August 2018 Case Notes & Comments

"We're all working together. That's the secret." ~ Sam Walton

MONTHLY QUIZ: Employee, a delivery driver, is responsible for delivering food products to customers by truck and unloading the products. Employee claims that while maneuvering a load inside his truck, he fell out of the truck and landed on both knees. Doctor#1, who performs surgery on Employee for a torn meniscus, also diagnoses Employee as having a degenerative knee condition. In the approximate 9-10 months following surgery, Employee is on and off of work due to his knee. After testing and an examination, Doctor #2 opines that while Employee does not require work restrictions as a result of his work accident, it would be reasonable to restrict Employee from work as a truck driver due to Employee's unrelated, degenerative knee condition. Consequently, Employer does not allow Employee to return to work as a truck driver but offers an alternative position as a security guard. Employee accepts the lower paying position, but files a grievance with the Union. Following a hearing where Employee admits that his knee is "as good as it was before," Arbitrator finds that Employee's torn meniscus is related, that the degenerative condition is unrelated and awards employee temporary total (TTD) and permanent partial disability (PPD) benefits and medical expenses. Both sides appeal. Is Employee entitled to a wage differential award? Is Employee entitled to PPD? Who is right? You be the judge. (Answer below).

COOK COUNTY COURT GRANTS LEF CLIENT A DIRECTED VERDICT AT THE TRIAL OF A COVERAGE CASE BASED ON THE EARTH MOVEMENT EXCLUSION: Congratulations to Robert Ostojic, who recently prevailed at trial on behalf of a property insurer of a commercial cold-storage warehouse. During trial, the insured claimed that a walk-in freezer door was inadvertently left open, which allowed humid air to enter one of the freezers.  Sometime thereafter, the insured noticed that the freezer floor had heaved, and submitted a property claim. The insurer's experts, however, determined that the cause of the loss was the freezing and expanding of the soil underneath the freezer. Consequently, the insurer denied coverage based upon a policy's "Earth Movement" exclusion. During Mr. Ostojic's cross-examination of the insured's three experts, the experts admitted that the cause of the loss was, in fact, the freezing and expanding of the soil beneath the freezer. Following the close of the evidence, the insured requested an award totaling more than $1M. Though the jury awarded a fraction of the requested damages, the trial court threw out the jury verdict and entered judgment in favor of LEF's client, the insurer. The trial court accepted LEF's position that the claimed loss fell squarely within the plain and unambiguous language of the policy's "Earth Movement" exclusion, which broadly excluded coverage for "rising or shifting soil caused by freezing or expansion."  The case remains pending on appeal.  4220 Kildare, LLC v. Regent Insurance Company, 16 L 10618 (Aug. 2, 2018, Cook).

LEF OBTAINS SUMMARY JUDGMENT IN SEXUAL ASSAULT CASE: Congratulations to John O'Donnell, Sr., Sara E. Spratt and John O'Donnell, Jr. who recently obtained summary judgment for the client, a sailing club. The sailing club operated a bar during a sailing regatta, and during discovery it was revealed that it had violated its liquor license by selling alcohol outside the confines of its building.  At some point during the regatta and related social events, the plaintiff (a minor) alleged that she was sexually assaulted by another regatta participant.  The plaintiff sued the sailing club, the alleged assailant and another regatta sponsor, alleging, among other things, negligence and premises liability.  While businesses invite patrons onto their premises and therefore undertake a duty to provide reasonably safe premises, the undertaking of such a duty does not extend to unforeseeable criminal acts. Mr. O'Donnell highlighted the fact that there was no evidence that the sailing club served the participant with alcohol, was aware of participant's allegedly intoxicated state, or knew that any of the regatta competitors had any violent propensities. In so doing, Mr. O'Donnell successfully convinced an Ohio state court that the sailing club had no duty to protect regatta participants from allegedly intentional and criminal acts because they were unforeseeable. Furthermore, the trial court also agreed and found that the alleged criminal sexual assault was not a natural and probable consequence of the sailing club's technical liquor license violation. Essi v. Shockey, et al, Case No. 16CVH-4365 (Jul. 24, 2018, Franklin County, OH).

MODIFICATION OF PRODUCT ABSOLVES MANUFACTURERS' LIABILITY: Plaintiff-Employee filed suit against manufacturers of an electric pallet jack, alleging that, while operating the pallet jack at work, the equipment stopped suddenly and caused an injury to her right shoulder. Employee alleged strict products liability and negligence in the design of the pallet jack.  The parties learned during expert examination that a coworker of Employee inverted the pallet jack's brake cam, a component of the braking system, which caused the brakes to be applied in a manner that was not intended. Employee asserted that manufacturers should have foreseen that operators could and would invert the cam under normal use. Employee appealed following the trial court's grant of summary judgment in favor of manufacturers. The appellate court affirmed, reasoning that the inversion of the brake cam constituted a "modification" of the pallet jack, and that it was not foreseeable that the brake cam would be inverted. The appellate court further noted that a manufacturers  cannot generally be held liable for the negligence maintenance of its product.  The courts further found no proximate cause, as Employee failed to present sufficient evidence that the inverted brake cam, which expert testing demonstrated increased the range in which the jack was operable, caused the jack to stop suddenly and injure her arm.  Pommier v. Jungheinrich Lift Truck Corporation, 2018 IL App (3rd) 170116 (Feb. 28, 2018).  

ANSWER TO QUIZ: Employee is not entitled to a wage differential award. Section 8(d)1 of the Act provides that injured employees are entitled to wage differential benefits if they are "as a result" of a work related "accidental injury." Here, Employee's wage claim was based primarily upon Employer's refusal to allow him to return to work as a delivery driver. Further, Employee admitted that he was not medically restricted from such work and his knee was "as good as" before the incident. While there was evidence to support the position that Employee's work accident and degenerative knee condition are not related, there is also sufficient evidence to otherwise support the arbitrator's award. Sysco Food Service Of Chicago v. The Illinois Workers' Compensation Commission, et al., 2017 IL App (1st) 170435WC (Dec. 22, 2017).

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