November 2011 Case Notes & Comments

“Heap high the board with plenteous cheer and gather to the feast, and toast the sturdy Pilgrim band whose courage never ceased.” ~ Alice W. Brotherton

MONTHLY QUIZ: Contact sports exception provides that sports participants are not liable for injuries to fellow participants caused by ordinary negligence, only for intentional or willful and wanton conduct. During informal summer softball league playoff game, Batter hits ball that is fielded and thrown to Infielder. To make the play, Infielder reaches to get ball and keeps his foot on the base. Trying to avoid the out, Batter collides with Infielder and causes injuries. Infielder sues League that set up and designed field, arguing that it was not compliant with the rules, was unreasonably dangerous and caused the collision. Does the contact sports exception also apply to non-participant and organizational defendants, such as the League? If yes, does it apply to the acts of design and set up a field? You be the judge.  (Answer below)


NEGLIGENCE LAW / DUTY: Defendants operated long distance and commuter trains on same track. There were no signals or signs to indicate that long-distance trains passed through suburban commuter stations without stopping. Due to delay, long-distance train approached station at the same time the commuter train normally arrived. Foliage obstructed Commuter’s ability to see the train until he was on the platform. Commuter allegedly believed approaching train was slower commuter train that would stop, due to its similarity in size and shape, the time of arrival and inclement weather. Passing through station at 70 mph, train struck and killed Commuter while he was crossing the tracks. On appeal, Commuter’s Estate argued that it was foreseeable that Commuter would be distracted from the open and obvious dangers of the train due to foliage, weather and lack of warnings. HELD: Defendants owed no duty to warn Commuter since dangers of stepping in front of a moving train are open and obvious, regardless of the kind of train. Further, no evidence found that weather or foliage distracted Commuter such that he forgot about the approaching train. Park v. N.E. Regional Commuter R.R. Corp., et al, 2011 IL App (1st) 101283 (1st Dist. Nov. 4, 2011)COMPARE: Eskew v. Burlington Northern & Santa Fe Railway Co. 2011 IL App (1st) 093450 (1st Dist. Sept. 30, 2011)(HELD: Railway owed Man who presented himself to the platform for travel the same duty of care as one its passengers, the “highest duty of care.”)


MOTOR VEHICLE EXCLUSION: Rider injured while test-driving Insured’s motorcycle when brake pedal Insured had just welded snapped off. Insured sought coverage under homeowner’s Policy. Insurer filed action asserting motor vehicle exclusion, which applied to occurrences “arising out of the ownership, maintenance, use... entrusting, loading... of any motor vehicle” but not “motor vehicle[s] in dead storage.” Held: No coverage owed. Exclusion applied since motorcycle fit the definition of “motor vehicle” and dead storage exception did not, since motorcycle was running, not “dead”, at the time of the incident. Allstate v. Mahoney, 2011 IL App (2d) 101279 (2nd Dist. Nov. 1, 2011)


COVERAGE / NEGLIGENT MISREPRESENTATION: Buyers suffered extensive water infiltration and flooding in recently purchased home. Court held that Insurer owed a duty to defend Insureds in lawsuit seeking rescission of real estate contract, or compensatory damages. Allegations of negligent misrepresentation in conjunction with a home sale can be an “occurrence” resulting in “property damage” or “bodily injury”, where Insured did not expect nor intend the injury. USAA Cas. Ins. Co. v. McInerney, 2011 IL App(2d) 100970 (2nd Dist. Oct.31, 2011)


NEGLIGENCE / WORKERS’ COMPENSATION LAW: Plaintiff-Temporary Employee of Company No. 1 was assigned to work at Company No. 2’s manufacturing plant and was injured. Plaintiff settled worker’s compensation claim and executed a release for all claims that arose out of the date of injury. In light of terms of settlement agreement and despite claim that Company No. 1 never registered with State as an "employee leasing company" under the Employee Leasing Company Act, exclusive remedy provision of Workers’ Compensation Act still barred Plaintiff’s negligence claims. Case dismissed. Mason v. John Boos & Co. 2011 IL App (5th) 100399 (5th Dist. Oct. 28, 2011).


LEF WINS SUMMARY JUDGMENT – DEPOSITORS’ CLAIMS AGAINST WAREHOUSE OPERATOR BARRED:  In October 2011, LEF obtained summary judgment on all counts on the claims brought against its client, a Warehouse operator, by some of its Depositors.  Depositors alleged that Warehouse conspired with thieves to remove Depositors’ property from the premises, failed to exercise control over warehouse, and/or breached the warehousing contract.  LEF moved for summary judgment arguing that, under the warehousing agreement’s limitations period, Depositors’ claims were barred as a matter of law.  Depositors resisted, arguing that the limitations period was inapplicable because the contract required written notice of loss, and Warehouse’s conduct frustrated Depositors’ investigation of the loss.  The Circuit Court of Lynn County, Iowa sided with the Warehouse, granting it summary judgment on all counts. 


LEF AWARDED FOR PRO BONO SERVICE: Congratulations to Heath Sherman, who was presented the Award for Excellence in Pro Bono Service by the Judges of the United States District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association for outstanding commitment to and excellence in representing a pro bono client before the United States District Court.


ANSWER TO QUIZ: In this case, the contact sports exception did not apply to the League. One reason for the exception is that physical contact between players is an inherent part of sport and Illinois courts do not want to discourage "vigorous participation.” Here, imposing liability on the League for ordinary negligence in properly setting up the field would not alter the softball game, nor discourage vigorous participation. Gvillo v. DeCamp Junction, 2011 IL App (5th) 100262.CONTRAST: Karas v. Strevell, 227 Ill. 2d 440 (2008)(Contact sports exception applied to league, opposing team, and referees’ association who allegedly failed to enforce or instruct players on the rules)

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