Case Law Updates

By Daniel Extrom

Premises Liability

Kurczak v. Cornwell
835 N.E. 2d 452, 296 Ill. Dec. 418, 2005 WL 2364896
(2d Dist., 2005)
September 16, 2005

Second District Appellate Court held that the “Snow and Ice Removal Act” (745 ILCS 75/2) applies to privately-owned and publicly-owned sidewalks that abut residential property, thereby requiring a plaintiff injured on privately-owned sidewalk leading to a residence to plead and prove willful and wanton conduct on the part of the defendant property owner in order to recover. The Court cited Yu v. Kobayashi, 281 Ill.App.3d 489, 217 Ill. Dec. 313, 667 N.E. 2d 106 (1996) as authority that a “sidewalk” within the meaning of the Act contemplated that both the sidewalk and the stoop at the door are parts of the same continuous walkway, such that they are “akin to a traditional sidewalk,” and therefore the terms of the “Snow and Ice Removal Act” applied to bar recovery for alleged negligent acts. In the Kurczak case, plaintiff alleged that he was injured when he slipped and fell on a paved walkway leading from the driveway to the home of the defendant. The Appellate Court held that the Act does not expressly limit itself to sidewalks that “border” the property, nor is it limited to public sidewalks. In addition, the Court held that, as a matter of law, plaintiff failed to produce evidence of willful and wanton misconduct. It was not sufficient to show that the Defendant saw snow melting on the roof overhang, or that another person slipped in the same place one week prior to the plaintiff’s fall where there was no evidence that Defendant knew of that fall, or that Defendant knew that water was dripping and might freeze. Plaintiff agreed that ice melt had been applied to that area of the fall, and there was no evidence of a defective gutter system.

Petrillo Revisited

Moss v. Amira
356 Ill. App.3d 701, 826 N.E. 2d 1001, 292 Ill.Dec. 565
(1st Dist. 2005)
March 24, 2005

Defendant attorney who forwarded the discovery deposition transcript of a treating physician and Rule 213 (f) narratives of testimony expected to be elicited at trial from other treating physicians to Plaintiff’s treating physician, whom the defense attorney intended to call as his own witness at trial, constituted a violation of Petrillo v. Syntax Laboratories, Inc. (1986), 148 Ill.App.3d 581, 499 N.E. 2d 952, 102 Ill. Dec. 172, cert. denied (1987), 483 U.S. 1007, 107 S.Ct. 3232, 97 L.Ed.2d 738. Defense attorney argued that the contact was de minimus within the meaning of Mahan v. Louisville & Nashville R.R. Co., 203 Ill. App.3d 748, 148 Ill.Dec. 821, 561 N.E. 2d 127 (1990). In a supplemental 213 (f) response, the plaintiff had stated an intention to proffer the testimony of one treating physician to the effect that the plaintiff would need additional surgery. Defense attorney’s disclosure to counter that opinion was that another treating physician he had disclosed as a 213 (f) witness, who had been deposed in a discovery deposition, would opine that such surgery was not necessary. The court held that defense attorney’s act of forwarding the attorney’s summary of the opinions expressed in the doctor’s discovery deposition did not simply constitute “preparing the doctor for his evidence deposition.” Instead, the communication involved a Petrillo violation and a small verdict for the plaintiff was overturned and a new trial was ordered.

Premises Liability

Haupt v. Sharkey
358 Ill.App.3d 212, 832 N.E. 2d 198, 295 Ill.Dec. 47
(2d Dist., 2005)
June 16, 2005

Plaintiff tavern patron injured outside tavern after altercation with another tavern patron held to remain invitee even beyond property line of tavern in which he was attacked by the other patron. Holding that there is no “bright line test,” a tavern owner’s duty to provide a safe means of ingress and egress may extend beyond the property line, because the event, a fight, occurred during plaintiff’s “egression” from the tavern. In addition, although ordinarily a premises owner does not owe a duty to prevent criminal acts by third parties against a patron, where a criminal act by a third person is reasonably foreseeable such as to put a reasonably prudent person on notice of the probability of an attack, or when a serious altercation has already begun, then a duty may be inferred. Here, the altercation started inside the tavern and the owner ejected both fighters out the front door. He then closed the door and ushered other patrons out the back door, suggesting that he knew that violence would continue. Evidence existed that Defendant knew that one of the fighters had a propensity for violence. Trial court’s grant of summary judgment in favor of defendant reversed and cause remanded.

Construction Negligence

Downs v. Steel and Craft Builders, Inc.
358 Ill. App. 3d 201, 831 N.E. 2d 92, 294 Ill.Dec. 569
(2d Dist., 2005)
June 22, 2005

Plaintiff brought action for injuries sustained in trench collapse on job-site, and complaint alleged liability under Restatement of Torts Section 414, specifically alleging that general contractor retained control of certain aspects of work performed by sub-contractor. Second District Appellate Court held that summary judgment in favor of defendant general contractor was appropriate. Holding that contract between general contractor and sub-contractor stated that general contractor did not retain control over manner or method of work to be done by sub-contractor’s employees. Additionally, the general contractor did not actually engage in any conduct to control the manner of the sub-contractor’s work in contravention of actual contract language. As such, summary judgment was properly entered in favor of general contractor, citing First District case of Bieruta v. Klein Creek Corp., 331 Ill. App. 3d 269, 770 N.E. 2d 1175, 264 Ill.Dec. 479 (2002), which held that a general contractor who controlled the “ends” but not the “means” would not be legally responsible for sub-contractor’s employee’s injuries.

In addition, in a case of first impression, the Appellate Court held that the Occupational Safety and Health Act of 1972 (OSHA), 29 U.S.C. Section 653(b)(4) and C.F.R. Sections 1926.650 through 1926.651 (2004) sub-part P, (which governs trench excavation safety issues), does not suffice to impose a non-delegable duty on general contractor to maintain a safe construction site. Since general contractor could not be liable under Illinois law, OSHA and Construction Safety Act of 1969 (40 U.S.C. Sections 3704 through 3705 (Supp. I 2005) and 29 D.F.R. Section 1926.16(a,c,d) could not be used to enlarge the general contractor’s duty under Restatement Section 414. The Court held that OSHA expressly declares that it shall not be construed to supersede, enlarge or otherwise affect the common law or statutory rights, duties or liabilities of employers and employees regarding injuries on jobsites. To allow the plaintiff to proceed on a theory that the general contractor’s obligations under OSHA and related codes constitute non-delegable duties separate and apart from Illinois law “would create an exception that would swallow the rule.”

Uninsured Motorist Setoffs

Gillen v. State Farm Mutual Automobile Insurance Co.
215 Ill.2d 381, 830 N.E. 2d 575, 294 Ill. Dec. 163
May 19, 2005

Illinois Supreme Court holds that State Farm is not allowed to take as a setoff against uninsured motorist limits those benefits received by deceased paramedic’s estate from City of Chicago pursuant to the Pension Code. Paramedic was injured by uninsured motorist while providing emergency help at the scene of a motor vehicle accident. While there he was struck by an uninsured vehicle. City of Chicago paid approximately $76,600 in medical expenses pursuant to municipal ordinance, adopted in accordance with city’s Pension Code. Paramedic’s wife and special administrator made claim with State Farm for uninsured motorist benefits. Policy had limit of $100,000. State Farm issued check but took a setoff of $76,600 which had been paid by City. State Farm argued that the uninsured motorist provision contains a limitation of liability clause which allows reduction of uninsured motorist limit based on “any amount paid or payable to or for the insured under any workers’ compensation, disability benefits or similar law.” State Farm relied on Ullman v. Wolverine Insurance Co., 48 Ill. 2d 1, 269 N.E. 2d 295 (1970) and State Farm Mutual Automobile Insurance Co. v. Murphy, 263 Ill.App.3d 100, 635 N.E. 2d 533, 200 Ill. Dec. 194 (1994). In Ullman, the insurance company was allowed a setoff for WC benefits paid (issue in Ullman case was whether setoff violated public policy) in accordance with an explicit provision in the insurance policy. In the present case, however, the Illinois Supreme Court noted that there is no explicit provision in the policy regarding benefits paid pursuant to the Pension Code by municipal ordinance. The issue is not, the Court held, whether an Illinois court has found a similarity between the Pension Code and the Illinois Workers’ Compensation Act; rather the issue is whether the average person who contracted with State Farm would reasonably understand that State Farm’s liability for uninsured motorist coverage would be limited for payments made pursuant to the Pension Code and the municipal ordinance. At best, even if a reasonable person in the shoes of the policyholder might think that State Farm’s liability would be reduced by Pension Code payments, this would create an ambiguity which would be construed against State Farm. State Farm could easily have modified its policy language to provide a setoff in its policies, since the pertinent language in the Pension Code has not changed in 40 years.