April 2015 Case Notes & Comments

"All hockey players are bilingual. They know English and profanity." ~ Gordie Howe

MONTHLY QUIZ: During team summer camp, Coach tells football Player and his teammates to run from the locker room to the practice field. While running, Player trips on a bumper in the shot-put pit area, falls and sustain injuries. Player sues School and others for negligence and willful and wanton conduct, alleging that School's failure to mow the grass in the track and field area constitutes "reckless disregard for [his] safety." School argues that it is immune from liability under Section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-106) because the field is used for recreational purposes, not educational purposes. The Parties disagree as to whether Coach told the team to take a specific route on the way to the field, and as to whether the Act applies. Trial Court holds that School is immune under the Act and dismisses Player's case. Player appeals. Given the dispute over the instructions, should Trial Court have dismissed Player's willful wanton case against School? Does the Act apply to provide School with tort immunity? You be the judge. (Answer below).

PREMISES LIABILITY / OPEN AND OBVIOUS / DISTRACTION EXCEPTION: Plaintiff, a real-estate Appraiser, was taking measurements of a residential property.  Upon entering the backyard, Appraiser observed a 5 ½ foot retaining wall extending out perpendicular from the rear of the house.  Both the ground and the top of the retaining wall were covered in heavy snow.  Appraiser measured the low side of the house to the retaining wall, and then proceeded to measure the high side of the house to the retaining wall.  While simultaneously trying to keep his measuring tape level and looking for the edge of the retaining wall, Appraiser stepped off the top of the retaining wall, falling and injuring his back.  Defendants, homeowners, moved for summary judgment on the basis that the retaining wall was open and obvious, precluding liability.  Appraiser argued that the distraction exception applied to negate the open and obvious doctrine.  The Court held that a plaintiff should not be allowed to recover for self-created distractions that a defendant could never reasonably foresee---here, Appraiser's "distraction" was his performing measurements, which the homeowner Defendants would assume he could perform safely.  Further, the Court held that Appraiser's inability to find the edge of the retaining wall was not caused by a "distraction", but by natural conditions, i.e., the snow cover and bright sunlight.  Lucasey v. Plattner, 2015 IL App (4th) 140512 (Mar. 16, 2015).

APPRAISAL - AWARD NOT BINDING ON INSURED: Insured Property Owner submitted claim for damage to her home and personal property as a result of a fire which destroyed the attached garage at the insured property. Insurer prepared an estimate for repair of the damage and provided Insured with the name of a contractor; however, neither Insurer's designated contractor, nor any contractor contacted by Insured would perform the repairs for the estimated amount. Insured subsequently invoked the policy's appraisal condition. At appraisal, when the two party appraisers could not reach an agreement, the umpire issued an award to Insured which was reported to vastly undervalue the full damage to the property, as Insured had already completed substantial repairs prior to appraisal. Insurer subsequently issued payment based on the award for the purported actual cash value of the damage. Insured then filed suit for breach of contract and insurer bad faith. Insurer moved to dismiss the claims, arguing that the appraisal award was binding on the parties and foreclosed any subsequent suit. The court denied Insurer's motion, noting that the language of the specific appraisal provision in the subject policy did not explicitly state that an appraisal award would be binding on the parties, or that a party's invocation of the appraisal condition would operate as a waiver of its right to file suit. As such, the court held that Insured was not bound by the appraisal award and was allowed to proceed with litigation. Torres v. Allstate Indem. Co., No. 14 C 2830, 2015 WL 920978 (N.D. Ill. Mar. 2, 2015). 

NEGLIGENCE - TRANSPORTATION BROKER LIABILITY: While making an illegal U-turn, Truck Driver steered his tractor-trailer into another vehicle, killing Victim. At the time of the collision, Driver was an employee of Carrier who, in turn, was transporting contents as an independent contractor for Logistics Company.  Victim's Estate sued Driver, Carrier and Logistics Company, alleging that the Logistics Company negligently hired, retained, and supervised the Contractor and Driver. The contract between Carrier and Logistics Company detailed the Company's role as a "transportation broker," and the Carrier's role as an "independent contractor." Logistics Company did not own, operate, or lease any of its own vehicles or equipment, nor did the company hire, train or license any of the truck drivers. The trial court granted Logistics Company summary judgment on the grounds that the company had no control over Carrier or Driver. In analyzing whether Logistics Company "knew or should have known" that Carrier and Driver were unfit, the appellate court considered Carrier's prior incident record, Carrier's federal licensing and "satisfactory" safety rating and Driver's lack of traffic tickets or moving violations. The courts also considered the condition of the equipment and vehicles. HELD: Summary judgment affirmed. Hayward v. C.H. Robinson Co., Inc., 2014 IL App (3d) 130530 (Dec. 9, 2014).

INDIANA NEWS: Leahy, Eisenberg & Fraenkel, Ltd. is pleased to announce that Matthew S. McLean recently joined the Indiana Roll of Attorneys and is now licensed to practice law in Indiana. Matthew works primarily in the Firm's General Liability and Subrogation practice groups.

ANSWER TO QUIZ: The Trial Court should not have dismissed Player's case. Summary judgment should only be granted where there are no genuine issues of material fact. Here, there were factual disputes concerning the route team took when running to the field and whether Coach directed Player to run in a particular direction. With regard to the Act, Section 3-106 of the Act provides immunity to public entities from liability for conditions existing on public property used for "recreational purposes," such as parks and playgrounds, unless "guilty of willful and wanton conduct", proximately causing an injury. Because there were open questions as to whether the field was used for recreational and/or educational purposes and questions regarding whether Coach knew about the dangerous condition the bumper presented, the Appellate Court could not reach the issue of tort immunity under the Act. Peters v. Herrin Community Unit School District No. 4, 2015 IL App (5th) 130465 (Feb. 27, 2015).

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