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Brady, Connolly & Masuda, P.C. Wins for General Contractor Before Appellate Court

June 2015

On March 20, 2015, the Appellate Court of Illinois, First District, affirmed summary judgment in favor of general contractor, F.H. Paschen, S.N. Nielsen, Inc., (Paschen) in Kevin E. O'Gorman v. F.H. Paschen, S.N. Nielsen, Inc., et al. 2015 IL App (1st) 133472. Paschen was represented by attorney W. Scott Trench in the trial court and on appeal. Paschen contracted with the City of Chicago to act as a general contractor for the conversion of a former police station into a custodial youth center. The plaintiff, a general foreman of general trades for the City of Chicago, accessed the roof of the building through a roof hatch to inspect a heating and air conditioning unit. The plaintiff stepped on a piece of wood with an embedded nail as he exited the roof hatch. While attempting to remove the piece of wood from his foot, the plaintiff fell through the roof hatch 13 to 15 feet to the floor below and suffered a herniated cervical disc. The plaintiff alleged the wood was construction debris from Paschen's masonry subcontractor, Old Veteran, which was performing work adjacent to the roof hatch. The plaintiff argued Paschen, in its contract with the City of Chicago, was responsible for job site safety and housekeeping. The trial court granted summary judgment in favor of Paschen, holding that Paschen delegated the responsibility for safety and housekeeping to its subcontractor, Old Veteran, based on the language in Paschen's subcontract and, therefore, owed no duty to the plaintiff pursuant to Restatement (Second) of Torts, §414.

Alleged Joint Venturer Subject to Vicarious Liability After Waiving Exclusive Remedy Defense on Appeal

May 2015

In Hiatt v. Western Plastics, et al., 2014 IL App(2d) 140178, the plaintiff was employed by Western Plastics, Inc. (Western) and sustained injuries when his arms were caught in a machine used to produce plastic sheets. The plaintiff filed suit against Illinois Tool Works, Inc., (ITW), alleging that ITW and Western were engaged in a joint venture and, therefore, ITW was vicariously liable under agency principles for the negligent acts or omissions of Western. ITW and Western entered into a manufacturing agreement, under which Western agreed to manufacture plastic sheets for ITW and to work with Western to achieve improvements in the manufacturing process and in product designs. The manufacturing agreement also included a specific provision stating that Western was an independent contractor and neither Western nor ITW were "the agent of the other for any purpose whatsoever."

The trial court granted summary judgment in favor of ITW finding no joint venture relationship existed between ITW and Western. On appeal, the Illinois Appellate Court for the Second District reversed, finding a question of fact existed as to the existence of a joint venture relationship between the two companies based on ITW's contributions to the manufacturing process, exercise of control over product specifications, and agreement to share any financial gains with Western resulting from cost improvements.

Seventh Circuit Finds No Retaliation or Discrimination

May 2015

By Andrew R. Makauskas

Sklyarsky v. Harvard Maintenance, Inc., 14-2768 (7th Cir. 2015), involved claims brought by a custodian, Yaroslav S. Sklyarsky, a custodian at a Chicago office building. In April of 2010, he began working for Harvard Maintenance when that company was awarded the building's contract for janitorial services. Sklyarsky was disciplined five times between August 2010 and his firing in January 2013. Discipline was administered for the following alleged activities:

  • Insubordination after being assigned extra work on a day the staff was short-handed;
  • Insubordination when he searched for a seniority list in Harvard's office despite being told to stay out;
  • Poor performance for not adequately cleaning desks in the offices;
  • A one-day suspension for inadequate cleaning and for being "loud and disrespectful;"
  • Discussing personal matters on the job.

Civil Jury Trials: 6 or 12 Members

May 2015

Public Act 98-1132 amended 735 ILCS 5/2-1105(b), which sets the number of members on civil juries. The amended statute holds civil trials will now be tried by a 6 person jury. This adversely affects the defense bar in Illinois. Studies show 6 person juries are more favorable to the plaintiff. This also explains why the plaintiff's bar supported the amendment.

A recent article written by Dennis Dohm, a retired Cook County Circuit Court judge, shows why amended Section 2-1105(b) is unconstitutional. When the statute takes effect on June 1, 2015, the defense bar should object to its implementation.

Civil juries have been made up of 12 members since Article II's Bill of Rights of the 1870 Illinois Constitution was written. In addition, Section 13 of Article I in the 1970 Illinois Constitution titled "Trial by Jury" states "[t]he right of trial by jury as heretofore enjoyed shall remain inviolate." Section 13 of the 1970 Illinois Constitution holds the right to a 12 person jury shall never be violated.

New Legislation in Illinois: Employers to Provide Reasonable Accommodations for Medical and Common Conditions Related to Pregnancy

November 2014

By Francis M. Brady

The Pregnancy Discrimination Act of 1978 and the Illinois Human Rights Act have long prohibited discrimination against pregnant women in the workplace. Recent amendments to the Illinois Human Rights Act, 775 ILCS 5/2-102, which take effect on January 1, 2015, will provide additional rights to employees in Illinois beyond protection from discrimination based on pregnancy. Under the amended statute, employers in Illinois will be required to provide reasonable accommodations for any medical or common condition related to pregnancy or childbirth if requested by an employee. The amended statute provides a non-exclusive list of the types of reasonable accommodations employers may be required to provide. For example, reasonable accommodations may include: breaks for periodic rest; private non-bathroom space for breastfeeding or expressing breast milk; seating; assistance with manual labor; modified work schedule; and acquisition or modification of equipment.

The employer may request documentation from the employee's healthcare provider concerning the need for the requested reasonable accommodation to the same extent documentation is requested for conditions related to disability, so long as the employer's request for documentation is job related and consistent with business necessity. It is the obligation of the employee requesting a reasonable accommodation to supply this documentation to the employer.

Supreme Court Clarifies Distraction Rule

November 2014

By Andrew R. Makauskas

Bruns v. The City of Centralia, 2014 IL 116998, involved a defective sidewalk condition that was "open and obvious" and an argument by the Plaintiff that the distraction exception to the open and obvious rule applied. The plaintiff, Virginia Bruns, 79 years old at the time of the incident, parked her vehicle in front of her eye clinic in Centralia, Illinois. While walking toward the clinic, she stubbed her toe on a crack in the sidewalk, causing her to fall and sustain injuries. At the time of the fall, the plaintiff was looking "toward the door and the steps" of the clinic. She was previously aware of the defect in the sidewalk, which she noticed every time she went to the clinic. She testified that she had been to the eye clinic nine times during the preceding three months.

The defect had developed because roots from a nearby tree had caused the sidewalk to crack and become uneven. In 2009, an employee of the eye clinic had contacted the City of Centralia about the defect and offered to remove the tree at the clinic's expense. The City would not authorize removal because of the 100-year-old tree's historic significance. Again, in 2009, a clinic employee contacted the City after learning that someone had tripped and fallen on the sidewalk.

  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
10 South LaSalle Street, Suite 900
Chicago, IL 60603
Phone: 312-425-3131
211 Landmark Drive, Suite C2
Normal, IL 61761
Phone: 309-862-4914
1015 Locust Street, Suite 914
St. Louis, MO 63101
Phone: 314-300-0527
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