May 2023 Case Notes & Comments

“Life moves pretty fast. If you don’t stop and look around once in a while, you could miss it.” ~ Ferris Bueller's Day Off

MONTHLY QUIZ: Resident-Grandma, her husband and two grandchildren are site-seeing on a crowded sidewalk in downtown Chicago, looking at the City's "beautiful architecture and buildings." As they near Willis Tower, Grandma trips on a damaged, black sign pole lying on the sidewalk owned by the City and sustains a shoulder injury requiring surgery. Grandma does not see the pole and does not know what she tripped on. Granddaughter, who is walking behind Grandma, sees the pole and later testifies that she also saw Grandma's foot near the pole. An employee from a nearby hotel purportedly told Grandpa that he contacted the City about the pole because it was a "tripping hazard." Grandma sues the City for negligence, alleging that the City failed to maintain, remove and/or repair the pole and warn of the pole's dangerous condition. At deposition, Grandma testifies that at the time of her fall, she had to "pay attention" to avoid other pedestrians and stay on the right side of the sidewalk to avoid a bicyclist and pedestrians coming from the opposite direction, though there were no particular distractions, such as loud noises or shouting. City employees testify that with the exception of "stop" and "one way signs," which are replaced in 24 hours of a repair request, the City replaces all signs within 50-days of a repair request. In discovery, the City produces a "standard priority" repair request for the subject sign pole that the City received 13 days prior to Grandma's fall. Based upon this record, the City moves for summary judgment, arguing it owed Grandma no duty of care to warn of a dangerous condition that was open and obvious and that neither the distraction nor deliberate encounter exceptions applied. Was the condition open and obvious? Does the distraction exception apply to these facts? Is the City entitled to summary judgment? You be the judge. (Answer Below).

LEF PREVAILS AT TRIAL ON BEHALF OF ITS CLIENT, A RESIDENT OF AN ASSISTED-LIVING FACILITY, FOLLOWING A FIRE AT THE FACILITY. Robert Ostojic recently recovered more than $150,000 on behalf of his client, a former Resident of an assisted-living Facility located in the Chicagoland area. Prior to moving in, Resident provided the Facility access to her life-savings account pursuant to the residency contract. In November of 2020, a fire originated in Resident’s living unit. The Resident acknowledged that she accidentally left a box on top of a stove, causing the fire. Rather than make an insurance claim for the damages, the Facility elected to pay for the damages from Resident’s life-savings account. Prior to suit, Robert demanded that the Facility return the Resident’s money, but the Facility refused and in turn, demanded almost $50,000 in attorney’s fees. At trial, Robert prevailed on all claims, convincing the Judge that Facility’s withdrawal was contrary to Illinois Supreme Court precedent and that Resident had an immediate right to the return of her money. The Judge also rejected Facility’s claims for attorney’s fees.

ILLINOIS SUPREME COURT OPENS DEFENDANTS TO “RUINOUS LIABILITY” UNDER BIPA: In the latest - and easily most consequential - of the recent flood of rulings interpreting the application of the Biometric Information Privacy Act (“BIPA”), the Illinois Supreme Court held, in a 4-3 ruling, that a separate claim for violations of Section 15(b) or 15(d) of BIPAA accrues each time biometric information is scanned or transmitted without prior informed consent. In the present case, Plaintiff, a manager of a White Castle, alleged that her employer violated BIPA by requiring her to scan her fingerprints to access pay stubs and computers, without securing consent as required under the Act. Defendant moved to dismiss the pleadings, arguing that Plaintiff’s claim accrued in 2008, after BIPA’s effective date, and was therefore barred by the statute of limitations; Plaintiff argued that each time her fingerprint was scanned constituted a new and separate claim. The Federal District Court denied Defendant’s motion, but certified the question for appeal to the Seventh Circuit, which in term certified the question to the Illinois Supreme Court. Chillingly, as noted in the briefing, White Castle estimates class-wide damages potentially exceeding $17 billion. The Illinois Supreme Court nonetheless concluded that the statutory language was clear and must be given effect. Apparently appreciating the potential for the “financial destruction of a business”, albeit with minimal consolation, the Court did note that a trial court presiding over a class action would possess discretion in fashioning a damage award, and that statutory damages were discretionary rather than mandatory. Tellingly, in its final breath, the Court pointedly “suggested” that the legislature review the policy concerns expressed in the briefings, and clarify its intent regarding the assessment of damages – in other words: “Is this what you really wanted?”. Illinois businesses now look to the General Assembly to answer that call and correct the course. Cothron v. White Castle System, Inc., 2023 IL 128004 (Feb 17, 2023).

SUMMARY JUDGMENT IN FAVOR OF NAIL SALON WAS PREMATURE: Plaintiff slipped while stepping down from a pedicure chair at the Defendant’s nail salon (Salon) and sustained a broken leg. The entire incident was captured on a security camera. Plaintiff filed suit alleging that Salon was negligent by causing the steps and floor to become slippery, failing to assist Plaintiff in descending from an elevated chair and failing to warn Plaintiff of the slippery steps and floor. After limited discovery and before all discovery was closed, Salon filed a Celotex motion for summary judgment arguing the was no evidence of proximate cause because Plaintiff failed to identify at her deposition where or on what she slipped. The trial court granted the motion reasoning that the video was insufficient evident of proximate cause because the resolution was too low to identify any slip-inducing foreign substance. The trial court concluded that Plaintiff’s inability to state precisely where she slipped made it impossible to determine whether following an ordinance or industry standard would have changed the outcome. Plaintiff appealed arguing summary judgment was improper because (1) Salon violated safety ordinances that required handrails; and (2) Salon failed to install slip-resistant flooring. Salon argued that summary judgment was proper because Plaintiff failed to prove proximate cause and that Plaintiff failed to allege violation of a statute and Plaintiff’s expert’s affidavit was inadequate. The First District sided with Plaintiff and found that the testimony of her expert coupled with the video was direct evidence to support an inference that the absence of a handrail proximately caused Plaintiff’s injury. The First District also looked to photos of the chair that showed a slip resistant mat next to the chair but not on the step or floor and Plaintiff’s expert established that ordinances and industry standards required slip-resistant flooring or mats in areas that could become wet. The court found it unpersuasive that Plaintiff never alleged a violation of safety codes in her complaint since the trial court improperly denied her request to amend her complaint. In reversing the trial court’s summary judgment ruling, the court also noticed that the motion for summary judgment was filed only 10 months after Plaintiff filed her complaint and before fact discovery was closed pursuant to the case management order. The court noted that Plaintiff should have time to secure testimony from eyewitnesses who were clearly identified in the video. Williamson v. Evans Nail & Spa Corp , 2023 IL App (1st) 220084 (Mar. 3, 2023).

WORKERS' COMPENSATION - CROSSING GUARD'S SLIP AND FALL IN PUBLIC PARKING LOT FOUND COMPENSABLE: Appellant-Employee (Petitioner), a crossing guard, appealed a circuit court decision against Appellee-Employer (Respondent), a municipality. The Petitioner alleged that she slipped on ice and fractured her right wrist while exiting her vehicle, which was parked in an angled public parking spot where she normally parked. The Village did not instruct her where to park and Petitioner chose the public parking lot over the two private employee parking lots available to her as the public lot was closer to the building where she clocked in. Although a municipal regulation limited the general public from parking in angled parking spaces for more than four hours, the regulation did not apply to Village employees, like Petitioner. The Village admitted that they owned and maintained the angled parking spaces, including snow removal. At trial, the Arbitrator denied compensation on the theory that Petitioner parked in a space open to the general public and was therefore exposed to a neutral risk, ice and snow, which did not exceed the degree to which the general public was exposed. The Commission reversed the Arbitrator's decision. Two commissioners concluded that Petitioner’s accident was compensable as the Village owned the parking premises, exercised control over the area, and did not apply the same parking regulations to it’s employees, as it did the general public. The circuit court reversed the Commission decision and reinstated the Arbitrator’s decision. The appellate court reversed the circuit court’s decision and reinstated the Commission’s decision. The appellate court reasoned that while Petitioner was injured on a premises open to the general public, an exception for hazardous conditions applied. Under the exception, recovery is permitted when the premises are provided by and under the control of the employer and where the injury is caused by a hazardous condition. The Village argued that application of this rule to the public lot was overly broad and would give rise to liability on all public property, such as streets and sidewalks. The Court rejected this argument as the intended premises only included that public properties where the injured employee reasonably might be in the performance of his or her duties. The Court further reasoned that because the Village allowed an exception to the four-hour parking limit for it’s employees, the village effectively provided the parking space to the Petitioner. W. Springs Police Dep’t v. Ill. Workers’ Comp. Comm’n, 2023 IL App (1st) 211574WC (Jan. 13, 2023).

ANSWER TO QUIZ: City wins, Grandma loses. Summary Judgment was properly granted. The City has no duty to protect against injury from a dangerous condition that is open and obvious, which under Illinois law has been defined to mean "that the condition and risk are apparent to and appreciated by a reasonable person 'exercising ordinary perception, intelligence, and judgment.'" Here, in addition to photographs depicting the black (i.e. contrasting) pole, Granddaughter testified that she saw the pole and Grandma's foot near the pole, leading the trial and appellate courts to conclude that the pole was not obstructed, "readily visible" and therefore, "open and obvious." The Illinois distraction exception applies when a property owner has reason to expect that invitees' attention may be distracted so that she will not discover what are open and obvious dangers. Although Grandma was distracted by pedestrian traffic and the surrounding architecture, Grandma could not identify any specific distraction created by the City that justifiably diverted her attention from the sidewalk. Additionally, the court determined that the "deliberate encounter" exception did not apply because Grandma admitted that she did not see the pole and therefore, did not deliberately encounter the condition. Under these circumstances, no question of fact existed as to whether the dangerous condition on a sidewalk was open and obvious, or, if the danger were open and obvious, whether the distraction and deliberate encounter exceptions applied. Summary judgment affirmed. Patricia Ann Casey Powell and Richard Hays Powell v. The City of Chicago, 2023 IL App (1st) 211655-U (April 28, 2023).

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