August 2021 Case Notes & Comments

"The gem cannot be polished without friction nor man without trials." ~ Confucius

MONTHLY QUIZ: Driver is involved in a minor fender-bender with another vehicle, who calls the police. Village Officer responds. Driver claims that Officer should have stopped him at the scene as he was exhibiting “clues of intoxication”. Officer does not notice whether Driver is intoxicated and after obtaining his license, registration and insurance card, does not investigate further and allows Driver to leave the scene. About 20 minutes later, Driver falls asleep at the wheel, leaves the road and hits a pole. Upon transport to the hospital with injuries, Driver exhibits a blood alcohol concentration of 0.24. Driver sues Village and Officer for negligence, contending that the failure to properly investigate was wilful and wanton conduct. Driver also alleged that Officer failed to arrest him and take him into custody. Village and Officer move for dismissal, based on lack of duty and for the immunities afforded under the Local Government and Governmental Employees Tort Immunity Act (“Tort Immunity Act” or “Act”)(745 ILCS 10/ (West 2016)). Are Village and Officer immune under the Act? Were Officer’s omissions wilful and wanton conduct? Did Officer have a duty to investigate? Who is right? You be the judge. (Answer below).

DENIAL OF CLASS CERTIFICATION AFFIRMED ON APPEAL IN THIRD CIRCUIT - Thomas A. Gamache, Adam L. Fraenkel, and Daniel J. Offenbach were successful before the United States Court of Appeals for the Third Circuit in defending an appeal of a denial of class certification. Plaintiffs suffered property damage following a fire caused by a nearby lightning strike. Plaintiffs alleged the fire was caused by defective gas piping installed in the property, claiming that it caused the structure to be electrically energized such that the energy created a hole in the piping, resulting in fire. Plaintiffs sought nationwide and state-specific class certification on behalf of property owners in which the gas piping was installed; LEF, representing the manufacturer of the gas piping, opposed class certification. The District Court for the Western District of Pennsylvania denied Plaintiffs’ motion for class certification, ruling that Plaintiffs had failed to meet the standards for class certification under Federal Rule of Civil Procedure 23. The Third Circuit granted Plaintiffs’ Rule 23(f) petition for permissive appeal but, following hearing, affirmed the District Court, agreeing that Plaintiffs had failed to satisfy necessary elements of Rule 23, thereby precluding class certification.            

WORKERS’ COMPENSATION – VOCATIONAL REHABILITATION ASSESSMENT: Appellant-Employer (Respondent), a retail computer company hired Appellee-Employee (Petitioner), as a warehouse picker in 1999. In 2003, Petitioner injured her low back, and eventually had surgery and permanent restrictions. Petitioner’s surgeon and Respondent’s IME agreed with the need for surgery, as to Petitioner’s permanent restrictions and that Petitioner could not return to her pre-injury employment. Petitioner’s vocational expert found Petitioner could not return to any employment based on several factors including her lack of prior experience or computer skills and inability to speak English. Respondent’s vocational expert found Petitioner could work in several capacities with her permanent restrictions based on her work experience, transferable skills, knowledge of social applications and email software, and some prior college classes. The Arbitrator found petitioner’s expert credible and awarded Petitioner total and permanently disabled benefits on an “odd lot” theory. Respondent submitted the matter to the Commission who, upon de novo review, found Respondent’s vocational expert more credible than Petitioner’s vocational expert. The Commission found Petitioner employable and awarded 60% MAW. Petitioner reviewed the matter to the Circuit Court who reinstated the Arbitrator’s decision because the Commission award was against the manifest weight of the evidence. On further review, the Appellate Court reinstated the Commission decision as the finding that Respondent’s vocational expert more credible was not against the manifest weight of the evidence. The court reinstated the portion of the Commission award that reversed the Arbitrator’s award that found Petitioner was totally and permanent disabled on an “odd lot” theory. The Appellate Court also remanded the matter back to the Commission for a vocational rehabilitation assessment because the Act requires a vocational assessment when a petitioner cannot return to her regular and customary employment.  CDW v. Illinois Workers' Comp. Comm., et al., 2021 IL App (2d) 200562WC-U (Aug. 13, 2021).       

SUBROGATION – TENNESSEE SUPREME COURT ADOPTS NARROW FRAUD EXCEPTION TO ECONOMIC LOSS RULE: Motor Carrier purchased 243 commercial trucks from independent Dealership, which trucks were built by Manufacturer. After the sale, the trucks allegedly experienced premature failures. Carrier sued Dealership and Manufacturer for breach of contract and warranties, common law and statutory fraud and negligent misrepresentation, alleging that the trucks were “not as reliable as represented.” The trial court dismissed Carrier’s negligent misrepresentation claim, concluding it was barred by the “economic loss doctrine.” The “economic loss doctrine” is a judicially created rule that since 1965, has been increasingly raised in defense of tort subrogation claims. Generally understood, the doctrine prevents contracting parties from pursuing tort recovery from one another for “purely economic” or commercial losses, associated with the contract relationship. At present, the overwhelming majority of jurisdictions have adopted the economic loss doctrine, though many variations and nuances exist. Since 1995, courts have begun to consider how and whether the economic loss rule applies to fraud claims. Three approaches have emerged: 1) the “strict approach” - which bars all fraud claims; 2) the “broad fraud exception” - which permits fraud claims and is the current majority approach; and, 3) the limited or narrow fraud exception – which considers whether the fraud is “extraneous to” or “interwoven with” the contract. In a question of first impression, the TN Supreme Court adopted the narrow fraud exception, holding that when a fraud claim seeks recovery of only economic losses and is premised solely on misrepresentations or nondisclosures between sophisticated commercial parties about the quality of goods that are the subject of a contract, the economic loss doctrine applies. The high court ruled that the narrow fraud exception struck the proper balance between two concepts “crucial to Tennessee law,” freedom of contract and abhorrence of fraud. Dismissal of Carrier’s negligent misrepresentation claim affirmed. Milan Supply Chain Solutions, Inc. f/k/a Milan Express, Inc. v. Navistar, Inc. et al., Case No. C-14-285 (S.Ct. Tenn, Aug. 2, 2021).

MOTOR VEHICLE ACCIDENT WARRANTS CLARIFICATION OF THE INTERPLAY BETWEEN VARIOUS SECTIONS OF THE CONTRIBUTION ACT: Plaintiff was driving through a construction zone when the construction flagger abruptly turned the traffic sign to “STOP”, causing plaintiff to slam on his brakes and to be rear-ended by the tractor trailer behind him. Plaintiff filed suit against the driver of the tractor-trailer, who in turn filed third-party contribution claims against the construction site’s general contractor and safety subcontractor. The plaintiff settled with the driver and the general contractor, and the case proceeded to trial on the driver’s contribution claim against the safety subcontractor. The verdict form listed the driver, the general contractor, and the safety subcontractor, and the jury apportioned fault among all three. The driver argued that, because the general contractor had previously settled with the plaintiff, the share of fault attributable to it should be deemed “uncollectible” and re-allocated between the driver and the safety contractor. Based on its interpretation of the Contribution Act, the trial court denied this request. On appeal, the Illinois Supreme Court analyzed Sections 2 and 3 of the Contribution Act: Section 2(b) provided that a tortfeasor need not pay more than its own share of the common liability; Section 2(d) provided that a settling tortfeasor is “discharged” from contribution liability to another tortfeasor; Section 3 provided that “if the obligation of one or more of the joint tortfeasors is uncollectible”, the unpaid portion of the uncollectible obligation would be paid on a pro rata basis by the remaining tortfeasors. The Court found that a “discharged” obligation was distinct from an “uncollectible” obligation, and that, therefore, the assigned share of liability of the settled general contractor should not be re-allocated. Roberts v. Alexandria Transportation, Inc., 2021 IL 126249 (6-17-21).

ANSWER TO QUIZ: Officer and Village are immune. Driver loses. In this case, Driver argued that the dispute should focus on Officer’s failure to investigate and enforce the law and thus, Section 202 of the Tort Immunity Act applied. Section 202 provided only qualified immunity for Officer in the commission of an “act or omission in the execution or enforcement of any law”, but did not apply in cases of “willful and wanton conduct.” Section 4-102, which relates to a failure to provide adequate police protection or services and Section 4-107, which relates to the failure to make an arrest, both provide absolute immunity. There is no exception for wilful and wanton conduct. The appellate court, however, found that Driver’s case was “really about” Officer’s alleged failure to arrest Driver for his own criminal conduct and therefore, Sections 4-102 and 4-107 applied. Village and Officer had complete immunity. Given the finding of immunity, the appellate court did not reach the issue of duty. Further, in reaching this result, the appellate court stated that since Driver admittedly “chose to place himself in a position to be injured, we must leave him there.” Rodriguez v. Village of Park Forest, 2021 IL App (1st) 201269-U (Aug. 19, 2021).


Past Publications


June 2024
May 2024
March 2024
January 2024


December 2023
October 2023
September 2023
August 2023
May 2023
March 2023
February 2023


December 2022
October 2022
August 2022
July 2022
April 2022
March 2022
January 2022


December 2021
October 2021
August 2021
July 2021
May 2021
April 2021
March 2021
January 2021


December 2020
November 2020
October 2020
September 2020
August 2020
February 2020
January 2020


December 2019
October 2019
September 2019
July 2019
May 2019
March 2019
February 2019
January 2019


December 2018
October 2018
August 2018
June 2018
May 2018
April 2018
March 2018
February 2018


December 2017
November 2017
October 2017
September 2017
August 2017
July 2017
June 2017
May 2017
March 2017
February 2017


December 2016
October 2016
September 2016
August 2016
July 2016
June 2016
March 2016
January 2016


December 2015
September 2015
August 2015
July 2015
June 2015
May 2015
April 2015
March 2015
February 2015
January 2015


December 2014
October 2014
September 2014
July 2014
June 2014
April 2014
April 2014
March 2014
February 2014
January 2014


December 2013
November 2013
October 2013
September 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
January 2013


December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012


December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011


December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010


December 2009