December 2019 Case Notes & Comments

Every piece of the universe, even the tiniest little snow crystal, matters somehow. I have a place in the pattern, and so do you. Thinking of you this holiday season!" ~T.A. Barron

MONTHLY QUIZ: Clark W. Griswold and Grinch are both members of the same social club, which is presided over by Santa. One afternoon, Grinch and Santa appear at Griswold's house with equipment to cut a tree limb in the front yard - even though neither was invited and both had been told not to come. Griswold, who was mowing in the backyard, comes to the front of the house and tells the men to stop because the limb is too high and the work too dangerous. Grinch and Santa ignore Griswold's statement and eventually,Griswold assists the two in their efforts. Two ladders are tied together with wire and placed against the limb that is to be cut. Grinch ascends the tied ladders in dress shoes and begins cutting the limb with an electric chainsaw. When Grinch cuts the limb, the limb hits the ladder and causes Grinch to fall. Grinch sues Griswold for ordinary negligence (e.g. failure to supervise, provide proper tools), but not premises liability. Griswold files affirmative defenses alleging Grinch's contributory negligence and alleging the open and obvious condition of Grinch cutting the tree limb that was supporting the tied-together ladders Grinch was standing upon. The trial court grants Griswold's summary judgment on the grounds that the condition was open and obvious and Grinch appeals. Grinch argues that the open and obvious rule applies only to premises and product-liability cases? Even if applied, is this a proper ground for dismissal on summary judgment? Do any exceptions apply? You be the judge. (Answer below). 

LEF CAR WASH CLIENT FOUND NOT LIABLE FOR ALLEGED SCRATCHES TO CAR: Congratulations to Patrick Cullinan who prevailed at trial on behalf of his client, a Car Wash, located in East Chicago, Indiana. Plaintiff, the car Owner, claimed that the Car Wash's equipment severely scratched both sides and the hood of his car. At trial, Owner presented photographs taken at the time of purchase, depicting no damage, as well as allegedly post-wash photographs, purportedly showing damage. In defense of Car Wash, Mr. Cullinan presented the testimony of the Car Wash representatives, who testified that they checked the brushes of the car wash at the time of the alleged incident and found them to be without defect or frozen substances. Mr. Cullinan also introduced examples of the wash brush components, which consisted entirely of soft cloth materials, but no metal or plastic parts. Finally, Mr. Cullinan presented documents proving that over 1000 cars had been through the car wash within the five days before, the day of, and the two days after, the incident and that there were no complaints by anyone other than the plaintiff-car Owner. At the conclusion of the trial, the court found in favor of Car Wash, noting that the most compelling evidence was the number of cars that had been through the wash, commenting that it was difficult to conceive that the plaintiff's car alone would have been damaged, as claimed. Sean Keilman v. Herinder Singh Toor, Case No. 45 D09-1903-SC-001612 (Lake County, Indiana).

FOOD PANTRY PATRON LOSES PREMISES LIABILITY CLAIM AS TO CONDITION OF COMMON AREA:  Plaintiff visited a food pantry located in the basement of a church building to pick up a box of food.  As he was leaving through the front doorway, through which he had originally entered, he failed to observe the 10-11 inch drop-off from the threshold of the doorway, causing him to stumble forward, striking his head and face on the ground outside. The food pantry leased a portion of the church basement. The lease provided a non-exclusive right and license over access areas (including hallways, stairways and ingress/egress), but provided that such areas were subject to the rules and regulations of the archdiocese. Further, the church's maintenance department maintained the foundation of the building, asphalt landing, and areas outside of the doorway. Plaintiff filed a premises liability action against the food pantry, and the food pantry moved for summary judgment.  The court properly granted the food pantry's motion, holding that where, as here, only a portion of the premises is rented and the landlord retains control, the lessee is immune from premises liability related to the condition of the common area under the landlord's control. Additionally, the court also properly granted the archdiocese's motion for summary judgment, holding that the 10-year statute of repose for construction barred Plaintiff's claim. Graham v. Lakeview Pantry, 2019 IL App (1st) 182003 (Sept. 24, 2019).

PEDESTRIAN SURVIVES SUMMARY JUDGMENT ON TRIP AND FALL:  Plaintiff was injured when she tripped and fell on an uneven seam in a sidewalk in the Village of Oak Park.  She filed a premises liability action alleging negligent maintenance.  The trial court granted the Village's motion for summary judgment on the basis that the defect was de minimus, and the Plaintiff appealed.  The First District Appellate Court reversed, finding that there was a genuine issue of material fact regarding the size of the elevation deviation between the two sidewalk squares (Plaintiff testified a deviation over two inches, while the Village testified it was between 1.25 and 1.5 inches), whether the municipality had constructive notice of the deviation (a neighbor testified that Village employees had been at the site over 10 times in the prior years), and there was evidence of aggravating circumstances (poor lighting conditions and heavy foot traffic) which therefore created a question for the jury.  Cook v. Village of Oak Park, 2019 IL App (1st) 190010 (Nov. 19, 2019). 

SUDDEN AND TARGETED MURDER NOT REASONABLY FORESEEABLE TO ESTABLISH DUTY BY RESTAURANT TO PREVENT ATTACK:  While dining at a restaurant, a customer was stabbed and killed.  The decedent's estate filed a wrongful death action against the restaurant, alleging that it failed to provide proper security to prevent the death.  Generally, there is no duty imposed on a landowner to protect others from criminal attacks by third persons on their property. A duty may arise, however, if circumstances such as prior incidents give the owner knowledge of the danger facing patrons. The relevant inquiry is whether the criminal activity was reasonably foreseeable to the business. The trial court concluded that the stabbing at issue was a sudden, unforeseeable, targeted murder.  The assailant, unknown to the restaurant employees, entered, did not make any purchase, and spoke directly with the decedent before the attack.  He then stabbed the decedent and fled the premises.  Although Plaintiff presented evidence of prior disturbances at the premises (20 documented calls to police in the prior five years), none were remotely similar to the subject incident.  Accordingly, summary judgment was properly granted in favor of the restaurant, on the basis that the murder was not reasonably foreseeable, and therefore no duty was owed by the restaurant to prevent the decedent's death.  Witcher v. 1104 Madison St. Rest., 2019 IL App (1st) 181641 (Oct. 7, 2019).

ANSWER TO QUIZ:  Griswold wins, Grinch loses. To prove negligence, the plaintiff must show, among other things, the existence of a duty. In general, Illinois landowners have a duty to warn or protect invitees of known or reasonably discoverable, dangerous conditions upon their land in situations where the invitee will not discover or realize the danger. The open and obvious doctrine, which provides that a landowner is not liable to invitees for physical harm caused by activities and/or conditions whose danger is known or obvious, is an exception to a landowner's duty of care. Thus, Grinch's contention - that the open and obvious rule applies only to premises and product-liability cases - was not correct. Moreover, neither of the two exceptions to the open and obvious rule (i.e. the "distraction exception" or the "deliberate encounter exception") apply to these facts.  Kun Mook Lee v. Young Rok Lee, 2019 IL App (2d) 180923 (Sep. 3, 2019). 

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