Posted on February 28, 2011 by Mark T. McAndrew

Put Me in Coach

With Spring Training going on I thought you'd enjoy an interesting baseball case. In the case of Vaughn v. Barton and the West Frankfort Recreation Association, the plaintiff , Debbie Vaughn filed suit after getting hit in the eye at her son's baseball game. She sued West Frankfort Recreation Association, a non-for-profit Illinois Corporation that organizes 12 summer baseball leagues and owned ten baseball diamonds, and Jarrod Barton, the father and coach, of Cody Barton. The eleven year old Cody testified that he and a teammate were warming up before a game when he threw a ball that bounced off of a teammate's glove and struck the plaintiff.

The Association renewed its motion for a directed verdict on the basis of the immunity contained in the Recreational Use of Water and Land Areas Act. The trial court granted the motion for both defendants on the same basis.  The Appeals Court affirmed. The statute provides that a possessor of land can be liable under only two cirumstances: "willfull and wanton failure to guard against or warn of a dangerous condition" or for any injury "where the owner of land charges the person or persons who enter or go on the land for" recreational uses.

The  plaintiff argued that Cody's $35 sign up fee was sufficient to remove the immunity provided by the Act. The Appeals Court disagreed. It explained that the Association never charged spectators an admission fee. The plaintiff was a spectator and could enter free of charge like anyone else. The purpose of the statute is to encourage land owners to make the property available to the public for recreational purposes by limiting their liability to those who might use it.

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Posted on February 20, 2011 by Mark T. McAndrew

Construction Law - Voluntary Undertaking

In 2005 Plaintiff, Rojas Concrete Inc., was hired by University of Illinois at Chicago to install concrete for the "UIC Forum", a mixed use classroom and office facility. UIC also contracted with Defendant Flood Testing Laboratories Inc. to monitor and test the concrete poured at the building site to ensure that the concrete conformed to the mix design as specified in the project plans. Rojas did not contract with Flood Testing www.floodlabs.com, in fact the contract between Flood and UIC clearly provided that Flood's duties did not extend to third parties such as Rojas.

Despite this, Rojas filed suit against Flood alleging that Flood tested and approved concrete that did not conform to the required specifications. As a result, Rojas alleged they poured 710 cubic yards of non-conforming concrete which they had to replace and resulted in damages of more than $950,000. Rojas alleged negligence and negligent misrepresentations so Flood filed a motion to dismiss, arguing no duty existed as the claims sought by Rojas were only economic damages not recoverable in tort.  Eventually the trial court granted the motion and plaintiff appealed.

The Appeals Court affirmed. The court pointed to the provision of the contract that specifically provided that Flood's duties did not extend to Rojas. It rejected Rojas' argument that a duty was owed under the voluntary undertaking doctrine, under which a person can be held liable for injuries if he or she has voluntarily agreed to perform a service necessary necessary for the protection of another person or his property, because under that doctrine bodily harm is required for the doctrine to be applicable and no such harm was alleged by Rojas. Rojas Concrete Inc. v. Flood Testing Laboratories Inc.

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Posted on February 13, 2011 by Mark T. McAndrew

Dead Man's Act- Discovery Deps

The Dead Man's Act provides: "In the trial of any action in which any party sues or defends as the representative of a deceased person . . ., no adverse person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased . . . or to any event which took place in the absence of the deceased. . ." 735 ILCS 5/8-201. The purpose is to level the playing field and remove the temptation of a survivor to testify to matters that could not be rebutted because of death to the only other witness to an event.

In the case of Balma and Gallup v. Henry and Grosvenor, the Illinois Appellate Court, Second District, was asked to determine whether or not admissions made by defendants in their discovery depositions were barred by the Dead Man's Act. The defendants had previously each submitted to a discovery deposition and provided information about the auto accident. Mr. Henry died a short time later and his estate filed a motion for summary judgment arguing that the discovery depositions failed to establish negligence and the Dead Man's Act would preclude the plaintiffs and co-defendant from testifying about the collision. The trial court granted the motion and then granted plaintiff's motion for interlocutory appeal.

The appeals court,  after noting Supreme Court Rule 212(a)(2), ruled that the statements made by the deceased defendant were not barred by the Dead Man's Act stating " ...after a party's death the evidentiary rules regarding admissions do not change simply because an admission is contained in a discovery deposition.

 

 

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Posted on February 6, 2011 by Mark T. McAndrew

Open and Obvious

Recently I did a video summarizing a case where a store was granted a Motion for Summary Judgment based upon the Open and Obvious doctrine. www.hennessyroach.com/updates/mcandrew_fleet_update.html Unfortunately they are not always that easy, see below:

On September 25, 2001, plaintiff, Carlota Alqadhi, tripped and fell over raised concrete while leaving a parking garage owned by defendant Center at River East LLC and run by defendant Standard Parking. She alleged she tripped because defendants failed to mark a 3/4 inch rise in concrete of a wheelchair -accessible ramp. Defendants filed a motion for summary judgment arguing the condition was open and obvious. The plaintiff responded with an affidavit by a registered engineer. The engineer acknowledged the ramp was imprinted with a cross hatched diamond pattern to warn pedestrians but  he "found the lack of contrast between the surface of the parking level and the the curb ramp disguised the abrupt change in vertical elevation between the parking level and those surfaces. . ." He concluded that the defendant's failure to mark the curb with contrast paint was the proximate cause of plaintiff's accident.

The trial court found that the raised concrete was an open and obvious condition and granted the defendant's motion. The Appeals Court said that normally where there is no disputed about the physical nature of the condition, the question of open and obvious is a legal one for the court. However, where there is a dispute about the condition's physical nature, such as visibility, the question is factual. The Court pointed to plaintiff's testimony that the lighting conditions around the curb was "dark."  As such the Appellate Court disagreed with the trial court and the ruling was reversed.

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