May 2011 Case Notes & Comments

“Behold the turtle. He makes progress only when he sticks his neck out.” ~ James Bryant Conant (1893-1978)

MONTHLY QUIZ: Landlord owns a street full of potholes.  Plaintiff is a tenant who knows the street has potholes. Plaintiff’s stepson goes into the street, into the path of an oncoming vehicle.   Plaintiff runs to get him and falls in a pothole. Landlord admits that he knew people walked in the street and had concerns about child safety, but argues that he has no liability because the pothole was ‘open and obvious.’ Plaintiff argues that, despite the fact that the pothole was open and obvious, the ‘deliberate encounter’ and ‘distraction’ exceptions apply. Who wins? You be the judge. (Answer below).


INSURANCE LAW - USE OF MISLABELED CHEMICALS FOUND TO BE AN ‘OCCURRENCE’ CAUSING ‘PROPERTY DAMAGE’: Insured labeled, stored and shipped chemicals. In 2006, Insured mislabeled and shipped the wrong chemicals for Customer, which were ultimately used to make adhesives, so the adhesives did not work. Customer sued and Insured tendered the matter to Insurer. Insurer declined to defend or indemnify on the bases that: 1) the mislabeling of the chemicals was not an “occurrence”; and, 2) that incorporating the wrong chemical into an adhesive did not constitute “property damage.” The Policy defined “occurrence” as including “accident[s].”  The appellate court reasoned that allegations that the Insured negligently mislabeled the chemicals was an accident - and therefore, an “occurrence” under the Policy. The court found allegations that the loss of use the adhesives fell within the Policy’s definition of ‘property damage.”United Nat. Ins. Co. v. Faure Bros. Corp.,-- N.E.2d --, 2011 WL 1902126 (1st Dist. May 17, 2011)


TRANSPORTATION LAW - NO VOLUNTARY ASSUMPTION OF DUTY:  Plaintiff’s Employer hauled debris from construction sites. Despite the fact that Employer and Defendant had no contractual relationship, Plaintiff occasionally called Defendant “in case of emergencies, such as when ‘something was wrong with the truck.’” Plaintiff claimed that he called Defendant about his Employer’s truck, and alleged that Defendant told him that Garage would inspect his truck and later, that Garage found nothing wrong with the brakes. Plaintiff was injured when the brakes on his truck failed. Plaintiff sued on the theory that Defendant voluntarily undertook a duty to inspect and repair the brakes.  The court held that at best, Defendant voluntarily undertook a duty to ensure that Garage examined the brakes – which it did, but reportedly found nothing wrong.  Case dismissed.  Lewis v. Chica Trucking, Inc.-- N.E.2d --, 2011 WL 1227836 (1st Dist. Mar. 31, 2011)


TEENAGE DRINKING PARTY - PARENTS DID NOT VOLUNTARILY ASSUME DUTY:Teenage Plaintiff allegedly got drunk at party at Defendants’ house, drove away, and was killed in a single-car accident. Illinois law does not recognize social host liability for providing alcohol.  Plaintiff’s estate filed counts alleging Defendants voluntarily undertook a duty to prohibit underage drinking at their house by telling their son not to allow alcoholic beverages at his party. The Illinois Supreme Court recognized that one can voluntarily undertake a duty, but found no undertaking here, where there were no allegations that Defendants actually took affirmative acts to prohibit any underage drinking, such as personally telling Plaintiff not to drink alcohol,  attempting to confiscate alcohol, telling offenders to leave, or calling a halt to the party. Furthermore, nothing Defendants did “. . . increased the risk of harm to that person and/or created a risk of harm to others.”  Case dismissed.  Bell v. Hutsell, -- N.E.2d --, 2011 WL 1886891 (May 19, 2011). 


ANSWER TO QUIZ: Defendants win because neither the “deliberate encounter” nor the “distraction” exceptions applied.  Although Plaintiff was generally aware of the potholes, he had not previously noticed the pothole he actually fell into. Therefore, the “deliberate encounter” exception did not apply. Since Landlord did not cause Stepson to run into the street, the court refused to apply the “distraction exception.” Case dismissed.  Garcia v. Young,--N.E.2d--, 2011 WL 1631993 (1st Dist. Mar. 23, 2011)

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