines for their members. Bailey v. Edward Hines Lumber Co., 719 N.E.2d 178, 308 Ill. App. 3d 58 (1999). )

A federal district judge denied the defendants’ motion to dismiss, concluding that the associations MAY be liable. First there was no indication that the trade associations issued merely “non-mandatory” guidelines. Second, the facts in the case were not like the cases cited by the defendant. In those cases the issue was “control over association members,” who manufacture. Here, the issue was whether the association itself failed to safely manufacture the retrofit kits and whether the association warned about their risks. Thus, those cases did not preclude the defendants’ liability.

The Court pointed out that going forward the defendants are free to raise more issues after discovery. The defendants can try to prove that their undertaking was narrower in scope and did not have a broad effect on consumers. Also, they can show that Illinois does not recognize a common law duty to provide post sale warnings or to recall products after they have been sold.  

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The Illinois Appellate Court has reversed a ruling by DuPage County Circuit Judge Stephen Culliton.

The plaintiff, Michael Weisburg, an employee of Chicago Acceleration, was assigned to provide athletic training services to the Chicago Steel, an amateur hockey team. On October 24, 2004, the plaintiff entered the bench area to refill water bottles and was struck in the right eye by a hockey puck. He suffered a fracture below his right eye and retinal tearing, which resulted in permanent vision loss.

Count 1 of the complaint alleged that the team committed negligence by failing to prevent players from shooting pucks toward the bench area. Count 2 alleged that Cody Lampl (a player on the team) committed negligence by engaging in “sniping” or shooting pucks at water bottles on the bench. Counts 3 and 4 alleged that the defendants engaged in willful and wanton conduct.

In June 2008, the trial court granted the defendant’s joint motion to dismiss the negligence claims, finding that the claims were barred by the contact sports exception. On appeal the plaintiff argued that the exception was not applicable in his case because he was not a participant in a contact sport.

The appeals court ruled that the plaintiff, as a trainer employed by an independent company and who was not otherwise engaging in a conduct inherent in the sport of hockey, did not bear a significant relationship to either the sport of hockey or the participants to the extent that the contact sports exception be invoked as a matter of policy. As such the case was remanded back to the Circuit Court.

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A couple of years ago in Illinois, a married couple was riding together on their motorcycle along a stretch of road that bordered densely wooded property owned by the defendant. Adjacent to this property were a number of rotted trees. Unfortunately a large tree on the defendant’s property fell onto the roadway and struck the motorcycle, killing the wife and seriously injuring the husband who was driving.

The plaintiff filed suit with negligence, wrongful death and survival counts in the complaint. The defendant filed a motion to dismiss, citing Section 363 of the Restatement (Second) of Torts, which states that a possessor of land is not liable for injuries caused to others by a natural condition of the land.

However, Section 363 also states that a possessor of land in an urban area is subject to liability to people using a public highway for injuries resulting from the failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near a highway.

The plaintiff argued that the defendant had a duty to maintain the trees bordering the highway and there should be not be different rules for urban versus rural areas without considering all the facts. The trial court granted the motion to dismiss.

On appeal the plaintiff argued that the defendant had actual notice of the defective trees and the courts should not use such strict adherence to the rule of section 363. The appeals court reversed. In doing so it looked at multiple decisions from other jurisdictions. It found that the parties should be allowed to proceed with discovery to obtain more information regarding various factors such as the size and type of the road, the traffic patterns of the road, the condition of the tree and the burden of inspecting and removing the danger.

So, if you have a client that owns forest land that abuts a main roadway it would be in their interest to inspect their property especially where the road is a regularly traveled stretch of road.

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A case has recently gone before the Vermont Supreme Court about the value of a dog to its owner. The plaintiffs are asking the court to allow dog owners to sue for emotional distress and loss of companionship similar to when parents lose children. Their dog was shot and killed when he wandered into the defendants yard. The defendant claims he fired an air pellet rifle to scare the dog off the lawn of his home. He pleaded guilty to a misdemeanor and received a year of probation, 100 hours of community service and had to pay 4,000 in restitution to the plaintiffs.

The pet owners filed a civil suit claiming that the value of the case is worth more than the cost of adopting him from the animal shelter, and the cost of the resulting veterinary bill and cremation. Most courts across the country do not allow for the type of recovery that they are seeking. In fact, the Vermont Supreme Court recently denied a plaintiff’s request for emotional distress from the death of her cat who died from a veterinary medication error. These pet owners however, differentiate their case claiming that the defendant acted with intent and malice.

Although this is a Vermont case and not an Illinois matter, this case will be interesting to watch. The court’s ruling could affect the outcome of similar matters across the country in the future. Although I can relate to the pain that some owners may feel at the loss of a pet, it would be a huge step for the court to allow an emotional distress recovery such as this, that would put pet owners in a position that most grandparents are not when a grandchild dies.

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The Illinois Appellate Court recently gave the plaintiff another bite at the apple in a slip and fall case against Wal-Mart. In Cano v Wal-Mart stores Inc., the plaintiff claimed injury from allegedly slipping on a soapy substance at the Northlake Wal-Mart.

Wal-Mart filed a motion for summary judgment claiming it had no actual or constructive notice. In the plaintiff’s deposition she claimed that she overheard an employee tell his supervisor that he had already been told to clean up the substance. Wal-Mart addressed this claim by arguing that the statement was inadmissible hearsay and not trustworthy because of inaccuracies of the names of the employees.

The plaintiff not only failed to file a written response to the motion but did not attend the hearing on the motion. The hearing was rescheduled and the plaintiff, once again, did not attend. Circuit Judge Sheldon Harris granted the motion. Plaintiff moved for the court to reconsider but was denied. She then appealed to the Appellate Court.

In the order from the Appellate court, Justice Hoffman reversed the District Court and remanded the case back for further proceedings. The court ruled that the statement at issue constituted an admission by Wal-Mart and that the plaintiff “presented at least some evidence that Wal-Mart had actual notice of the spilled detergent prior to the slip and fall.”

Illinois courts have once again shown their propensity to give plaintiffs every opportunity to keep their case alive even when plaintiffs fail to respond or even attend briefing hearings on motions for summary judgment.

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