May 2019 Case Notes & Comments

"Act. Don't Just Talk" ~ Andrew Keller, Facebook Global Creative Director

MONTHLY QUIZ: Pedestrian-Plaintiff, who is not a guest or employee of Hotel, cuts through Hotel's walkway on her way to work, trips on a "neglected, broken" and uneven walking surface, and sustains injury. In lawsuit filed by Pedestrian, Hotel argues that it owes Pedestrian no duty as she is a trespasser. In response, Pedestrian provides evidence that a number of other pedestrians used the walkway on a daily basis. The trial court agrees with Hotel and dismisses the case on summary judgment. On appeal, Pedestrian  argues, among other things, that the trial court erred in granting summary judgment because Hotel owed Pedestrian a duty under the "permissive use" exception. In Illinois, an owner or occupier of land owes a duty of reasonable care to all entrants upon the premises, except to trespassers. For trespassers, a landowner owes no duty, but must refrain from willfully and wantonly injuring them. Under the "permissive use exception," however, courts have found that a landowner owes a duty of ordinary care to those who are frequent trespassers in a limited area where the landowner knows or should know of their constant intrusion." Under these facts, is Pedestrian a trespasser? Does the  "permissive use exception" apply? Was the grant of summary judgment in favor of Hotel proper? You be the judge. (Answer below). 

LEF WINS PREMISES TRIAL: Partner Jeff Pavlovich, with the pre-trial assistance of Maggie Gosselin, won a defense verdict ("not guilty") on behalf of the client, a condominium Association located in Cook County, IL. Plaintiff alleged that the Association breached its Bylaws in failing to properly clear their parking lot of ice and snow, resulting in plaintiff's fall and shoulder injury resulting in surgery. Plaintiff requested $285,000 from the jury. The jury deliberated for approximately one hour before returning the defense verdict and awarding plaintiff $0. Afterwards, the jury highlighted the following points in supporting their award for the defendant: 1) plaintiff's failure to report the incident; 2) weather data which supported defendant's position; and 3) plaintiff's knowledge of the conditions. The case was tried before Judge Thomas Lyons. Constance v. Horizon House, Inc. Case No.: 16 L 011930 (Cook)(Feb. 26, 2019).

WORKERS' COMPENSATION - PROOF OF NOTICE OF INTENT STILL MUST BE FILED WITHIN TWENTY DAYS : Petitioner-Employee filed an application for adjustment of claim against Respondent-Employer for a work-related injury. Arbitrator awarded Employee 5% loss of use of a person and medical expenses, but denied certain benefits. Upon review, the Commission affirmed and adopted Arbitrator's award. Seventeen days after receiving Commission's decision, Employee filed a petition for administrative review and mailed a notice of intent to file for review in the circuit court (Notice of Intent) to the Commission, but did not file the proof of Notice of Intent with the circuit court. Summons were issued the next day. Weeks later, Employer moved to dismiss Employee's petition for failure to file a notice of intent with the court, or an affidavit, as required by section 19(f)(1) of the Illinois Workers' Compensation Act (Act) (820 ILCS 305/19(f)(1) (West 2016)). Relying on  interpretations of section 19(f)(1) prior to its 2013 amendment, Employer argued that Employee's failure to file a Notice of Intent or an affidavit with the circuit court within the 20-day period deprived the circuit court of jurisdiction. In response, Employee argued that while section 19(f)(1) requires petitioners to file their petition for review within 20 days of receipt of notice of the Commission's decision, the revised Act does not specifically require the filing of a notice of intent or affidavit within that time frame. Following prior interpretations of section 19(f)(1), the appellate court concluded that the more recent amendments to the Act still require petitioners to file with the circuit court a notice of intent, or an affidavit of the attorney setting forth that notice of intent to file for review, within 20 days of receiving the Commission's decision. Dismissal of petition affirmed.  Conway v. The Illinois Workers' Compensation Commission, et al., 2019 IL App (4th) 180285WC (May 2, 2019).

POST-ACCIDENT VEHICLE PHOTOGRAPHS ADMITTED WITHOUT EXPERT: In a rear end accident lawsuit, the parties disputed Defendant-Driver's speed at the time of impact. Photographs of the vehicles' damage were admitted at trial, without expert testimony and over Plaintiff's objection, and the jury returned a verdict for Driver. Plaintiff appealed, arguing that the admission of the post-accident photographs was in error.  The Illinois Supreme Court overruled a line of cases which held that expert testimony was required to establish causal connection between the vehicular damage depicted and the alleged personal injury before the photographs were deemed relevant and admissible.  The Court declined to adopt a "bright line" standard for admissibility, but instead, held that it was within the discretion of the trial court to determine whether post-accident vehicular photographs have a tendency to make a fact of consequence "more or less probable", and whether the jury can properly relate the vehicular damage depicted to the injury alleged by the plaintiff absent expert testimony.  The Court reasoned that if the jury is presented with relevant testimony regarding vehicle speed and force of impact, that jury should also be permitted to consider post-accident photographs depicting vehicular damage, or lack thereof. If post-accident vehicular damage photographs could reasonably show that a fact is slightly more probable than it would appear without the evidence, the photographs are relevant and should be admitted. While expert testimony may be necessary to address the weight given to post-accident vehicular photographs, it is not a necessary prerequisite to admissibility. Peach v. McGovern, 2019 IL 123156 (Jan.25, 2019). 

PLAINTIFF'S "SLIGHT EVIDENCE" ENOUGH TO SURVIVE SUMMARY JUDGMENT ON DEFENDANT'S NEGLIGENT PLACEMENT OF A "FOREIGN SUBSTANCE": Plaintiff-Shopper tripped on a shopping cart left near a store's front registers. Prior to the accident, Shopper had walked past the front registers without incident.  Approximately two minutes later, she attempted to walk back the way she came, when she tripped over the empty shopping cart.  The store Manager testified that the shopping cart was not present approximately five minutes before the fall. Shopper testified that in the two minutes before she fell, the only individuals in the area were store employees. Store's policy required its employees to return stray shopping carts to the caddy near the entrance. Where the "foreign substance" causing a plaintiff to fall is related to the defendant's business, a plaintiff need only present "some further evidence, direct or circumstantial, however slight" which inferred that it was "more likely than not" that the foreign substance was placed on the floor by a store employee rather than a customer.  In this case, Store admitted that the shopping cart causing Shopper's fall was related to its business. The Second District held that the circumstantial evidence presented (the short time-frame in which the cart was placed, the absence of customers in the area, and the presence of employees in the area), was sufficient for a jury to infer that it was "more likely than not" that the shopping cart was placed by a store employee, avoiding summary judgment. Pollak-Becker v. Kmart Stores of Illinois, LLC, 2018 IL App (2d) 170979-U (Aug. 16, 2018).

STORE'S DUTY TO MINOR IS DISCHARGED WHEN PARENT IS PRESENT: While visiting a Coffee Shop with their parents, two children (aged three and five) were playing on the rope connecting two free-standing metal "stanchions" which had heavy concrete bases and were used to control traffic flow. One of the stanchions fell onto one of the child's hand, ultimately requiring amputation of one finger and placement of a pin in another finger. Applying Illinois law, the 7th Circuit held that "the responsibility for a child's safety lies primarily with its parents, whose duty it is to see that his behavior does not involve danger to himself." The Court further held that "any parent" could appreciate the risk posed by the "stanchion" to a young child, and could foresee that a child hanging from the rope connecting the "stanchions" or otherwise playing on or around them" could be injured. The Court concluded that the duty of the minor's parents abrogates the duty owed by an owner or occupier of land where a child is injured due to an obvious danger while under a parent's supervision, thereby warranting summary judgment in favor of the defendant. Roh v. Starbucks Corp., 881 F.3d 969 (7th Cir. 2018) (Feb. 2, 2018).

ANSWER TO QUIZ: Pedestrian wins, Hotel loses. While Pedestrian is technically a trespasser, she was walking in an area where numerous other pedestrians walked on a daily basis. Under the permissive use exception, where a landowner permits regular use of his land for travel, "the landowner's continued toleration of the trespass amounts to permission to make use of the land, so that the plaintiff then is not a trespasser but becomes a licensee."  Given the evidence that Hotel tolerated the use of the driveway, the trial court erred in finding Pedestrian a trespasser as a matter of law. The appellate court did suggest, however, that certain measures, such as the installation of signage indicating "property for use of hotel guests only" may have changed the result. Epple v. LQ Management, LLC, 2019 IL App (1st) 180853 (May 23, 2019).

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