March 2022 Case Notes & Comments

"Too early for flapjacks?" ~ Bill Murray as Phil Connors

MONTHLY QUIZ: In 2016, Postman slips and falls while delivering mail to a neighbor in his building and claims he is injured. In 2018, Postman files a lawsuit against property Owner, alleging that his fall was due to Owner’s negligent failure to exercise ordinary care and caution in maintaining the premises’ gutters and downspouts and in removing ice and snow so that there was an unnatural accumulation of ice on the walkway. Postman's original lawsuit is dismissed for want of prosecution. Plaintiff re-files the action in November 2019 and in February 2020, a special process server is appointed and an alias summons issues. Postman unsuccessfully attempts to serve Owner in February and March 2020. 6 months later, in September 2020, the Court issues another alias summons and Owner is finally served. Owner moves to dismiss the complaint for Postman's failure to diligently serve the complaint and pursue his lawsuit, arguing that it took more than 10 months to serve the refiled complaint on Owner. Postman claims that he made several attempts to serve Owner and that the Covid-19 pandemic contributed to the difficulties in serving the summons and complaint. When considering whether a plaintiff has acted diligently, courts are required to review the totality of the circumstances. Is this delay in service justified? Under the circumstances, has Postman acted with diligence in serving his lawsuit on Owner? Who is correct? You be the Judge. (Answer below).

FIFTH DISTRICT AFFIRMS DISMISSAL OF PRINCIPAL FOLLOWING SETTLEMENT WITH AGENT: Plaintiff brought a medical negligence action against a Doctor and Doctor’s Employer. After Plaintiff settled with the Doctor, the Employer moved for summary judgment, arguing that the settlement with the Doctor extinguished the vicarious liability claims against Employer. The trial court granted the motion and Plaintiff appealed. After examining Plaintiff’s complaint, the section 2-622 certifying report, and Plaintiff’s expert disclosure, the 5th District Appellate Court concluded that, as the claim against the Employer was based on the theory of vicarious liability, as opposed to direct negligence by the principal (such as negligent supervision), the holding in Gilbert v. Sycamore Municipal Hospital, required dismissal of the claims against the principal following settlement with the agent. Campbell-Henry v. Good Samaritan, 2022 IL App (5th) 210147-U (Jan. 7, 2022).

SUMMARY JUDGMENT IMPROPER WHERE CONDITION, BUT NOT THE HAZARD, IS OPEN AND OBVIOUS: While walking in a parking lot, Plaintiff stepped onto a metal trench grate and her right foot got caught, causing her to fall, sustaining injuries. The trench grate was comprised of downward sloping gaps, varying in size from three inches wide and up to seven inches long. During her deposition, Plaintiff testified that the incident occurred early in the morning, while still dark, and the air was “heavy”, with a lot of humidity. She confirmed that the grate was very difficult to see. She stated that, when she was about one to two feet from the grate, she observed “something rust colored” that “looked like it blended in” to the asphalt, but confirmed that she was able to see that it was a grate. Subsequent to her deposition, Plaintiff submitted an affidavit averring that she only saw the vague outline of the grate without knowing it was a grate prior to her fall, that it was rust colored and blended in with the surrounding area, was difficult to see due to the darkness and weather conditions, and she could not appreciate the danger of the grate as she could not see the dimensions of the grate holes and that the holes angled downward instead of being flat. The trial court granted defendants’ motion for summary judgment, finding that the grate was an open and obvious condition. On appeal, the First District noted that “obvious” means that both the condition and the risk are apparent to and would be recognized by a reasonable person, in the position of the visitor exercising ordinary perception, intelligence, and judgment. In reversing and remanding, the court held that a genuine issue of material fact existed as to the visibility, in dim lighting, not of the grate itself, but of the downward sloping gaps where Plaintiff’s right foot got caught. Becker v. Alexian Brothers Medical Center, 2021 IL App (1st) 200763-U (Sept. 30, 2021).

BIOMETRIC INFORMATION PRIVACY ACT VIOLATIONS NOT SUBJECT TO THE WORKERS’ COMPENSATION EXCLUSIVITY PROVISIONS: The Illinois Supreme Court recently issued a decision in the closely-watched case McDonald v. Symphony Bronzeville Park, LLC. The case involves a putative class action against an employer using a fingerprint timekeeping system, alleging violations of the Biometric Information Privacy Act (“BIPA”), which is intended to regulate the collection, use, storage, retention and destruction of biometric identifiers and information. Plaintiff alleges employees were never given or signed a release consenting to storage of their biometric information (i.e., fingerprints), and were never informed of the purposes or length of time for which the information was stored, in violation of BIPA. Defendant argued that the putative class claims were barred by the exclusive remedy provisions of the Workers’ Compensation Act. The Circuit and Appellate Courts rejected defendant’s argument, but certified the question to the Supreme Court. The Supreme Court has now concluded that the exclusivity provisions of the Workers’ Compensation Act does not bar a claim for statutory damages under BIPA where an employer is alleged to have violated an employee’s statutory privacy rights. As such, plaintiffs are permitted to pursue their claims in the circuit court rather than before the Workers’ Compensation Commission.  McDonald v. Symphony Bronzeville Park, LLC, 2022 IL 126511 (Feb. 3, 2022).

ANSWER TO QUIZ: Postman loses, Owner wins. The trial court dismissed the lawsuit pursuant to Illinois Supreme Court Rule 103(b), which requires a plaintiff to exercise "reasonable diligence" when obtaining service on a defendant. The dismissal was affirmed on appeal. In Illinois, other cases involving delays in service anywhere from 7-10 months have been held sufficient to warrant dismissal under Rule 103(b). Here, it took Owner about 10 months to serve Owner, who lived in the same building (i.e. and thus, Postman presumably knew where Owner lived). While the courts have acknowledged that the Covid-19 pandemic "presented some special circumstances," there was insufficient evidence to show that the special process server was somehow unable to serve the complaint between March 2020 and September 2020, during a period of time "when many people were at home more than usual." Walker v. Demos, 2022 IL App (1st) 210152-U (Jan. 14, 2022).

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