February 2017 Case Notes & Comments

"If you don't know there's a trampoline in the room, you're not going to dust the ceiling for prints. ~ quote from "Law & Order"

MONTHLY QUIZ: Pedestrian is walking next to a gas station under construction when he hears skidding tires and turns to look behind him. Turning causes Pedestrian to step off the sidewalk into the construction area and Pedestrian "suddenly and without warning" falls "violently into a hole, sustaining serious injuries." Plaintiff sues Contractor building gas station for negligence and Owner for negligence and negligent hiring and supervision. At deposition, Pedestrian admits that the condition is open and obvious. Owner and Contractor move for dismissal, but Pedestrian argues that the distraction exception applies. The distraction exception applies in special circumstances where a foreseeable distraction causes a person to be distracted. Is skidding tires a foreseeable or commonplace distraction? Does the distraction exception apply under these circumstances? You be the judge. (Answer below) 

LEF SUCCESSFULLY ADVOCATES FOR CLIENT IN THE ILLINOIS SUPREME COURT: On December 15, 2016, Gerard A. Fosco of Leahy, Eisenberg & Fraenkel, Ltd. appeared before the Illinois Supreme Court on behalf of his client, a home inspector and repairman, in the case Schweihs v. Chase Home Finance, LLC, et al., arguing the continued viability of the "impact rule", which is a requirement for alleged victims of emotional distress. Illinois' high court agreed with Mr. Fosco and affirmed the dismissal of the plaintiff's claims. The defendants timely filed a petition for rehearing, which is presently under consideration in the Illinois Supreme Court.

PREMISES LIABILITY - TENANT OWES NO DUTY WHERE LANDLORD IS RESPONSIBLE FOR MAINTENANCE / REPAIRS:  Just after getting fired, Beautician, who had been working as an independent contractor at a retirement community salon, began closing her work station and was injured when a hinged countertop fell onto her head/neck because the locking mechanism failed.  Beautician sued Operator of the retirement community and the operator of the salon ("Salon").  Salon moved for summary judgment, arguing that it did not have an ownership interest in the premises or the fixtures, and therefore owed no duty to Beautician.  The trial court granted Salon summary judgment, citing the lease agreement which provided that Operator, not Salon, was responsible for any repairs of any damage to the fixtures on the premises.  Beautician appealed, but the Appellate Court affirmed, reasoning that only the party in control of the premises can be held liable for a defective or dangerous condition on the premises.  Further, the Court noted that, even though a landlord is not generally liable for injuries caused by a defective or dangerous condition on premises leased to a tenant and under the tenant's control, an exception applies when the landlord expressly agrees to keep the premises or parts in good repair or voluntarily assumes the maintenance obligation by its conduct.  Here, the Court found that, pursuant to the terms of the lease, Salon did not have control of the repair and maintenance of the countertops, and therefore did not owe a duty to Beautician. Additionally, the Court found no evidence that Salon had actual or constructive notice of any defect, thus warranting summary judgment. Hanna v. Creative Designers, Inc., 2016 IL App (1st) 143727) (Nov. 30, 2016).

WORKERS COMPENSATION - UM SETOFF PROVISION DID NOT VIOLATE WC ACT: Following an accident that occurred in the course and scope of her employment, Employee received more than $400,000 benefits under the IL Workers' Compensation (WC) Act (Act)( 820 ILCS 305/1-30). In addition, Employee sought benefits from Insurer under an uninsured motorist (UM) Policy. The UM Policy included a provision (Setoff Provision) stating that "amounts payable for damages" under UM Policy coverage "will be reduced by... amounts paid or payable" under the Act. Insurer argued that it was entitled to summary judgment because Employee had already collected WC benefits in excess of the UM Policy's $250,000 per person limit. The trial court granted Insurer summary judgment. On appeal, Employee argued, among other things, that: 1) the medical payments made by Employer directly to medical providers under the Act were not "for" Employee, but rather Employer's benefit, and therefore not subject to the Setoff Provision; and, 2) the Setoff Provision violated the Act and was unenforceable. The appellate court disagreed with Employee, noting that under Section 8(a) of the Act, non-disputed medical payments made by Employer directly to providers were made "on behalf of" Employee. In addition, the appellate court determined that the Setoff Provision was valid, holding that such clauses were generally enforceable and entirely consistent with Section 5(b) of the Act and Illinois public policy. Country Preferred Insurance Co. v. Groen, 2017 IL App (4th) 160028 (Jan. 27, 2017). 

ANSWER TO QUIZ: Defendants win, Pedestrian's case was properly dismissed by the trial court. Courts will find a distraction foreseeable only if there are special circumstances, of which a reasonable landowner would be aware, that would cause persons to be distracted. Here, the distraction of a braking sound behind a pedestrian as he walks along a street is commonplace and not a special circumstance. Moreover, while not by itself decisive, there was no evidence or allegation that Defendants contributed to the distraction, which weighs heavily against foreseeability. Peters v. R. Carlson & Sons, Inc., 2016 IL App (1st) 153539 (Jan. 4, 2017).

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