October 2022 Case Notes & Comments

“Life doesn’t get easier or more forgiving, we get stronger and more resilient.” ~ Steve Maraboli, Life, the Truth, and Being Free

MONTHLY QUIZ: While driving in a City-owned car, police Officer rear-ends Plaintiffs' car and injures Driver and Passengers. Plaintiffs file a complaint 14 months later against Officer and her employer, the City, alleging that they "were injured as a result of the conduct of a City employee in the scope of her employment." City moves to dismiss the complaint, arguing that the one-year statute of limitations under the Local Government and Governmental Employees Tort Immunity Act (745 ILCS 10/8-101(a), “Act”) applies. In response, Plaintiffs argue that the Act does not apply and that a 2-year statute of limitations should apply because Officer was not acting withing the scope of her employment (i.e., executing or enforcing a law) at the time of the accident. In the alternative, Plaintiffs ask leave to file claims solely against Officer, in her civilian capacity, "as a driver using a public roadway, not as an agent, employee, servant or representative of the Defendant City." Does the Act apply to Officer while she is not performing a uniquely government function or acting within her normal role as a police officer when the accident occurred? Under the circumstances, should Plaintiffs be allowed to plead claims against Officer in her private capacity? You be the judge. (Answer below).

NO GOOD DEED GOES UNPUNISHED – INVITEE USING LOANED PROPERTY GETS MIXED RULING: Crossfit Gym was moving its equipment to a new location, with the assistance of volunteers (including employees, customers, and friends of the Gym Owner). The Gym Owner’s father owned a sign Company and loaned several ladders to Gym to assist with the move. Plaintiff, a friend of the Gym Owner, while helping with the move, was injured when the ladder he was on slid away from the wall, causing him to fall. Plaintiff alleged that the rubber “feet” of the ladder had worn down, exposing the aluminum, and slipped on the concrete ground, after the rubber floor tiles had been removed earlier during the move. Plaintiff filed a negligence action against Gym and the sign Company. The trial court granted Defendants’ motions to dismiss, ruling that there was no legal duty owed to Plaintiff. On appeal, the Second District reversed the dismissal as to the Gym, holding that Plaintiff was Gym's invitee and thus the Gym owed a duty to provide safe conditions on the property, including the condition of the concrete floor after removal of the rubberized floor surface, and the condition of the ladder. However, the Second District affirmed the dismissal as to the sign Company. Applying Section 405 of the Second Restatement of Torts (relating to the loaning of property), the Court noted that there was no allegation that the sign Company “knew" or “had reason to know” that the ladder was or was likely to be dangerous for the use for which it was given or lent. The Court distinguished the duties under Section 408, relating to the lease of property, which imposed a duty to inspect. McCabe v. Crossfit Tri-Cities, 2022 IL App (2d) 210534-U.

WORKERS’ COMPENSATION - COVID 19: Appellant-Employer (Respondent), a lighting manufacturer, appealed a 19(b) award finding that: 1) Appellee-Employee (Petitioner), a machine operator, sustained Covid-19 arising out of and in the course of his employment; 2) Employee was entitled to prospective medical care; and, 3) that Employee’s current state of ill-being was related to contracting Covid. Respondent was considered an "essential business" as broadly defined by Governor Pritzker’s executive order, thus allowing Respondent to remain open during the pandemic. Petitioner testified that Respondent encouraged, but did not require, its employees to wear masks. Petitioner testified that he was notified that some co-workers tested positive for Covid the month prior to his contraction and a week or two before he fell ill. Employee attended an indoor meeting where roughly half of the attendants wore masks. As a result of his Covid infection, Petitioner was intubated, hospitalized for eight weeks and remained off work for the following year as he required supplemental oxygen 24 hours a day. Petitioner testified that on high humidity days, he still required supplemental oxygen while he slept. Respondent’s HR manager testified that meetings of over 20 people were prohibited, social distancing was mandated, and handwash stations were installed a month prior to Petitioner’s infection. HR Manager testified that masks were not mandated until Respondent was capable of providing masks to its employees, which was two weeks prior to Petitioner’s infection. Respondent testified that it confirmed through contact tracing Petitioner could not have interacted with any other known Covid-positive employees and provided evidence that no other employees on Petitioner's shift tested Covid positive. Respondent also offered evidence showing its workplace Covid positivity rate was 10%-15%, whereas the surrounding area was 40-45%. The Commission affirmed the Arbitrator’s prior decision. The Commission held that Respondent properly rebutted the presumption that Petitioner’s infection originated from work, shifting the burden back to Petitioner. However, the Commission found that Petitioner also met his burden. The Commission found sufficient evidence to show Petitioner’s infection was work-related, relying upon the evidence that 10-15% of Respondent’s workforce tested positive for Covid in the two weeks following Petitioner’s infection, Respondent’s failure to show an alternative non-work related source of the infection, and Respondent’s PPE measures, which the Commission considered ineffective in preventing the spread of Covid. The Respondent's appeal is pending, and we will report the results.

SUBROGATION - REFLECTING UPON HURRICANE IAN: Earlier this month, CoreLogic, a global property data and analytics provider, announced its updated and final damage estimates for Hurricane Ian. According to CoreLogic, the storm damages could meet or exceed $70 billion dollars. Following Hurricane Ian, our immediate thoughts turned to those affected. As the region continues with recovery and repair efforts, the insurance industry has and will continue to respond. However, the nature and extent of the damages caused by Hurricane Ian should also prompt us to pause and reflect. As part of that reflection, insurers must consider which damages should have been avoided. Owing to climate change, we should expect that catastrophes will be bigger, stronger, and more devastating. Construction, building codes, and minimum standards are already evolving for the road ahead. In the face of these natural disasters, as a firm specializing in large-loss property subrogation, we have the experience to assess whether a third-party owed a duty, but failed to prevent damages. For questions regarding weather-related subrogation, or subrogation in general, please contact us.

ANSWER TO QUIZ: Plaintiffs lose, City and Officer prevail. Section 8-101 of the Act generally provides that a civil action against a local entity or any of its employees must be commenced within one-year from the injury date or the date the cause of action accrued. With regard to law enforcement, Section 2-202 of the Act provides that “A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.” 745 ILCS 10/2-202 (West 2020). Here, Plaintiffs relief upon Currie v. Lao, 148 Ill. 2d 151, 159 (1992), a case where the Illinois Supreme Court found that claims against a state trooper were not automatically barred under the Act because the trooper allegedly breached his duty “as a result of his status as the driver of an automobile on a public roadway" when he responded to a call in a nearby jurisdiction (i.e. outside of his normal and official role). However, the appellate court determined that the issue of whether Officer had immunity under the Act based upon her duties was an entirely "separate and distinct" issue from whether Plaintiffs timely filed their complaint - which they did not. The appellate court also affirmed the trial court's refusal to allow an amended complaint. Although Plaintiffs contended that the amended complaint against Officer would cure the defective pleading inasmuch as the claim would be directed to Officer as a driver using a public roadway, Officer and City pointed out the allegations of Plaintiffs' prior complaints. In Plaintiffs' prior complaints, Plaintiffs alleged that Officer worked for City and that was was acting within the scope of her employment with the City at the time of the accident - which the appellate court held was a judicial admission that was binding upon Plaintiffs. Marina Jurassi-Paocic and The City of Chicago, 2022 IL App (1st) 210562-U (Oct. 24, 2022).

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