Appellate Court Affirms Dismissal of School District Pursuant to the Tort Immunity Act

September 2014

In Carlos Malinski v. Grayslake Community High School District 127, 12 L 272, the plaintiff was a student at Grayslake North High School. During school hours and on school property, he was verbally and physically abused, including being punched and pushed. The plaintiff was attacked specifically on November 16, 2009 and had informed school officials on numerous occasions about being bullied by other students.

The plaintiff had several email exchanges with Dean Athena Toliopoulos, stating he was in danger due to bullying and he feared the violence against him would escalate if the problem was not addressed. The plaintiff also had continuous contact with Joseph Volante, a school counselor. He related the bullying events to Mr. Volante and stated they would not stop unless some action was taken.

Matters came to a head on November 6, 2009 when plaintiff, in an email to Mr. Volante, advised him the bullying was getting worse and he wanted to commit suicide. On November 12, 2009, the plaintiff met with school administrators and told them other students were subjecting him to bullying.

First Dirstrict Upholds Summary Judgment in Favor of Property Owner on Construction Negligence and Premises Liability Claims

September 2014

By Molly P. Connors

In a recent case, Lee v. Six Flags Theme Park, Inc., 2014 IL App (1st) 130771, the First District Appellate Court ruled Six Flags entitled to summary judgment against claims of construction negligence and premises liability claims. The plaintiff was the wife of a heavy equipment mechanic who fell to his death while dismantling the "Splash Water Falls" ride. The decedent was employed by Campanella & Sons ("Campanella"), which Six Flags hired to remove structural steel from the ride.

In analyzing the construction negligence claim, the court first considered whether Six Flags retained the requisite amount of control to be vicariously liable under section 414 of the Restatement (Second) of Torts ("section 414"). The court stated there were three types of control: contractual, supervisory, and operational.

Regarding contractual control, the court found the contract between Campanella and Six Flags required Campanella "to provide and pay for all labor, materials, equipment, and other facilities and services necessary for the proper execution and completion of the work." The contract also made Campanella solely responsible for the means, methods, techniques, procedures and for coordinating the work. The court recognized the contract required Campanella to follow Six Flags' safety guidelines and other safety requirements and gave Six Flags the right to inspect the project for unsafe conditions. However, the court stated implementing a safety program and retaining the right to inspect work do not constitute retained control under section 414. Additionally, the court noted the plaintiff failed to show how any of Six Flags' safety guidelines or requirements affected the means and methods of Campanella's work.

Application Of De Minimis Rule Upheld By Second District

June 2014

By Andrew R. Makauskas

In Charles L. St. Martin v. First Hospitality Group, Inc., d/b/a Hilton Chicago/Indian Lake Resort, 2014 Ill.App. (2d) 130505, the plaintiff alleged he was injured when he tripped and fell on an uneven portion of sidewalk outside the hotel owned by defendant. At his deposition, plaintiff testified that on the day of the fall, he was attending a seminar at the hotel. He went outside to smoke a cigarette at some benches 10 to 12 feet from the main entrance where an ashtray was located. When he returned, he tripped over uneven slabs of concrete a couple of feet away from one of the doors at the main entrance to the hotel. Photographs showed the area was just before the entryway rug and under a roof that extended over a drive-up area at the front of the hotel. Plaintiff's brother later measured the height difference between the concrete slabs at 1 ½ - 1 ¾ inches.

The defendant provided photographs which were purportedly taken by the hotel's manager the day after the fall. The photographs showed the difference in height to be around ½ inch. An expert retained by defendant observed the area approximately 29 months after the incident date and measured the height difference at under an inch. In an affidavit, the expert stated the sidewalk would heave and move during normal winter conditions and that the varying alignments of the concrete slabs were typical, commonplace and expected. He opined the area was not in need of repair or replacement and that it did not constitute a hazardous condition.

The defendant moved for summary judgment, arguing it did not owe plaintiff a duty of care because the defect in the sidewalk was de minimis. Plaintiff argued the de minimis rule was inapplicable because of how near the defect was to the front doors. Thus, he maintained, there was an issue of fact as to whether aggravating circumstances existed. The trial court granted the motion for summary judgment, finding the defect was de minimis as a matter of law and further noting the affidavit of defendant's expert was unrebutted. Plaintiff appealed.

Employers Liability Insurance: The Kotecki Coverage Exclusion And The Importance Of A Reservation Of Rights Letter

June 2014

In Illinois, an employer's contribution liability cannot exceed the amount of workers' compensation payments in accordance with the Illinois Supreme Court decision Kotecki v. Cyclops Welding Corp., 146 Ill.2d 155, 166 Ill.Dec. 1, 585 N.E.2d 1023 (1991). This well-known rule of law in Illinois is commonly referred to as the "Kotecki" capon damages. Subsequent to the Kotecki decision, Illinois courts held that an employer may waive its Kotecki protection by contract and thereby become potentially liable for its full pro rata See Liccardi v. Stolt Terminals, Inc.share of contribution liability., 178 Ill.2d 540, 227 Ill.Dec. 486, 687 N.E.2d 968 (1997); Braye v. Archer Daniels-Midland, Co., 175 Ill.2d 201, 222 Ill.Dec. 91, 676 N.E.2d 1295 (1997). A Kotecki waiver is typically found in a contractual indemnity provision, where a party agrees to indemnify and hold harmless another party.

The issue of coverage under an employers liability policy for liability above the Kotecki cap was addressed in Christy-Foltz, Inc., v. Safety Mutual Casualty Corporation, 309 Ill.App.3d 686, 722 N.E.2d 1206, 243 Ill.Dec. 137 (4th Dist. 2000). In Christy-Foltz, the plaintiff insured filed a declaratory judgment action seeking a determination that its employers liability policy covered all contribution liability, including any liability above the Kotecki cap. The defendant insurer, Safety National, conceded that it owed coverage for any judgment up to the Kotecki cap, but denied any duty to cover damages above the Kotecki cap. Safety National relied on a policy provision which excluded coverage for "any loss or claim expenses voluntarily assumed by the employer under any contract or agreement, express or implied." The Appellate Court held the plaintiff's contractual Kotecki waiver constituted a voluntary agreement to assume liability beyond the Kotecki limit on damages and, therefore, the policy did not provide coverage for any liability above the Kotecki cap.

Legislation Expanding Employees Right to Sue Safety Consultants Awaits Vote in Springfield

May 2014

By Francis M. Brady

In 2012, the Illinois Appellate Court ruled that a worker cannot sue a consultant (styled "service organizations" by the Court to conform with language of the Illinois Workers' Compensation Act) based on negligent safety advice or service the consultant provides to the worker's employer. Mockbee v. Humphrey Manlift Co., Inc., et al., 973 N.E. 2d 376, 362 Ill. Dec. 276 (May 18, 2012).

Now, in a vote of 35-19, the Illinois Senate has passed a measure aimed at overruling the Appellate Court. Senate Bill 3287 seeks to amend the Illinois Workers' Compensation Act so that only service organizations "wholly owned" by the employer, its insurer or broker, are, like the employer itself, immunized from civil suit under the exclusive remedy provisions of the Illinois Workers' Compensation Act.

Opponents of Senate Bill 3287, including numerous business and insurance associations, argue that "erosion of the exclusive remedy provision will create more litigation and higher costs for employers, both public and private." The economic impact will be most keenly felt by small employers that typically cannot afford to employ full-time safety professionals and must hire outside consultants. Obviously, these outside consultants will have to pay more for insurance costs which will be passed along to small employers. There may be fewer inspections done and the end result will be that the workplace will be "exposing more workers to injury."

Ramirez v. FCL Builders, Inc., 2013 IL App (1st) 123663

March 2014

By Andrew R. Makauskas and Molly P. Connor

The plaintiff, an employee of Sullivan Roofing, Inc., ("Sullivan"), was hurt pushing heavy material across the roof of a warehouse. Sullivan was a subcontractor of FCL Builders, Inc., ("FCL"), the general contractor for the warehouse project. The roofers had been using all-terrain vehicles, ("ATVs"), to move the material, but were told to stop after the practice was determined to be damaging to the roof. The plaintiff brought a negligence claim against FCL. Sullivan was not a party to the litigation.

At the conclusion of the trial, the jury found in favor of the plaintiff and found he suffered $1.985 million in damages. On the jury verdict form, the jury allocated fault as follows:

Plaintiff: (20%)
FCL: (40%)
Sullivan: (40%)

The verdict was $1.58 million after reduction for plaintiff's share of fault.