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

In March of 2007, Donna Krickl was a pedestrian in a grocery store parking lot when she was struck by a car driven by defendant Philip Arends. Mr Arends was a volunteer assistant of his daughter's Brownie Troop. He and his wife were supervising the troop's Girl Scout cookie sale outside a grocery store in Des Plaines. Mr. Arends delivered the cookies and a table and chairs to the store and parked his van in the store's lot. He promised to take the girls to lunch at the completion of the sale. The girls sold all their cookies, and Mr. Arends loaded up the table and chairs.  He then drove over to where his wife was parked, but in doing so struck a parked car, hit the plaintitt, struck a pole and then backed up and and ran over the plaintiff, trapping her under the rear tire. Krickl filed suit against Arends and the Girl Scouts. She alleged that Arends was acting as an agent for the Girls Scouts Council.www.girlscouts.org

The Girl Scouts Council filed a Motion for Summary Judgment arguing that Arends was not acting as an agent and the Circuit Court granted the motion. Plaintiff appealed. The Appellate Court affirmed after reviewing the record. In particular the court pointed out that at the time of the accident, the sale had ended, one of the girls had already been picked up and Arends was in the process of calling his wife to determine where they were going to lunch. This lunch did not further the purposes of the Council. In fact, the Council was not aware of the lunch, it was simply something the Arends had decided under their own accord. The Court ruled that even if Mr. Arends was an agent of the council, he wasn't acting within the scope of the agency when he drove his van to the post-sale lunch. Krickl v Girl Scouts, 402 Ill.App.3d 1, 930 N.E.2d 1096, 341 Ill.Dec. 582 

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On occasion I have had clients who tell me that they are in the middle of negotiations with an attorney who then files suit to protect the statute. They want to know if the appearance is needed if they are about to settle the matter. ALWAYS go in and file your appearance. You can always go explain to the Court that you are in settlement discussions and ask for an extension.

In Jacobo v Vandervere,401 Ill.App.3d 712, 930 N.E.2d 459, 341 Ill.Dec 249,  the plaintiff filed suit on June 8, 2008 and defendant was personally served on June 27th. On July 23rd, the initial court date, defendant failed to appear. A default order was entered and a prove-up was scheduled for August 6th. Defendant once again failed to appear and the court entered a default judgment of $10,219. 

On August 26th defendant filed a motion to vacate the default and on the hearing date of October 21, the trial court denied the motion. The trial court noted that the defendant's insurance carrier was aware of the pending litigation prior to both the entry of the default (July 23, 2008) and the entry of the default judgment (August 6). Furthermore the defense counsel never claimed that the defendant was not properly served or had any valid reason for ignoring the three initial court dates.

The defendant appealed arguing the penalty was too severe, forcing the plaintiff to trial would not result in hardship, and during the approximately 40 days between the original return date on the summons and the defendant's filing of her motion to vacate, the insurer was trying to settle the claim and had requested documentaion of the plaintiff's bills. The Appeals Court did not agree. They did not feel that the trial court abused its discrection and as such the ruling was affirmed.

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Plaintiffs Jackie and Doug Zerjal contracted with Defendant Bill Theisman d/b/a Sure Home Appraisal and Inspections to inspect the a home they were about to purchase from Daech & Bauer Construction in May of 2006. Three years later the Zerjals filed suit against the builder and the inspector claiming a multitude of issues with the home.  The trial court entered a judgment in favor of the plaintiffs and against Daech & Bauer Construction for $94,000.

The Zerjals alleged that the home inspector failed to discover and/or disclose numerous defects in the home that "should have been known to a reasonably careful licensed building inspector." The inspector moved to dismiss arguing that the limit of liability provision in the contract applied and the suit was barred as it was not filed within the 2 year statute of limitation. The trial court granted the defendant's motion to dismiss and plaintiffs appealed.

At the Appellate Court plaintiff argued that the exculpatory clauses were unconscionable. The Court said that while while these clauses are generally disfavored under Illinois law, they are enforceable unless: 1. enforcment would be against public policy and 2. something in the social relationship of the parties militates against enforcement. (The Court cited common carriers and employer-employee relationships as examples). As the relationship between a home inspector and a home inspector did not reach the level of a "special social relationship"  and the Illinois legislature does not prohibit or limit exculpatory clauses of home inspectors, the trial court's decision was affirmed.

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On May 11, 2003, plaintiff Maria Ortiz was hit and injured by a falling tree limb. The tree was on defendant’s Chicago property and the limb extended over a brick wall and a public walkway. The defendant did not hire professionals to inspect or maintain the tree but did its own maintenance by trimming low hanging branches. The plaintiff, her husband, and their two children were riding their bicycles on a very windy day. While stopped waiting for her husband and son to catch up with them, a large limb fell from the tree striking the plaintiff.

The case went to trial and the jury returned with a verdict in favor of the plaintiff and the court entered judgment and awarded plaintiff $686,831.17. The defendant filed a motion seeking a judgment not withstanding the verdict or a new trial. It was denied. Defendant appealed contending the court denied its post trial motions and request for a new trial.

The defendant argued that it owed a general duty “only to exercise reasonable care to prevent an unreasonable risk of harm arising from a defective or unsound tree.” It also argued that it had neither actual or constructive notice. The appeals court noted that the possessor of land is not liable for physical harm caused to others outside the land by a natural condition of the land. However there is an exception that applies to a possessor of land in an urban area where the possessor is “subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.”

The appeals court pointed to the record which showed that the defendant failed to take reasonable measures to prevent harm from the large overhanging limb to travelers on the sidewalk and as such the appeals court affirmed the verdict.
 

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Cook County Circuit Court Judge Kathy Flanagan’s granting of a motion for summary judgment has been reversed by the Illinois Appellate Court. The plaintiff, Marla Beth Torf, alleged injuries sustained on July 7, 2007, when she and her husband were passengers on a CTA train. Shortly after leaving the station the train was stopped and its power was turned off. Approximately 1.5 hours after the train was stopped passengers were ordered to evacuate the train. While trying to sit on the floor next to the train door to jump to the tracks below she was knocked to the ground by another passenger.

            The CTA filed a motion for summary judgment arguing that the plaintiff’s discovery deposition established that her injuries were caused by criminal assault and the complaint essentially argued that the CTA failed to protect the plaintiff from the criminal act of a third party. As such, the CTA felt it was immune from liability under Sec. 27 of the Metropolitan Transit Authority Act. This Act provides that the CTA cannot be held liable for its failure to prevent crimes by fellow passengers or other third parties.

            The plaintiff appealed, arguing that her allegations fell outside the scope of the statute and that a question of fact existed as to whether criminal conduct caused her injuries.

The appeals court agreed. Specifically the Appeals Court pointed out that there was nothing in the substance of the plaintiff’s complaint that could be construed to assert liability on the part of the CTA based upon its failure to prevent a criminal attack on the plaintiff. Furthermore, there was insufficient evidence on the record to determine the mental state of the passenger who made contact with the plaintiff. As such, the circuit court’s legal determination that the passenger’s conduct was battery was incorrect.

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