The Storm that Never Arrived – An Update on Civil Litigation and COVID-19

January 2023

Robert J. Schwarz

On January 30, 2019, only four short years ago, viral videos of pots of boiling water being tossed into the air and freezing instantly were all the rage as temperatures hit record lows and the “polar vortex” brought life to a halt in northern Illinois. Less than one year later, the COVID-19 virus emerged and brought the entire world to a standstill. The massive impact of the ensuing global pandemic on our society will undoubtedly be felt and debated for many years to come.

As we continue to emerge into this new, post-pandemic world, the courts have begun grappling in earnest with sporadic litigation issues brought about by the ubiquitous virus. Workplace COVID-19 lawsuits include not only employees or contractors alleging they contracted the virus while working at their job site, but also, on rare occasions, so-called “take home” cases. “Take home” COVID-19 cases allege they were infected by a household member that contracted the virus at work.

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Employer’s Liability for an Employee’s Auto Accident

June 2022

Emma L. Knowles

Where vicarious liability for its employee’s conduct is admitted by an employer, can that employer also be held directly liable for its own negligence in a separate cause of action, even if its employee’s conduct is not negligent? According to the recently decided Illinois Supreme Court case, McQueen v. Green, 2022 IL 126666, the answer is yes, if there are allegations against the employer which are not rooted in the employee’s conduct.

At its heart, a claim brought under the theory of respondeat superior is a derivative claim, meaning that an employer’s liability flows, or derives, from the conduct of its employee. But what happens when an employer’s conduct is allegedly negligent in a manner that is completely separate from its employee’s conduct? This opinion leaves no doubt that in certain circumstances, Illinois employers will be exposed to additional liability for their own conduct.

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Prepping for Winter

June 2022

Catherine L. Carlson

While basking in the summer sunshine, it’s the perfect time to relax by the pool and contemplate all the frozen fun of winter. The Illinois Appellate Court in the Third District recently issued an opinion about the treats that Jack Frost leaves behind.

In the matter of Gore v. Pilot Travel Centers, LLC, the Appellate court affirmed the summary judgment in favor of the defendant premises owner on the basis that plaintiff failed to provide any evidence that defendant’s ice removal efforts created an unnatural accumulation of ice on the sidewalk where he fell. In this case, Plaintiff Gore fell on the sidewalk at a gas station owned by the Defendant, Pilot Travel Centers. The plaintiff introduced evidence that there had been wintery precipitation a few days prior to the incident. On the date of the incident, he alleged that the gas station failed to remove snow and ice from the sidewalk where the plaintiff fell in the afternoon on December 19, 2016, when the temperatures were a chilly 15°F.

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Illinois Prejudgment Interest Act Ruled Unconstitutional by Cook County Judge

June 2022

Jeffrey F. Clement

Judge Marcia Maras of the Circuit Court of Cook Country recently issued a ruling finding the Illinois prejudgment interest act to be unconstitutional. The ruling is welcome for multiple reasons, including the impending June 30, 2022 deadline in many cases for defendants to make a settlement offer to potentially avoid the imposition of prejudgment interest.

As background, effective July 1, 2021, the Illinois legislature amended 735 ILCS 5/2-1303 to provide for the awarding of prejudgment interest at a rate of 6% per annum in all actions to recover damages for personal injury or wrongful death resulting from or occasioned by negligence, willful and wanton misconduct, intentional conduct or strict liability. The only way to avoid interest was to make a written settlement offer which ends up being equal to or greater than the ultimate judgment. The written settlement offer must be made within 12 months of July 1, 2021 or the filing of the action, whichever is later.

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Collateral Estoppel Applied in Case Involving Workers’ Compensation Settlement

Armstead v. Natl’l Freight, Inc., 2020 IL App (3d) 170777

Dylan R. Besser

I. Introduction

Question 1 – If, in the underlying workers’ compensation claim, a claimant only establishes injury to his knee, can this claimant then, in a subsequent civil lawsuit, claim injuries above and beyond what was established in said workers’ compensation claim? Based on Armstead v. Nat’l Freight, Inc., 2020 IL App (3d) 17077, the answer is no.

Question 2 – What is the proper doctrine for moving for summary judgment on a plaintiff’s tort claim in a situation like the above? Would Plaintiff’s tort claim be barred under the doctrines of (1) collateral estoppel, (2) res judicata, or (3) judicial admission? The appellate court ruled Plaintiff’s claim was barred under collateral estoppel.

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What Happens in Kane County…Should Not Stay in Cook County

September 2021

By: Robert J. Schwarz

Recently, the Illinois Appellate Court, First District issued an opinion that should prove to be a valuable tool when confronted with a forum shopping plaintiff looking to file suit in a more plaintiff-friendly jurisdiction. In Matthiessen v. Greenwood Motor Lines, Inc., 2021 IL App (1st) 200405-U, the Court established that, despite reports of its death, the doctrine of forum non conveniens is actually alive and well in Illinois.

The doctrine of forum non conveniens is an equitable remedy based on considerations of fundamental fairness and effective judicial administration. The circuit court is given the discretion to decline jurisdiction in cases where another forum with proper jurisdiction and venue would better serve the ends of justice.

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