June 2011 Case Notes & Comments

“Finding each other is the beginning, staying together is the process, working together is the success.”~ unknown

MONTHLY QUIZ: Plaintiff-Patient, a heavily medicated, postsurgical patient attempts to leave Hospital against medical advice. When security Guards thwart his exit, Patient responds by lashing out with crutches. Exhausted by the scuffle, Patient ultimately settles into a wheelchair. Patient claims he is injured and sues for battery. Over Patient’s objection, the trial court instructs the jury that to prove battery, Patient must prove that Guards intended to touch Patient in a harmful or offensive way. The jury finds in favor of Hospital. On appeal, Patient argues that, instead, the jury should have been told that Patient had to prove that Guards merely intended to touch him and that he was harmed as a result of that contact. Who is right? Who wins? You be the judge. (Answer below).

LEF WINS ARSON TRIAL: Congratulations to Thomas J. Finn, who prevailed on behalf of the defendant in a jury trial held in the Winnebago County Courthouse in Rockford, Illinois. In 2007, the insureds’ single family residence, which was covered by a policy of insurance, sustained fire damage. Tom convinced the jury that the insurance company’s refusal to pay the claim was proper since fire was intentionally set by the insureds. Tom also prevailed on a counterclaim against the insureds and obtained a judgment in favor of the insurer for the ALE payments and payments to the insureds’ mortgage company.

INSURANCE LAW - EQUITABLE SUBROGATION: A COUNTY IS NOT AN INSURER & GOVT SELF-INSURANCE IS NOT INSURANCE: County Employee struck and injured Plaintiff-Motorist while driving car, owned by County, a self-insured Illinois municipality. At the time of the accident, Employee was a named insured on three auto policies, none of which provided coverage for the County vehicle, and a personal liability umbrella policy issued by Insurer. After settling with Plaintiff on Employee’s behalf, Insurer sued County for equitable subrogation and reimbursement. In order to prove equitable subrogation in Illinois, a plaintiff insurer must establish, among other things, that the defendant is a “carrier,” primarily liable to the insured for the loss. In a case of first impression regarding this requirement, Insurer argued that County was primarily liable for settlement paid to Plaintiff. County argued that it was not primarily liable, because it was a self-insured municipality. In dismissing Insurer’s claims, appellate court found that County, as a self-insured municipality, was neither an insurer nor did it provide insurance coverage. Accordingly, the court held that Insurer could not establish that County was a “carrier,” primarily liable for a loss under a policy of insurance. Court also held that government self-insurance is not the same as a private policy of insurance. State Farm Mut. Auto. Ins. Co. v. Du Page County.-- N.E.2d --, 2011 WL 2471920 (2nd Dist. June 16, 2011)

WORKERS COMPENSATION: On June 28, 2011, Illinois Governor, Pat Quinn, signed legislation effectively overhauling the existing Illinois Workers’ Compensation Act. Given the dramatic changes, many of which benefit employers and insurers, Leahy, Eisenberg & Fraenkel, Ltd. will issue a special edition of Case Notes & Comments, highlighting revisions. Should you have any immediate questions, please contact Heath Sherman, or attorney with whom you regularly work.

PROFESSIONAL NEGLIGENCE VERSUS INSTITUTIONAL NEGLIGENCE: Hospital was sued under a professional negligence theory after emergency room doctors allegedly failed to diagnose appendicitis. Over Hospital’s objection, jury was instructed it could consider both expert testimony and evidence of professional standards, by-laws/rules, community practice, and other sources in determining whether the standard of professional care was met. The Illinois Supreme Court reversed, finding that, while such other sources of evidence could be considered in institutional negligence claims, only expert testimony could be considered in professional negligence claims. In doing so, the Supreme Court struck the Illinois pattern jury instruction for professional negligence claims as not accurately stating the law. Studt v. Sherman Health Systems,-- Ill.2d – , Docket No. 108182 (June 16, 2011).

PREMISES LIABILITY: Plaintiff-Patron slipped and fell near Restaurant’s trash receptacle and was injured. Patron testified that she did not know what she slipped on, but noticed an unknown greasy substance on her hands that was “the color of the floor.” The area was reportedly so greasy, that Patron could not get up without help. There was no evidence showing how the substance came to be on the floor and no evidence Restaurant had actual notice. Though Restaurant’s safety manual required a walk-thru every 15 minutes, Patron testified that she saw no one in the area during the 20 minutes she sat and ate her food. In Illinois, a business owner can breach his duty to an invitee who slips on a foreign substance if, in the exercise of ordinary care, the business owner should have discovered the substance (i.e. the business owner will be held to have “constructive notice”). In reversing a grant of summary judgment in favor of Restaurant, the appellate court found that such circumstances presented genuine issues of material fact regarding the cause of Patron’s fall and constructive notice to Restaurant. Newsom-Bogan v. Wendy’s Old Fashioned Hamburgers of New York,--N.E.2d--, 2011 WL --, Case No. 1-09-2860  (1st Dist. June 24, 2011)

ANSWER TO QUIZ: Hospital wins. Illinois courts have defined the tort of battery a number of ways and unfortunately, there is no pattern jury instruction for the tort of non-medical battery, the claim presented here. In fact, there is legal support for both Hospital and Patient’s positions as to whether intent element of battery merely requires intent to touch, or the arguably more difficult-to-prove intent to cause a harmful or offensive contact. In such instances, it was within the trial court’s discretion to give Hospital’s jury instruction and not Patient’s. Case dismissed.  Bakes v. St. Alexius Med. Center, et al.,--N.E.2d--, 2011 WL --, Case No.1-10-1646 (1st Dist. June 23, 2011)

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