January 2014 Case Notes & Comments

“Strive not to be a success, but rather to be of value” ~ Albert Einstein

MONTHLY QUIZ: Plaintiff falls and injures her wrist during a personal training session. Plaintiff sues her Gym and its employee, Personal Trainer, alleging that Trainer negligently instructed Plaintiff to perform a dangerous exercise and use certain equipment in an unsafe manner. However, since Plaintiff agreed in her membership agreement with Gym to “assume all risks of personal injury …  including risk associated with fitness classes and equipment, sports exercise, all locker room facilities and fitness advisory services”, Gym and Trainer move for summary judgment. Does the membership agreement with Gym govern personal training sessions? Does public policy allow such agreements? You be the judge. (Answer below)

ILLINOIS SUPREME COURT / WORKER'S COMPENSATION / TRAVELING EMPLOYEES: Employee was injured on the way to work on a temporary job at a jobsite located about 200 miles from his home and 30 miles from the motel where he was staying.   Employee sought workers’ compensation benefits, which the WC insurer denied on grounds that he failed to show that the injury arose out of and in the course of his employment. While the general rule in workers’ compensation is that an employee injury incurred in going to or returning from the worksite is not compensable, being viewed as not arising out of or in the course of employment, there is an exception for “traveling employees.” However, various interpretations have arisen concerning the application of this exception among Illinois courts. Affirming the Trial Court and reversing the Appellate Court, the Illinois Supreme Court found that the denial of benefits was proper since: 1) Employer did not direct Employee to accept the job at this location; 2) Employee accepted the job with full knowledge of the commute involved; 3) Employees’ course or method of travel was not determined by the demands and exigencies of the job; and, 4) Employee was not reimbursed for travel expenses or travel time or told what route to take. The Venture-Newberg Perini Stone & Webster v. Illinois Workers' Comp. Comm'n, 2013 IL App (1st) 115728 (Dec. 19, 2013)         

CONSTRUCTION NEGLIGENCE / CONTRIBUTION: Plumber was injured while building the Trump International Hotel & Tower when he fell through an infill (i.e., a gap) in the floor that had not yet been “infilled” with concrete. Plumber sued Construction Manager (Manager) and General Contractor (GC) who, in turn, filed contribution claims against Subcontractor, a company who agreed under a contract to “design, engineer, detail, fabricate, deliver and lease (or sell) to Contractor” all the concrete forms used to make the floors. Manager and GC argued that the contract language also required Subcontractor to “design, draw, and provide support for the infill areas,” not just the floors. Finding the contract ambiguous, the Court looked to extrinsic evidence and considered past dealings between the GC and Subcontractor, the lack of requests for infill support and the parties' performance on the Trump project. Finding no evidence that Subcontractor had a duty to provide designs or other support for the infill areas, the grant of summary judgment dismissing Manager and GC’s contribution claims was affirmed. Gomez v. Bovis Lend Lease, Inc. , 2013 IL App (1st) 130568 (Dec. 14, 2013)

LEAHY, EISENBERG & FRAENKEL ATTORNEYS DESIGNATED ILLINOIS SUPER LAWYERS: Leahy, Eisenberg & Fraenkel is pleased to announce that five of its attorneys, Kevin Carlson, Steve Frew, Roland S. Keske, Robert Ostojic and Scott Wing, were recently included on the 2014 Illinois Super Lawyers® list.

LEF’S WIN ON APPEAL BECOMES FINAL:  The appellate victory by Edward J. Leahy and Roland S. Keske that we reported in our December issue became final on January 1, 2014.  The time for further appeal has passed, and no further appeal has been filed, so the case is over.  Ed Leahy successfully argued that the client-insured, a security company, had no duty to inspect, stop or report the delivery of the propane tanks which caused a $14.5 million building explosion. Likewise, there were no facts that could be narrowly construed to impose a voluntary undertaking of such duties upon the security company. St. Paul Mercury Insurance v. Aargus Security Systems, Inc., 2013 IL App (1st) 120784 (Dec. 10, 2013) 
LEF PREVAILS BEFORE NATIONAL ARBITRATION FORUM: Howard Randell and Davis Kim recently obtained a ruling in their client’s favor before the National Arbitration Forum.  The dispute centered on determining the proper measure of damages for goods lost in transit.  The shipper argued that the limitation of liability provision in the shipping contract was unenforceable, and that the recoverable damages were 10 times the contract’s limits of liability. The Arbitrator held that the shipper’s damages were properly capped, in finding that the carrier had complied with all federal statutes and regulations to limit its liability. Jujuoliu Kuita v. Planet Moving & Storage, Inc., Nat’l Arb. Forum Case No. MX1208002237587

ANSWER TO QUIZ: Gym and Trainer win. The Court found that the plain meaning of the phrase “fitness advisory services” included a broad range of services such as personal training sessions. Further, though exculpatory clauses exempting liability for negligence are generally disfavored, there were no facts or circumstances present that should have voided the membership agreement on public policy grounds. Cox v. US Fitness, LLC, 2013 IL App (1st) 122442 (Dec. 18, 2013)

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