In Becker v. Alexian Brothers Medical Center, 2021 IL App (1st) 200763, the plaintiff pedestrian filed negligence claims against the property owner, general contractor, civil engineer, architect, and excavation subcontractors as a result of injuries she sustained when she fell after stepping onto a metal trench grate in a parking lot. Approximately seven years after the project was completed, the plaintiff parked her car in a parking lot and began walking through the parking lot to the entrance of a building. It was early in the morning and still dark outside. The subject grate was located in a road between the parking lot and a sidewalk. While the plaintiff testified the “grate was very difficult to see,” she admitted she saw something rust colored (the grate) which “looked like it blended into the asphalt” one to three feet before her foot came into contact with the grate. Approximately two years after her deposition, the plaintiff executed an affidavit which provided in pertinent part she “could not appreciate the danger of the grate and could not see the length and width of the grate holes, and the fact that the holes angled downward instead of being flat.” The defendants moved for summary judgment, arguing that they did not owe a duty to the plaintiff because the grate was an open and obvious condition. The trial court granted the defendants’ motions for summary judgment.

On appeal, the plaintiff argued a genuine issue of material fact existed whether the grate posed an open and obvious danger. The First District Appellate Court noted in Illinois, the open and obvious doctrine is an exception to the general duty of care owed by a landowner. “Obvious” means that both the condition and the risk are apparent to and would be recognized by a reasonable person, in the position of a visitor, exercising ordinary perception, intelligence, and judgement. The determination of whether a condition is open and obvious is based on an objective standard. The First District Appellate Court held because reasonable minds could conclude the metal trench grates with downward sloping gaps that blended was not an open and obvious hazard because the gaps of varying sizes were not visible in dim lighting, the appropriate arbitrator of that issue is the trier of fact. The First District Appellate Court further held reasonable minds could also conclude that the grate did present an open and obvious condition, but pedestrians would be distracted by looking for oncoming vehicles on the roadway. In light of the foregoing, the First District Appellate Court reversed the granting of summary judgment in favor of the defendants.

On May 28, 2021, Illinois Governor JB Pritzker signed Senate Bill 72, amending 735 ILCS 5/2-1303, providing for pre-judgment interest in certain actions. The controversial bill, opposed by many business interests, aligns Illinois with 46 other states that also impose pre-judgment interest. The provision goes into effect on June 21, 2021. Pre-judgment interest will be assessed at 6%, per annum, for all damages set forth by judgment, including past and future lost wages, past and future medical expenses, pain and suffering, but does not include punitive damages, sanctions, attorneys’ fees, and costs. The statute will apply to personal injury and wrongful death actions, whether alleging negligence, willful and wanton misconduct, intentional conduct, or strict liability. Pre-judgment interest can be reduced or eliminated by a qualifying settlement offer.

IF EMPLOYER ADMITS LIABILITY UNDER RESPONDEAT SUPERIOR, THERE IS NO CAUSE OF ACTION FOR NEGLIGENT HIRING OR NEGLIGENT ENTRUSTMENT.

In Fletcher McQueen v. Lavonta M. Green, et al., 2020 IL. App (1st) 190202, the Appellate

Court agreed that when an employer admits liability for a employee/driver’s behavior under

respondeat superior, Illinois law will not allow for a negligent hiring or negligent entrustment

cause of action to proceed.

In the McQueen case, Lavonta Green, an employee of Pan-Oceanic Engineering Company, Inc.,

was driving a truck with an attached flatbed trailer to pick up a skid. The trailer was improperly

loaded by a third party and Green called his employer, questioning whether it was okay to drive.

Green’s boss consulted someone and stated to Green it was alright to drive. While driving

subsequent to that conversation, Green noticed the trailer was acting up by bouncing and he hit

the brakes, and the vehicle spun out and struck a car driven by plaintiff. Plaintiff sued both

Green and Pan-Oceanic.

At trial, Pan-Oceanic admitted Green was its agent at the time of the collision. A jury instruction

dispute arose concerning the possible distribution of liability. The key tendered instruction

stated that if the driver (Green) was not found liable, Pan-Oceanic would not be liable. The court

struck that sentence and the final instructions indicated that if Green were liable, the employer,

Pan-Oceanic, must also be found liable.

The jury ruled in favor of plaintiff and against Pan-Oceanic but not against Green (the driver).

On Appeal, the employer contended that because it admitted liability for driver’s behavior under

respondeat superior, under Illinois law, any liability alleged under an alternative theory, such as

negligent hiring or negligent entrustment, was no longer relevant and should be dismissed.

The appellate court agreed with the employer, citing other jurisdictions where direct negligence

claims are disallowed once an employer admits liability under respondeat superior and there is

no exception for negligent training. Given the employer admitted liability under respondeat

superior, it could only be held liable to the extent that Green was held liable. Accordingly, the

trial court should have granted the employer’s motion for a new trial.

The appellate court agreed with the employer’s argument finding that the driver was not

negligent served as an absolute bar to liability, making the verdict finding them liable was legally

inconsistent with the one finding Green not liable.

The appellate court reversed and remanded the case for a new trial.

In Graham v. Lakeview Pantry, 2019 IL App (1st) 182003, the plaintiff brought a lawsuit against a tenant and landlord for negligent maintenance of premises. After visiting the tenant (Lakeview Pantry) located inside the landlord’s (Catholic Bishop of Chicago) premises, the plaintiff fell as he was attempting to exit the premises due to a change in elevation between the threshold and the ground outside.

The tenant, Lakeview Pantry’s motion for summary judgment was affirmed by the First District Appellate Court because it did not owe a duty of care to the plaintiff since the plaintiff’s injury occurred in a shared, common area of the property maintained and controlled by the Catholic Bishop of Chicago as the landlord. The First District Appellate Court held there is no legal requirement for a tenant to exercise control over an area when the lease agreement retains that possession and control for the landlord.

The landlord, Catholic Bishop of Chicago’s motion for summary judgment was also affirmed by the First District Appellate Court because of the construction statute of repose. The construction statute of repose,  735 ILCS 5/13-214(b), provides that no action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission. The evidence in the present matter revealed the landlord was in involved in the design, planning, supervision, observation, and management of construction activities in 2002 and 2003 but that the subject incident did not occur until 2015.

Recent favorable case law may help in reducing the number of meritless claims that Associations have to defend.

An Illinois condominium association won a favorable decision in Georgia Peters v. The Royalton Condominium Homes, Inc., 2019 IL App (1st) 180915-U. The Appellate Court denied setting a precedent that would have burdened associations. This case was unusual in that the plaintiff, a member of the Royalton Condominium Association (“Association”), was struck by another member of the Association, yet named the Association as a defendant in her lawsuit. An initial review of the facts revealed seems to show that the case appears to be a simple personal injury case involving a motor vehicle operator and a pedestrian. However, the plaintiff alleged multiple acts of negligence against the Association.

Plaintiff alleged that the Association’s parking lot was either negligently designed, that the Association negligently failed to take precautions to avoid pedestrians being hit, or negligently failed to have signs or devices that would govern the speed and direction of travel of vehicles entering or exiting the parking lot. Plaintiff submitted expert testimony that concluded that the Association had violated the standard of care for safe premises, as the association was not compliant with applicable code and standards for parking lot design.

In a clear victory for the Association, the Appellate Court ruled the plaintiff failed to show that the Association owed the plaintiff a duty,  primarily because the incident was not reasonably foreseeable. The Appellate Court found that the parking lot alone was not a dangerous condition to cause a risk of injury to the plaintiff. The Appellate Court emphasized that the plaintiff “was in the best position to prevent the injury and placing a burden on the defendant to guard against the negligence of others ‘would place an intolerable burden on society.’” Focusing on the factor that that the Association had no knowledge, either actual or constructive, of the alleged defective condition of the parking lot, the Appellate Court rightly refused to impose a standard that would mandate that Associations exercise a higher standard to discover defects or dangerous conditions existing on the Association property.

In Campbell v. Autenrieb, the Fifth District Court of Appeals held that a doctor’s cross examination testimony regarding alternative causes of a plaintiff’s injury, unsupported by any competent medical evidence, was inadmissible. 

The Second District Court of Appeals recently gave new life to a negligence action against K-Mart based upon slight circumstantial evidence that K-Mart’s employees left a shopping cart in Plaintiff’s path. 

The First District Court of Appeals held that a condominium association was not entitled to summary judgment pursuant to the open and obvious doctrine where it was reasonably foreseeable that Plaintiff would “forget” about a known defect. 

The Illinois Second District Court of Appeals recently held that an injury caused when the plaintiff fell in a pothole in a parking lot was actionable, despite the fact the pothole was only 1.5 inches deep.  In so holding, the Second District made it clear that the depth of the pothole is not the only factor to be considered when a defendant invokes the de minimis rule as a defense. 

The 7^th Circuit Court of Appeals recently held that an owner and occupier of land was not liable for an injury sustained by a minor caused by a condition of its property, holding that under Illinois law any duty that may have been owed to the minor was discharged because his parents were present at the time of the incident. 

The Illinois Supreme Court recently held that a settlement agreement entered into between the plaintiff and primary tortfeasor was made in good faith although the settlement was grossly disproportionate to the injuries suffered by the plaintiff. 

The Illinois Third District Appellate Court recently held that a defendant’s conduct does not waive the physician patient privilege unless he or she raises a health condition as a defense to the plaintiff’s allegations. 

The Illinois Supreme Court refused to extend the protections of the Local Governmental and Governmental Employee Tort Immunity Act (“Tort Immunity Act”) to injuries sustained on a paved bicycle path, finding that the Tort Immunity Act was only intended to provide immunity for injuries sustained on “unimproved paths.”

In Corbett v. The County of Lake, et al. the Supreme Court considered whether local governmental entities (Lake County and the city of Highland Park) were immune from liability for an injury suffered by bicyclist while using a paved bike path.  The path in question was located on property owned by a private entity, but leased to the Lake County and jointly maintained by the Lake County and Highland Park. 

Plaintiff was injured when a bicyclist in her group a bump on the trail and lost control of his bicycle, which then caused Plaintiff to fall and injure herself.  Plaintiff alleged that the Lake County and the Highland Park had knowledge that portions of the path were broken, bumpy, and elevated.  Lake County and Highland Park argued that section 3-107(b) of the Tort Immunity Act immunized the governmental entities from liability for Plaintiff’s injury because the path in question met the definition of a “trail” under the act.       

Section 3-107(b) of the Tort Immunity Act provides as follows: “neither a local public entity nor a public employee is liable for an injury caused by a condition of: (a) Any road which provides access to fishing, hunting, or primitive camping, recreational, or scenic areas and which is not a (1) city, town or village street, (2) county, state or federal highway or (3) a township or other road district highway. (b) any hiking, riding, fishing or hunting trail.” 

The Supreme Court concluded that paved paths or paths that were otherwise improved and/or maintained were not meant to be immunized by the plain language of this section.  The Supreme Court held that the use of the words “hiking,” “fishing,” and “hunting” was evidence of the legislature’s intent that this section apply to “primitive, rustic, or unimproved trails,” but not improved or maintained trails.  The Supreme Court further found that allowing a public entity to build and maintain a trail and represent it as safe, but then to allow that entity to escape liability for the injuries caused by the misconduct of the public entity was an absurd construction. 

The Supreme Court ultimately held that Section 3-107(b) applied only to “primitive or rustic trails” which retain their “original, natural surface and not trails improved with asphalt, concrete, crushed aggregate, or similar finishes.”      

The Third District Court of Appeals recently determined that a Plaintiff can only recover damages against an owner and/or occupier of land where the plaintiff suffered a physical injury as a result of a condition of the property.  

In the consolidated actions of C.H. v. Pla-Fit Franchise et. al., and Otternes v. Pla-Fit Franchise et. al., members of a Planet Fitness gym brought an action for emotional distress after discovering they were secretly videotaped while using the tanning room.  They asserted claims against the franchisee and the franchisor as owners and occupiers of the property where the incident occurred, seeking recovery for common law negligence and for violations of the Premises Liability Act.  Plaintiffs alleged that both the franchisor and the franchisee owed them a special duty as a business invitor to protect them from the criminal acts committed by a third party. 

 On appeal, the Third District considered two issues: (1) whether an owner or occupier of land could be liable for criminal and/or tortious invasion of privacy committed by a third party; and (2) whether an owner or occupier of land was liable to the defendants for failing to exercise reasonable care to ensure the privacy of its members in violation of the Premises Liability Act (740 ILCS 130/2).   

Is a Franchisor Liable for the Criminal and/or Tortious Acts of a Third Party? 

The Third District noted that while generally a possessor of land does not owe a duty to protect an invitee from the criminal acts of a third party, such a duty can exist where there is a special relationship between the parties, such as a business invitor invitee relationship.  However, the Third District determined that the plaintiffs could not recover from either the franchisor or the franchisee, because the duty owed by an owner or occupier of land is limited to protecting an invitee from physical harm.  The Third District noted that § 344 of the Restatement (Second) of Torts limits liability in these instances to where a third party suffers physical harm. 

Relying on this principle, the Third District held that while Plaintiffs were able to successfully show that the franchisee owed them a special duty as a business invitor, they did not state a proper cause of action for negligence, as they did not allege a physical injury.  The Third District also declined to assert liability against the franchisor, because while the franchisor voluntarily inspected the premises, the franchisor did not own the property, and the day to day business operations were controlled by the franchisee. 

Does a Property Owner Owe a Duty of Care to Ensure the Privacy of its Members under the Premises Liability Act?

The Third District also determined that neither the franchisee nor the franchisor were liable under the Premises Liability Act.  The Third District noted that 740 ILCS 130/2 imposes a duty on owners or occupiers of land to exercise "reasonable care for the state of the premises or the acts done or omitted on them."  The court looks at four factors to determining if a duty of care exists under the Premises Liability Act: (1) foreseeability; (2) likelihood of injury; (3) magnitude of the burden placed on the owner or occupier of land to guard against the injury; and (4) the consequences of placing a burden on the defendant.  The Third District, however, after considering §343 of the Restatement (Second) of Torts, again found that Plaintiff's did not allege a compensable injury, since they did not suffer physical harm.  

Conclusion

            In this case, the Third District makes it clear that in order to recover against an owner or occupier of land for negligence, a plaintiff must have suffered physical harm, even if a special relationship exists such as the one between a business invitor and business invitee.  As such, this case makes it clear that a plaintiff cannot recover damages for emotional distress against an owner or occupier of land, even where a third party commits a criminal or tortious act.  

The First District Appellate Court recently clarified when the social media activity of a former employee may violate a non-competition and/or non-solicitation agreement.  The First District specifically looked at whether emails sent through LinkedIn violated the employee's a non-competition agreement, which was an issue of first impression in Illinois.  

In Bankers Life & Casualty v. American Senior Benefits, LLC, 2017 IL App (1st) 160687 a former employee of Bankers Life, Gregory Gelineau, began to work for American Senior Benefits.  Bankers Life alleged that after Gelineau began to work for American Senior Benefits, he sent LinkedIn invitations to his former co-workers.  However, once these individuals clicked on his profile, they would see a job posting for American Senior Benefits.  Bankers Life argued that by having this job posting visible, Gelineau's action of inviting Bankers Life employees to connect was an attempt to induce those individuals to leave Bankers Life for American Senior Benefits.  

While acknowledging that the actions of a former employee on LinkedIn and other social media sites could violate a non-competition and/or non-solicitation agreements, the First District reiterated that the content of the message is the controlling factor in this analysis.  The First District noted that Gelineau sent only generic e-mail messages that invited recipients to form a “professional connection,” and emphasized that these emails did not: (1) discuss either Bankers Life or American Senior Benefits; (2) suggest that the recipient of the e-mail view a job posting on Gelineau’s page; or (3) otherwise solicit them to leave their employment.  The First District further held that Gelineau’s job posting on his public LinkedIn page did not constitute improper solicitation, and that he could not be held responsible for an employee accepting his invitation to connect, and then accessing this job posting.  In light of these considerations, the First District determined that Gelineau did not violate neither his a non-competition nor his non-solicitation agreement.   

The First District’s decision was consistent with the holdings of state and federal courts nationwide regarding this issue. 

·         In BTS, USA, Inc. v. Executive Perspectives, LLC, 2014 WL 6804545, the Connecticut Superior Court held that a LinkedIn post from a website designer encouraging contacts to check out a new website did not show that the former employee was soliciting customers from BTS. 

·         In Enhanced Network Solutions Group, Inc. v. Hyypersonic Technologies Corp., 951 N.E.2d 265, the Indiana Court of Appeals held that the posting of a job opportunity on a LinkedIn page did not amount to solicitation. 

·         In Invidia, LLC v. DiFonzo, 2012 WL 5576406, the Massachusetts Superior Court held that becoming friends with former clients on Facebook did not violate the employee’s a non-competition agreement. 

·         In Pre-Paid Legal Services Inc. v. Cahill, 924 F. Supp. 2d 1281, the United States District Court for the Eastern District of Oklahoma held that a former employee’s post on Facebook promoting his new employer’s product which was viewed by former colleagues did not violate the employee’s non-solicitation agreement. 

As shown by these cases, an employee will not be found to have violated his/her a non-competition and/or non-solicitation agreements by merely sending a generic request to connect through a social media site, or by publishing a job posting or other content on their page.  However, if the content of these messages shows an intent to solicit the former employer’s business and/or employees, the social media activities of a former employee can be found to violate a non-competition and/or non-solicitation agreement.  

The First District Appellate Court of Illinois recently declined to extend the scope of the implied warranty of habitability of construction to include architects, engineering firms, and suppliers, while reaffirming its application to subcontractors under limited circumstances. 

Recently, the Illinois Appellate Court for the First District decided JJR, LLC v. Turner, 2016 IL App (1^st) 143051, in which it analyzed the elements of certain claims under Section 12 of the Illinois Securities Law of 1953 and, for the first time, addressed the requirements for a claim under Section 12(H).

On September 22, 2016, in Kakos v. Butler, 2016 IL 120377, the Illinois Supreme Court held that the six-person jury statute in civil cases, Public Act 98-1132 (“Act”), is unconstitutional. The Act took effect on June 1, 2015. The Act reduced the number of jurors in civil trials from twelve to six and also increased juror pay.

Several decisions handed down in the past few months have potential significant impacts on how businesses operate. Cases included those addressing trademark infringement, price discrimination, shareholder suits, securities litigation, investment adviser regulation, and mortgage foreclosure. For brief synopsis of selected cases, please see below. Full opinions may be obtained by following the link. For advice about these or other issues, please contact the business attorneys at Skawski Law Offices.

A person’s mental health and psychiatric or psychological treatment is the epitome of personal, private information. Recognizing the sensitive nature of such information, Illinois enacted the Mental Health and Developmental Disabilities Confidentiality Act. However, the protections provided by the Act, while substantial, are not absolute. Several exceptions exist and attorneys regularly attempt to obtain such information during litigation. As a result, Illinois courts – including recently in a case handled by our firm, Thompson v. N.J., 2016 IL App (1^st) 142918 – have repeatedly acted to clarify a patient’s privilege over his or her mental health records.