The Chicago Bar Association Tort Litigation Committee's TORT REPORTER

A. Private "walkway" is considered a "sidewalk" under Snow and Ice Removal Act, 745 ILCS 75/1, et seq.

Bremer v. Leisure Acres-Phase II Housing, __ Ill. App.3d ___ , 2006 WL 120358, (3^rd District, Docket No. 3-05-0112) (January 12, 2006)

In Bremer, the plaintiff was injured when she slipped and fell on ice on a walkway outside her apartment. The walkway was entirely within the property lines of the apartment complex and connected the plaintiff's apartment to the defendant’s parking lot. The complaint alleged that defendant negligently failed to properly remove the ice, after assuming a duty to do so.

Defendant sought summary judgment pursuant to the Snow and Ice Removal Act, 745 ILCS 75/1, et seq. The Snow and Ice Removal Act provides that "Any owner, lessor, occupant or other person in charge of any residential property, or any agent of or other person engaged by any such party, who removes or attempts to remove snow or ice from sidewalks abutting the property shall not be liable for any personal injuries allegedly caused by the snowy or icy condition of the sidewalk resulting from his or her acts or omissions unless the alleged misconduct was willful or wanton." 745 ILCS 75/2.

Plaintiff contended (1) that the Act did not apply because she was injured on walkway not a sidewalk; and (2) that the term "abutting the property" means that the sidewalk must be a public sidewalk that borders the residential property, and that the act does not apply to walkways located entirely within private property. The Appellate Court rejected the plaintiff’s arguments and held that the defendant was entitled to summary judgment.

The Bremer court concluded that the walkway constituted a sideway as defined by the Act. The Court also held that the Act does not require that the walkway "abut public property" or lie along the border of the residential property. The court stated "the statute applies to any sidewalk that reaches or touches the residence, or that borders that residential property in general. We refuse to read limitations into the statute that the legislature did not expressly provide." 2006 WL 120358 at page 3.

Bremer v. Leisure Acres-Phase II Housing, – Ill. App.3d –, 2006 WL 120358, (3^rd District, Docket No. 3-05-0112) (January 12, 2006)

B. A police officer struck by falling scaffolding is barred from recovery in accordance with "The Firefighter’s Rule".

Jackson v. Urban Investment Property Services, et al., __ Ill. App. 3d. ___ ; 839 N.E.2d 650 (1^st Dist. Docket No. 1-03-3001) (November 18, 2005)

Plaintiff, a police officer, was injured when he was struck by falling scaffolding. Plaintiff, responded to a call that scaffolding was falling around a theater and was damaging parked cars. Plaintiff arrived at the scene and inspected the area. He was struck by falling scaffolding as he was walking towards his squad car to retrieve information. Urban owned the property from which the scaffolding fell, and it had leased the scaffolding from Designed. Plaintiff filed suit against both Urban and Designed.

The court relied upon the Fire Fighter's Rule in finding that defendant Urban was entitled to summary judgment. The Fire Fighter's Rule provides that "public officers may not recover from those whose negligence caused the emergency that required their presence when their injuries were caused by that emergency." Jackson, 839 N.E.2d at 652; quoting Knight v. Schneider National Carriers, Inc., 350 F.Supp.2d 775, 782 (N.D. Ill.2004). The Jackson court held that when a police officer responds to a call about a scaffold falling, the landowner is not liable in negligence to the police officer for injuries caused by the scaffold falling on the police officer. Jackson, 839 N.E.2d at 651. The court noted that Designer could share in Urban's immunity for activities that it undertook on Urban's land and on Urban’s behalf (839 N.E.2d at 654), but denied summary judgment on behalf of Designer since there was no evidence in the record that it undertook any such activities. 839 N.E.2d at 651.

It should also be noted that the Fire Investigation Act was recently amended and now states that the "owner or occupier of the premises and his or her agents owe fire fighters who are on the premises in the performance of their official duties *** a duty of reasonable care in the maintenance of the premises." 425 ILCS 25/9f. The Jackson court stated that Fire Investigation Act did not apply since the case involved a police officer, not a fire fighter. 839 N.E.2d at 652-53.

C. Release of minor’s claim unenforceable without Court approval.

Villalobos, et al. v. Cicero School District, et al., __ Ill. App.3d ___ , 2005 WL 3290975, (1^st District, Docket No. 1-04-2411) (December 5, 2005)

The Appellate Court in Villalobos held that a release signed by a parent on behalf of their minor child but without Court approval is not enforceable, and does not bar the a subsequent action on behalf of the minor child. In Villalobos, a minor was injured in an automobile accident. Before suit was filed the insurance contacted the parents and the parents signed a release of the minor’s claims in exchange for $3,000.00. The release was never approved by a court.

Subsequently, a lawsuit was filed on behalf of the minor. The trial court granted defendant's motion for summary judgment based upon the release. On appeal, plaintiff argued that there was an issue of fact as to whether the parents understood the release and as to whether the insurance company made misrepresentation to induce the parents to sign the release.

Although not raised by the parties, the Appellate Court during oral argument raised the question of whether the child's minority affected the enforceablity of the release signed on her behalf by her parents. The Appellate Court asked the parties to file supplemental briefs on this issue. The Villalobos court held that the release was unenforceable and did not bar the minor plaintiff's lawsuit because the release was never approved by a Court. Therefore, the Appellate Court reversed the trial court’s granting of summary judgment and remanded the case for trial.

D. No cause of action for legal malpractice because plaintiffs subsequently entered into a settlement agreement regarding the underlying claim which stated that the settlement was "fair and reasonable."

Webb, et al. v. Damisch , et al., __ Ill. App.3d ___ , 2005 WL 3470215, (1^st District, Docket No. 1-04-3823) (December 19, 2005)

In Webb, plaintiffs were traveling in a GM vehicle when the steering and brakes failed. The driver lost control of the vehicle, crossed over the into the opposite lanes of traffic and struck another vehicle. Plaintiffs suffered severe personal injuries. One of the plaintiffs was rendered a paraplegic.

The plaintiffs were initially represented by defendants. An action against GM was filed by subsequent counsel. The plaintiffs and GM settled that action. Plaintiffs then filed a legal malpractice against the initial attorneys. Plaintiffs alleged that the attorneys were negligent in failing to secure the vehicle for use as evidentiary material on the issue of a manufacturing defect. Plaintiffs alleged that as a result of defendants' negligent, they lost the full value of their recovery.

The Webb court held that the defendants' conduct did not cause plaintiffs to receive less than the full value of their claims. Therefore, the court dismissed plaintiffs' legal malpractice action. The court based its decision on the fact that the settlement agreement referred to the settlement as "fair and reasonable." The court also stated that the plaintiffs did not present any facts to establish that they received less than the full value of their claim.

It should be noted that in Webb, the court stated "We agree ** that settlement by successor counsel does not necessarily bar a malpractice action against a prior counsel. Further, an attorney malpractice action should be allowed where the plaintiff can show that he settled for a lesser amount than he could reasonable expect without malpractice. But, such is not the case here." (Citations omitted.) Webb, et al. v. Damisch , et al., 2005 WL 3470215 at p. 8.

E. A jury's award of zero for disfigurement was proper, even though plaintiff had a scar on her neck.

Stift v. Lizzadro, __ Ill. App.3d ___ , 2005 WL 3291081, (1^st District, Docket No. 1-04-2094) (December 5, 2005)

In Stift, the jury returned a verdict in favor of plaintiff and awarded her $40,000.00 for pain and suffering, $0 for loss of normal life experienced, $0 for loss of normal life reasonably certain to be experienced in the future, $26,646.96 for medical expenses, and $0 for disfigurement. Plaintiff appealed claiming, among other issues, that the trial court erred by denying her motion for a new trial on the issue of disfigurement. The Stift court stated that disfigurement has been defined as that "which impairs or injures the beauty, symmetry or appearance." (citations omitted).

During the trial, the jury did observe the plaintiff's scar. But there was no description of it in the record, other than that it was on plaintiff's neck. Nor were there any photographs of the scar in the record. The court held that due to the lack of photographs and a description of the scar, it was in no position to second guess the jury's determination that there was no disfigurement. The court stated that the jury could have determined that the scar was not noticeable or that it did not impair plaintiff's "beauty, symmetry, or appearance." Therefore, the court found plaintiff was not entitled to a new trial on the issue of disfigurement.

Case Law Updates

By Daniel Extrom