CASE LAW UPDATE. Presented and Prepared by: Matthew R. Booker Springfield, Illinois

Transcription

1 CASE LAW UPDATE Presented and Prepared by: Matthew R. Booker Springfield, Illinois Prepared with the Assistance of: Jeffrey G. Cox Springfield, Illinois Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2011 Heyl, Royster, Voelker & Allen N-1

2 CASE LAW UPDATE I. CASE BRIEFS... N-3 A. Slip, Trip and Fall Open and Obvious Doctrine... N-3 B. Natural Accumulation... N-5 C. Act of God Defense... N-5 D. Recreational Immunity... N-6 E. Governmental Immunity... N-7 F. Jury Instructions... N-7 G. Voluntary Undertaking of Duty... N-8 H. Medical Testimony... N-9 I. Asbestos... N-10 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. N-2

3 CASE LAW UPDATE I. CASE BRIEFS A. Slip, Trip and Fall Open and Obvious Doctrine Rusch v. Leonard, 399 Ill. App. 3d 1026, 927 N.E.2d 316, 339 Ill. Dec. 775 (2d Dist. 2010) Rusch, a firemedic, filed an action against the premises owners for personal injuries he sustained while carrying victims from a burning building. Plaintiff claims that the property owners negligently maintained the stairwell by failing to provide a handrail. The defendants filed for summary judgment claiming that the Fireman s Rule, barred liability. The Fireman s Rule limits the extent to which firefighters or other public officers may be allowed to recover for injuries incurred when, in an emergency, they enter onto privately owned property in discharge of their duty. The trial court granted summary judgment in favor of the defendants holding not only that the Fireman s Rule was applicable, but also that the open and obvious doctrine applied. The Second District reversed. The Court first looked to the Fireman s Rule. According to the Fireman s Rule, an owner of land must exercise reasonable care to prevent injury to the fireman that might result from a cause independent of the fire. An owner does not have a duty to prevent injury resulting from the fire itself. The Fireman s Rule did not apply in this case because the injuries were not caused by the fire, but rather the poorly maintained staircase. The Court next examined the applicability of the open and obvious doctrine. A landowner owes no duty when a condition is open and obvious and a reasonable person would appreciate the risk. While the stairwell s deficiencies may have been open and obvious, the deliberate encounter exception applied. The deliberate encounter exception states that a landowner may be liable if he should anticipate known or obvious dangers because the advantages gained would outweigh the apparent risk. The Court found that because this stairway was the only means to travel between the first and second floors, the landowner should have anticipated that a person would deliberately encounter the danger of the stairwell. Kleiber v. Freeport Farm and Fleet, Inc., 406 Ill. App. 3d 249, 942 N.E.2d 640, 347 Ill. Dec. 437 (3d Dist. 2010) Plaintiff brought suit against the store for injuries she sustained when she fell and broke her leg. Plaintiff had purchased topsoil which was stored outside the entrance of the store on wooden pallets. When plaintiff tried to retrieve her bags of topsoil, there were empty pallets between herself and the remaining products. In order to get to the bags of topsoil, plaintiff deliberately walked across the wooden pallets, which resulted in her injuries. Plaintiff claimed the store was negligent in leaving the empty pallets directly in her path to the topsoil. Defendants filed a Motion for Summary Judgment claiming that the dangers were open and obvious and a reasonable plaintiff would have appreciated the risk. The trial court granted that Motion for Summary Judgment and plaintiff appealed. N-3

4 Plaintiff argued that while the danger may have been open and obvious, the distraction, or deliberate encounter exception applied. In affirming the summary judgment, the Third District found that there was no evidence that the plaintiff could have been distracted when traversing the empty pallet. Furthermore, the Court held that the deliberate encounter exception did not apply because the plaintiff could have easily gone into the store and asked for assistance. The deliberate encounter exception generally has been applied when the plaintiff has an economic reason for choosing to encounter the danger, such as a job requirement. The dissent, however, held that the deliberate encounter exception should apply. The dissenting Justice stated that there does not have to be an economic reason for encountering the danger. The Judge reasoned that because the store was encouraging self-service by patrons, it would be reasonable to expect patrons to walk across the empty pallets. Hope v. Hope, 398 Ill. App. 3d 216, 924 N.E.2d 581, 338 Ill. Dec. 375 (4th Dist. 2010) Plaintiff, Amanda Hope, brought a premises liability action against her parents, Jim and Karen Hope, alleging negligence for failure to remove mud from the front porch steps which in turn caused Amanda to fall and sustain injuries. Jim and Karen s home was constructed with four concrete steps up to the front porch. On the day of the incident, Karen had been doing yard work in the front yard. As her shoes would accumulate mud, she would scrape the mud onto the front porch steps. Later in the morning, when their daughter came to visit, she slipped on the mud which her mother had scraped onto the stairs. The defendants moved for summary judgment, which was granted, arguing that the mud on the steps was open and obvious. On appeal, plaintiff argued that the distraction exception should apply. Amanda claimed even though she had been warned about the mud on the steps when she entered their residence, the activities of eating, studying, watching television, and sleeping caused her to forget about the mud on the steps, and therefore, the distraction exception should apply. The Court held that there was no reason for the defendants to anticipate the plaintiff being distracted. The distraction must be occurring at the same time as the injury. In this case, the plaintiff was not eating, studying, watching television, or sleeping at the time she fell on the steps. Lake v. Related Management Company, L.P., 403 Ill. App. 3d 409, 936 N.E.2d 704, 344 Ill. Dec. 175 (4th Dist. 2010) Plaintiff s complaint alleged that while she was carrying bags of groceries from her car to her apartment her heel caught in a one inch gap between the concrete slabs of the sidewalk. She fell and sustained injuries as a result of this fall. Evidence showed that she knew the gap existed and that she knew that it was dangerous. Defendants filed a Motion for Summary Judgment, which was granted, claiming the property owner did not owe a duty to the plaintiff to warn or protect her from an open and obvious condition. The Appellate Court affirmed the trial court s ruling, that summary judgment was appropriate because the defect was open and obvious and the distraction exception did not apply. The distraction exception would apply if there is reason to expect that the plaintiff s attention may be distracted, which would result in injuries. The Court stated, however, the distraction should not be solely the plaintiff s own creation. Because the plaintiff knew of the gap in the sidewalk, she created her own distraction by blocking her view with the grocery bags. N-4

5 B. Natural Accumulation Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 938 N.E.2d 440, 345 Ill. Dec. 1 (2010) Plaintiff filed a negligence action against Chicago Transit Authority (CTA) alleging that CTA breached its duty by failing to remove snow and ice from the platform at a train station. Through discovery it was learned that there had been snow and ice on the platform for at least three days prior to this incident. On the day of plaintiff s alleged injuries, the weather was reported as foggy with sleet. CTA moved for summary judgment and argued that they had no duty to remove natural accumulations of snow and ice. Plaintiff, on the other hand, argued that CTA had a duty to provide its passengers a safe and reasonable place to exit the trains. The trial court denied CTA s summary judgment motion and the case proceeded to trial, wherein a verdict in the amount of $372,141 was returned in plaintiff s favor. CTA appealed and the Appellate Court reversed. The Supreme Court of Illinois affirmed the Appellate Court s ruling and held that the CTA was not responsible for removing natural accumulations of snow and ice. Plaintiff argued that the rationale behind the natural accumulation rule was to take the burden off the city to maintain perfectly clean sidewalks during an ongoing foul weather storm. Plaintiff said that since the snow and ice had been on the sidewalk for at least three days, the city had ample opportunity to remove any dangers. The Court, however, held that there is no time requirement for natural accumulation. The Court noted that there was no evidence that the snow and ice was anything but natural accumulation, therefore, the CTA did not owe a duty to remove the snow. The plaintiffs next argued that the CTA breached its duty by failing to provide a safe place for passengers to exit the train. The Court held that it would be an undue burden on the CTA to be required to check the platform each and every time a train stopped at the station. Evidence revealed that at the time the incident occurred, the train in question was running 24 hours a day, 7 days a week. The Court stated that the burden put on the CTA would be overwhelmingly detrimental to the efficient performance of the transit system. C. Act of God Defense Evans v. Brown, 399 Ill. App. 3d 238, 925 N.E.2d 1265, 339 Ill. Dec. 144 (4th Dist. 2010) An injured motorist sued the special administrator for a deceased driver s estate and the driver s employer, alleging that the driver negligently operated his company car, and thereby caused her serious injuries. In February of 2006, defendant driver was operating a vehicle owned by his employer for personal use. As plaintiff was traveling eastbound, the defendant was traveling westbound and suddenly went into the eastbound lanes causing an accident. This accident resulted in serious injuries to plaintiff. Defendant was transported home and claimed that he had blacked out or fallen asleep while driving, which is what caused the accident. Later that evening when friends tried to check on defendant, they found him deceased. Defendant s cause of death was blamed on a heart attack he suffered about one week before his death. Because the heart attack went untreated, there was gradual degradation of the heart muscle wall which resulted in a rupture and the instantaneous death of the defendant. Defendants moved for summary judgment arguing that the heart attack went undetected and, therefore, the blackout which N-5

6 caused the accident was unforeseeable and an Act of God. The trial court granted defendants Motion for Summary Judgment and stated that the plaintiff was putting a duty on the defendant of self-diagnosis. On appeal, plaintiff contended that summary judgment was not appropriate because she had established a prima facie case of negligence. Plaintiff argued that there was a genuine issue of material fact as to whether the injuries were caused by the defendant s negligence or by an Act of God. The Court agreed with plaintiffs and stated that there were genuine issues of material fact. Specifically, the Court stated that defendant s statement that he fell asleep was in contradiction to the Act of God premise defendants were claiming. D. Recreational Immunity Vaughn v. Barton, 402 Ill. App. 3d 1135, 933 N.E.2d 355, 342 Ill. Dec. 769 (5th Dist. 2010) A sport spectator plaintiff brought an action against a recreation association and an unpaid little league baseball coach to recover damages from being hit by a baseball. The ball was thrown by the coach s 11-year-old son while he was warming up for his baseball game. The association was a not-for-profit Illinois corporation that organized 12 little league baseball leagues involving approximately 650 youth. Defendant, Jarrod Barton, was a volunteer coach and his son, Cody, was a participant. While waiting for a game to start, Cody threw a ball to a friend which bounced out of the friend s glove and struck plaintiff on the head causing injury. The trial court granted a directed verdict in favor of the defendants holding that the Recreational Use Act applied and liability could not be found for Jarrod or the association. The trial court found that immunity applied under the Recreational Use of Land and Water Areas Act (the Recreational Use Act). On appeal, the plaintiff contended that the fee paid by Cody to participate was sufficient to remove the immunity of the Recreational Use Act. The purpose of the Recreational Use Act was to encourage owners of land to allow people to enter that land for recreation, relaxation, which limited their liability. Owners can only be held liable in two circumstances: 1. For wilful and wanton failure to guard against a dangerous condition, use, structure, or activity; 2. For any injury where the owner of land charges the person or persons who enter or go on the land for recreational use. Plaintiff contended that because Cody paid a $35 fee to be in a summer ball league, the owners of the land could be held liable. The Court looked to the wording in the statute and to the legislature s intent to determine the outcome of the case. The Recreational Use Act is very broad and immunizes landowners from negligence liability for persons on the land for exercise, education, relaxation, or pleasure. The Court held that attending a little league baseball game, or playing in a baseball game, was a form of relaxation or pleasure, therefore, neither the association nor Jarrod Barton could be held liable for allegedly negligent conduct. N-6

7 E. Governmental Immunity Ries v. City of Chicago, No , 2011 WL (Feb. 25, 2011) Plaintiff filed suit against the City of Chicago for wilful and wanton misconduct when a police car collided with plaintiff s vehicle. During an unrelated investigation, a City of Chicago police officer placed a suspect in the back seat of a CPD squad car. The squad car was not equipped with a screen between the back seat and the front seat, the police officer left the keys in the ignition, and the suspect was not handcuffed. Seizing the opportunity, the suspect then stole the vehicle, a chase ensued, and the suspect collided with the plaintiffs in this case. The case ultimately went to a jury trial against the city only and the jury entered a verdict for the plaintiffs. The Appellate Court reversed and held that the city and the officer were immune from liability pursuant to section 4-106(b) of the Local Government and Governmental Employees Tort Immunity Act. Plaintiffs argued that because they alleged wilful and wanton conduct, the Tort Immunity Act did not apply. On appeal to the Supreme Court, the Appellate Court was affirmed. The Court held that the suspect was considered an escaping prisoner within the meaning of the provision in the Tort Immunity Act. This immunity prevails over the more general immunity provision, which has an exception for wilful and wanton misconduct. F. Jury Instructions Ready v. United/Goedecke Services, Inc., 238 Ill. 2d 582, 939 N.E.2d 417, 345 Ill. Dec. 574 (2010) This wrongful death action was brought on behalf of a construction worker who was killed when a beam from scaffolding fell on him. Plaintiffs filed suit against the general contractor, BMW, and the sub-contractor, Goedecke. The two defendants then filed a third-party complaint against the factory owner. Before trial, the factory owner and Goedecke settled, however, BMW did not. At the original trial, the trial court did not allow evidence to show fault of the settling parties. The Supreme Court heard the first appeal in this case in 2008 and held that an apportionment of fault of the settling parties was not permitted. The issue before the Supreme Court in this case was whether the trial court erred by refusing to give a sole proximate cause jury instruction during the trial. Plaintiffs contended that defendant, Goedecke, was the sole proximate cause of the injuries because Goedecke failed to order a crane which would have prevented the deceased from being injured. Goedecke, on the other hand, contended that it was BMW s duty to supply the crane. According to the contract, BMW was to supply a crane upon the request of Goedecke. The Supreme Court held that there must be some evidence in the record to justify the jury instruction in question. Because there was some evidence that BMW could have been the sole proximate cause of the injuries to the plaintiff, the trial court should have given a sole proximate cause jury instruction. During the trial, however, it was revealed that Goedeke never requested a crane from BMW. For that reason, the Supreme Court stated that there was no way a jury would have found that BMW was the sole proximate cause, therefore, the error by the trial court was harmless. N-7

8 Jablonski v. Ford Motor Co., 398 Ill. App. 3d 222, 923 N.E.2d 347, 337 Ill. Dec. 788 (5th Dist. 2010) Dora Jablonski filed a products liability suit on behalf of herself and her deceased husband, John, following a car accident. The Jablonskis were stopped at a construction site on Interstate 270 in Madison County, Illinois. A co-defendant crashed into the back of the Jablonskis vehicle going at least 56 mph. She struck the plaintiffs vehicle dead center and there were no skid marks. A pipe wrench in the back of the plaintiffs vehicle pierced the gas tank and caused a large fire. Both were severely burned and one later died. The plaintiffs negligence claims were focused on the design of the fuel tank system in their specific vehicle. During trial both sides presented massive amounts of evidence from experts and lay witnesses. Plaintiffs presented evidence that showed the defendants knew of the design flaws in the gas tank and failed to warn customers of these dangers after the sale of the vehicles. The trial court also allowed a list of 416 similar accidents into evidence. Plaintiffs presented evidence that the manufacturer of the vehicle, upon learning of dangers, made a special effort to warn police agencies that used the vehicles in question. After a jury verdict for the plaintiffs, Ford Motor Company appealed and the Appellate Court reviewed several issues. The defendants argued that a jury instruction on whether the manufacturer breached a continuing post-sale duty to warn of risks of the trunk contents puncturing the fuel tank was not warranted. The Court, however, found for the plaintiffs and held that a manufacturer has a continuing duty to warn of a hazard of which it had a duty to warn of at the time the product was manufactured. Next the Court examined whether the trial court erred by admitting evidence that showed the manufacturer warned police users of the dangers associated with the fuel tanks but did not warn civilian owners. The defendants argued that this evidence violated the rule of subsequent remedial measures. The Court however, held that the manufacturer knew of the dangers after the vehicle was sold to the plaintiffs, but before the accident occurred. The Court held the evidence was admissible to at least show that an alternative feasible design was available which could have prevented the plaintiffs injuries. Finally, the Appellate Court reviewed whether the trial court erred by admitting a list of 416 similar prior accidents. The Appellate Court held that because the list included only similar type crashes (rear end accidents with a punctured fuel tank), and these accidents occurred before the manufacturer sold the vehicle to plaintiffs, the evidence was admissible. G. Voluntary Undertaking of Duty Bell v. Hutsell, 402 Ill. App. 3d 654, 931 N.E.2d 299, 341 Ill. Dec. 691 (2d Dist. 2010) Plaintiffs filed suit on behalf of their deceased son who died after leaving a party at the defendants home. Defendants son, Jonathan, threw a party at defendants home wherein numerous high school and underage guests were illegally consuming alcohol. Before the party began, defendant told his son that there would be no underage drinking and that he would be N-8

9 checking on the partygoers. The guests of the party brought alcohol without permission and consumed that alcohol without the defendants knowledge. After the party, one of the guests, Daniel Bell, and a passenger were in a car accident and both were killed. Plaintiffs claimed that defendants voluntarily undertook the duty to monitor the party guests and prevent injury. Plaintiffs also alleged civil violations of Liquor Control Act stating that it was unlawful for a parent to permit their children s guests from consuming alcohol if under 21. The trial court dismissed the complaint stating that there was no duty on behalf of the defendants because there is no social host liability in Illinois. The voluntary undertaking theory was simply a way of trying to circumvent the rule against social host liability. On appeal, plaintiffs contended that the defendants voluntarily undertook a duty to prevent consumption of the alcohol. This was evidenced by the statements to their son that they would not allow alcohol at the party. Furthermore, the defendants monitored the party and made an effort to prevent the consumption of alcohol. Defendants claimed there was no duty because they were acting as social hosts and no liability exists for social hosts in Illinois. The Court held that because the defendants did not supply the alcohol, they were not considered social hosts. A duty arose on behalf of the defendants when they voluntarily took the responsibility to prevent consumption of alcohol by the partygoers. The Court affirmed the dismissal of the counts of the complaint which asserted a private cause of action under the Liquor Control Act. The plaintiffs alleged that the defendants knowingly authorized or enabled the partygoers to distribute and consume alcoholic beverages. The Court held that these allegations would place the defendants in a position of a social host. The legislature has refused to impose social host liability upon adults who provide alcoholic beverages to underage persons. H. Medical Testimony Anderson v. Zamir, 402 Ill. App. 3d 362, 931 N.E.2d 697, 341 Ill. Dec. 800 (5th Dist. 2010) In September, 2005, plaintiff, Tiffany Anderson, was in a car accident in which the defendant rear ended her vehicle. During trial, plaintiff presented evidence of medical bills totaling $28,804. The jury returned a verdict in the amount of $12,500. Plaintiff appealed. The Appellate Court held that a jury s verdict must be supported by the evidence. In particular, a monetary award should consider factors such as the extent of the injury suffered and the degree of the permanency of those injuries, the plaintiff s age, the possibility of future difficulties, the amount of medical expenses involved, and the restrictions upon the plaintiff s life as a result of the injuries suffered. During trial, the only medical testimony that was presented was on behalf of the plaintiff by the plaintiff s doctors. The defendant cross examined both of the doctors but did not impeach them. The defendant argued that the injuries reported by plaintiff to her shoulder were not causally related to the accident because they were not reported until July Both plaintiff s doctors, however, testified during trial that the injuries to her shoulder were caused by the accident. N-9

10 The Court held that the jury is not allowed to arbitrarily reject un-impeached testimony. Because the only medical testimony introduced at trial regarding the injuries to her shoulder stated that the car accident was the cause of those injuries, the jury must use that information in determining damages. Because the jury s verdict did not bear a reasonable relationship to the injuries established by the plaintiff at trial, a new trial was warranted. I. Asbestos Simpkins v. CSX Corp., 401 Ill. App. 3d 1109, 929 N.E.2d 1257, 341 Ill. Dec. 178 (5th Dist. 2010) Plaintiff, a railroad worker s wife, filed suit against the defendant, CSX, alleging that the employer negligently failed to take precautions to protect the worker s family from take-home asbestos exposure. In her complaint, plaintiff alleged that her mesothelioma was caused by asbestos fibers in her husband s clothes. CSX filed a Motion to Dismiss for failure to state a claim and it was granted. On appeal, plaintiff claimed that there is a duty for an employer to protect a worker s family from asbestos exposure. The Court notes that this is a case of first impression in the State of Illinois. Defendant argued that the dismissal is appropriate because no Illinois court had previously held that employers owe a duty to the family of employees who are exposed to asbestos. Defendant argued that allowing the plaintiff s case to go forward against CSX would be creating a new cause of action. Plaintiffs argued that asking the courts to recognize a duty where there was no case directly on point was not the same as asking the court to find a new cause of action. The Illinois Supreme Court has expressed a broad view of what can be a duty. In determining the issue in this case, whether an employer owes a duty to family members of employees to prevent an asbestos exposure, the Appellate Court looked to the states of Tennessee and New Jersey for direction. Both of those states have held that a duty to prevent harm from take-home exposure can arise even in the absence of a special relationship. The Court next looked to the foreseeability of the injury. Again, the Court looked to a New Jersey case which stated that it is foreseeable that soiled work clothing would need to be laundered. It is also foreseeable that it would be a family member of an employee that would do that laundry. Defendants argued that they did not know of the dangers of take-home asbestos at the time plaintiff s husband worked for defendants. The Court held that the defendants should have foreseen the risk. The Court reversed and remanded back to the trial court. N-10

11 Matthew R. Booker - Partner Matt has spent his entire legal career with Heyl Royster, beginning in 2000 in the Springfield office. His practice focuses on healthcare law, representing physicians, hospitals, long-term care facilities, and other similar healthcare organizations. His defense of these entities involves a range of issues including licensure, discipline, fraud and abuse, risk management, staff concerns, and defense of malpractice and other civil litigation. With his extensive litigation experience, Matt has personally defended a variety of civil cases, taking more than 25 to verdict. In recent years, he has developed a special focus on long term care and nursing home litigation. Many of his cases are against top Chicago and national counsel with settlement demands often in the millions of dollars. Matt's experience in the healthcare arena is extensive. He began working in a hospital at the age of 15. After graduating from college, he began work as a registered nurse in a Central Illinois emergency room. While there, his responsibilities included charge nurse positions as well as house supervisor. Working as a nurse, he obtained trauma nurse specialist certification, was an advanced cardiac life support instructor and achieved certification in pediatric advanced life support. He also was directly involved in the training of paramedics at several level one trauma centers. Matt has also presented and lectured to various healthcare groups and other educational entities involving medical record privacy, nursing practice, and long term care litigation. He has also presented courses on evidence and evidence presentation. He has co-authored Smart Evidence, Medical Malpractice, and an evidentiary guide for medical malpractice cases. Recently he has been involved in presenting information to insurers and fellow litigators on the use of evidence in the courtroom obtained from social networking websites. Significant Cases Myers v. Heritage Enterprises, Inc., 354 Ill. App. 3d 241 (4th Dist. 2004) - Plaintiff claimed defendant long term care facility negligently transferred resident. Jury verdict for defendant. Howarter v. Petersen Health Care III, LLC, 235 Ill. 2d 587 (2010) - Plaintiff alleged negligent treatment of long-term care resident, including development of multiple Stage IV pressure ulcers. Jury verdict for defendant. Miller v. Rinker Boat Co., Inc., 215 Ill. 2d 599 (2005) - Wrongful death case filed by widow. Plaintiff brought products liability case against boat manufacturer alleging improper design and manufacture. Summary judgment for defendant, reversed on appeal. Schwalbach v. Millikin Kappa Sigma Corp., 207 Ill. 2d 627 (2004) - Wrongful death case filed by family of college student killed in a fraternity fire. Rice v. White, 374 Ill. App. 3d 870 (4th Dist. 2007) - Wrongful death case filed by family of teenage girl shot and killed at a party. Homeowner accused of negligent supervision. Verdict for plaintiff in amount of $700,000; on appeal, verdict reversed, judgment entered for defendant. Professional Associations American Bar Association Illinois State Bar Association Sangamon County Bar Association Adjuster's Association of Central Illinois (President 2010) Defense Research Institute Illinois Association of Defense Trial Counsel Association of Defense Trial Attorneys Court Admissions State Courts of Illinois United States District Court, Central and Southern Districts of Illinois Education Juris Doctor (Magna Cum Laude), Southern Illinois University School of Law, 1999 Bachelor of Science-Nursing, Illinois Wesleyan University, 1995 N-11 Learn more about our speakers at

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