Illinois Appellate Court Refuses Premises Liability Negligence Claims versus Condo Association

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.

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Evidence of Alternate Causes of Plaintiff’s Injuries Must be Supported by Medical Evidence or Expert Testimony

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. 

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Retail Giant Not Entitled To Summary Judgment Despite Scarce Evidence of Negligence By Its Employees

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. 

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Plaintiff’s Knowledge Of Defective Premises Condition Does Not Bar His Recovery Against Condominium Association

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. 

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Municipality Cannot Escape Liability Under The De Minimis Rule

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. 

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Starbucks Store Escapes Liability: Owner Occupier Of Land Does Not Owe A Duty of Care To A Minor When Minor’s Parents Are Present

The 7th 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. 

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Illinois Courts Do Not Have To Consider A Non-Settling Defendant’s Rights When Making A Good Faith Finding Regardless Of The Degree Of Fault Of The Settling Defendant

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. 

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Illinois Appellate Court Protects Defendant’s Medical History From Disclosure

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. 

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Recent Illinois Supreme Court Ruling Finds Public Entities Can Be Found Liable For Injuries Which Occur On Paved Trails

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.”      

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Premises Liability and Invasion of Privacy: Physical Harm Required to Recover Against a Business Invitor

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.  

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When Social Media Activity Violates Non-competition and/or Non-solicitation Agreements

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.  

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Illinois Appellate Court Limits the Reach of the Implied Warranty of Habitability of Construction

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. 

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No Reliance Required: Clarification on Elements of Section 12(H) Claim Under Illinois Securities Laws

Recently, the Illinois Appellate Court for the First District decided JJR, LLC v. Turner, 2016 IL App (1st) 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).

 

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Good News For Defendants In Civil Trials - Illinois Supreme Court Holds Six-Person Jury Statute In Civil Trials Is Unconstitutional

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.

 

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Business Law Update

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.

 

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Brief Overview of Illinois Mental Health and Developmental Disabilities Confidentiality Act

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 (1st) 142918 – have repeatedly acted to clarify a patient’s privilege over his or her mental health records.

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First District Court of Appeals Limits Possibility of Summary Judgment Based on Open and Obvious Danger

On August 29, 2016 the First District Appellate Court held in Bulduk v. Walgreen Co., 2015 IL App (1st) 150166-B, that it was a question of fact for a jury to determine whether a large cleaning machine in the middle of an aisle of a store was an open and obvious danger.

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Seventh Circuit Reluctantly Says No Title VII Protection for Sexual Orientation

On July 28, 2016, the Seventh Circuit Court of Appeals reluctantly adhered to prior precedent that claims for sexual orientation were not cognizable under Title VII in Hively v. Ivy Tech Community College. In Hively, after filing a Charge of Discrimination with the EEOC asserting a claim for discrimination based on sexual orientation, the plaintiff filed a complaint in federal district court in Indiana alleging she was discriminated against based on sexual orientation in violation of Title VII. The federal district court granted the defendant’s motion to dismiss since Title VII does not apply to claims of sexual orientation discrimination.

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What Happens When A Policyholder Settles A Claim Without Telling Its Insurer?

*This article originally appeared in the April 2015 edition of "The Policy," published by the Illinois State Bar Association.

 

Insurance is a wonderful thing. It allows business owners and individuals to pay another party to assume the risk of potential future liability. But in order for an insurer to agree to take on that risk, the policyholder must agree to the provisions contained in the insurance contract, which provide certain rules the policyholder must follow to preserve its right to coverage.

 

One such provision is the “voluntary payment” provision. Often times, the “voluntary payment” provision will be lumped in with the “cooperation clause,” but these are actually separate provisions imposing separate, though related, obligations on the policyholder. While the standard “cooperation clause” requires a policyholder to “[c]ooperate with [the insurer] in the investigation or settlement of the claim or defense against the ‘suit,’”the typical “voluntary payment” provision states, “the insured shall not ‘except at [its] own cost, voluntarily make a payment, assume any obligation, or incur any expense.’” The “voluntary payment” provision specifically prohibits the policyholder from settling with an injured plaintiff without first obtaining the insurer’s consent and was created to prevent collusion between the policyholder and the injured plaintiff. Insurers seek to prevent situations such as a policyholder settling a case for a larger sum in exchange for the plaintiff agreeing only to enforce the settlement to the extent it is funded through the policyholder’s insurance.

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Who Can Enforce A Contract?

Common sense suggests that only the parties to a contract have authority to enforce its terms and, consequently, authority to maintain legal action in the event of a breach. However, under certain circumstances, a third-party may possess rights of enforcement. The Illinois Appellate Court recently revisited this issue in Carlson v. Rehabilitation Institute of Chicago, 2016 IL App (1st) 143853.

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