July 2014 Case Notes & Comments

“The way to get started is to quit talking and start doing.” ~ Walt Disney

MONTHLY QUIZ: Employee of Real Estate Broker shows Plaintiff, a potential buyer, the property, subject to a listing agreement between Broker and the Homeowner. During the showing, Plaintiff decides to take a look at the basement. While walking downstairs, the basement staircase collapses and Plaintiff is injured. Plaintiff sues multiple parties for negligence, including Broker and Homeowner’s real estate agent. Broker moves for summary judgment based upon lack of duty. Plaintiff argues that in order to protect prospective buyers, Broker had a duty to maintain and control the premises and inspect the house for safety hazards. Who is right? You be the judge. (Answer below).

HOA-DUTY TO PAY ASSESSMENTS CANNOT BE ANNULLED, VACATED, DEFEATED OR INVALIDATED.  Condo Association brought action against Unit Owner under Forcible Entry and Detainer Act (735 ILCS 5/9-111, “Act”) after Owner allegedly failed to pay assessments.  Owner filed affirmative defenses for breach of covenant and setoff, alleging that Association breached its duty to maintain the common elements, specifically the roof directly above her unit which caused water damage. Based on these same allegations, the Owner alleged she was entitled to a set-off against any money judgment entered against her. Owner also filed a counterclaim seeking money damages for the allegations raised in her affirmative defenses.  The court severed her counterclaim, which was not germane to the proceeding as required by the Act. A divided Illinois Supreme Court held that a unit owner’s obligation to pay assessments is not akin to a tenant’s purely contractual obligation to pay rent, which may be nullified because the other party failed to perform. The different treatment that the Act accords to leased property versus condominium property underscores that the landlord-tenant relationship and the association-unit owner relationship are not analogous, and that the defenses available to a tenant are not necessarily available to a unit owner. A lease is governed by contract law, but an association-unit owner relationship is governed by the Condominium Act.  When reading provisions of Sections 9 and 18 of the Act together, the Court found that Owner’s liability for unpaid assessments was not contingent on Association’s performance. Owner could not avoid her duty to pay assessments, and Association could not refrain from enforcing that obligation. Spanish Court Two Condo. Ass’n v. Carlson, 2014 IL 115342 (Mar. 20, 2014)

WORKERS’ COMPENSATION - REACHING INTO BOX FOUND TO BE COMPENSABLE: Employee inspected parts, which weigh between 12 and 20 pounds, to ensure they met specifications.  While reaching into the bottom of a narrow box to grab some parts, Employee injured his left shoulder, but went on finish the work day. When his condition worsened, Employee filed an application for adjustment of claim pursuant to the Workers’ Compensation (WC) Act (Act)(820 ILCS 305/et seq.), seeking benefits from Employer as a result of a work-related injury. Following a hearing, the arbitrator denied Employee benefits under the Act, finding that his injury did not arise out of his employment and was caused by a risk (i.e. reaching) to which the general public was equally exposed. On review, the Illinois WC Commission (Commission), with one commissioner dissenting, struck a portion of the arbitrator’s decision but otherwise affirmed and adopted his decision and ultimate ruling in the case. The Trial court confirmed the Commission’s decision. In reversing, the Appellate Court reasoned that although the act of “reaching” is one performed by the general public on a daily basis, the evidence in this case established the risk to which claimant was exposed was necessary to the performance of his job duties at the time of injury. Employee’s action in reaching and stretching his arm into a deep, narrow box to retrieve a part for inspection was an act with “employment-related characteristics” and therefore, was distinctly associated with his employment. Young v. Illinois Workers' Comp Comm’n, 2014 IL App (4th) 130392WC (July 7, 2014)

NEGLIGENT TRAINING: Employee, in the course of her employment, drove a company pickup truck owned by Employer into a train at a railroad grade crossing, instantly killing herself and her unborn fetus. Her estate sued Railroad, which filed contribution claims against Employer and Employee’s Estate, alleging various acts of negligence.  TheTrial Court dismissed all of Railroad’s claims. The Appellate Court affirmed the dismissal of Railroad’s claims against the Estate. However, in reversing and remanding the Trial Court to reinstate Railroad’s claim for negligent training against Employer, the Appellate Court noted that Railroad’s allegations as to Employer “to properly train and instruct its employees, including [Employee]” were directly attributable to Employer and were separate from any negligence on the part of Employee.  Since the focus of a negligent training claim were Employer’s “failure to exercise ordinary care in hiring or supervision, rather than the wrongful act of  [Employee]” the Court reasoned that Railroad’s claim against Employer was not duplicative nor unnecessary and would not create any in duplicative assessment or apportionment of Employer’s alleged liability. National Railroad Passenger Corporation v. Terracon Consultants, Inc., 2014 IL App (5th) 130257 (Jul. 1, 2014)

ANSWER TO QUIZ: Broker wins. Under the Illinois Premises Liability Act (740 ILCS 130/2), an owner of a premises has a duty of reasonable care under the circumstances to those persons, including potential buyers, lawfully on the premises. However, Broker had no interest in the ownership, operation, maintenance or control of the premises except to the extent provided by the listing agreement. Since the listing agreement did not obligate Broker to inspect the basement staircase for hazards to potential buyers, Broker had no contractual duty. Summary judgment in favor of Broker, affirmed. Hart v. Century 21 Windsor Realty, 2014 IL App (3d) 130667 (July 16, 2014)

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