Another Victory for Snow Removal Contractors
Another Victory for Snow Removal Contractors
Jordan v. Kroger Co., 2018 IL App (1st) 180582
June 2019
By: William F. Moore
On December 18, 2018, snow removal contractors in Illinois scored another victory in their never ending battle against slip-and-fall claims. The First District of Illinois Appellate Court affirmed summary judgment in favor a snow removal contractor finding that business invitees are not third-party beneficiaries of snow and ice removal contracts.
In Jordan v. Kroger Co., 2018 IL App (1st) 180582, the Plaintiff slipped and fell on a formation of black ice outside of a grocery store. Without any evidence to establish that the black ice was an unnatural accumulation caused or created by the landowner or snow removal contractor, the Plaintiff turned to the contract between the landowner and a local snow removal contractor in an attempt to create a question of fact and survive summary judgment. Relying on Section 324A of the Restatement (Second) of Torts, the Plaintiff argued that both the landowner and the snow removal contractor voluntarily undertook a duty to remove both natural and unnatural accumulations of snow and ice on the property and, therefore, they both may be held liable in tort to third parties for negligently failing to fulfill their assumed duties and allowing black ice to form in the parking lot.
Relying on Wells v. Great Atlantic & Pacific Tea Co., 171 Ill.App.3d 1012 (1st Dist 1988), where the injured party was similarly unable to present any evidence that the ice she slipped on was an unnatural accumulation, but argued nonetheless that the snow removal contractor could still be held liable based on its failure to completely remove all snow from the premises as required under its contract with the landowner, the Court restated its long held position that merely entering into a snow removal contract does not create a duty on the part of the contracting parties to protect third parties from natural accumulations of snow and ice where the third party does not actually rely on the contract.
Must Petitioner Take a Transitional Job?
Must Petitioner Take a Transitional Job?
May 2019
By: Francis M. Brady
“The Act is meant to compensate a claimant for economic disabilities that diminishes his value in the labor market…” And of course “(it’s) remedial in nature.”
These statements and pronouncements of their ilk are familiar to Illinois employers and representatives. Made by the Commission or Courts, they instinctively lead to the sinking realization that: “We’ve lost another one.”
Precision in Litigation Cuts Large MSA by Almost Half
Precision in Litigation Cuts Large MSA by Almost Half
May 2019
The claimant, a certified nursing assistant, injured her right hand when a patient grabbed it, squeezing and twisting.
Her treating physician found no significant bone or muscle injury, but nevertheless diagnosed complex regional pain syndrome of the right upper extremity. Within eleven months of the accident, a spinal cord stimulator was implanted to control claimant’s right hand and arm pain.
Over a year later, the claimant first complained of left hand and thorax pain. The claimant’s physician diagnosed complex regional pain syndrome “spreading to the left upper extremity.” The employer’s examining expert disagreed, noting not only the time delay in reporting left side symptoms, but also that the claimant’s left-sided symptoms were not consistent with chronic regional pain syndrome. There was also an issue as to the level of work the claimant could perform on a permanent basis.
Limiting The Impact of Opioids
Limiting The Impact of Opioids
April 2019
By: Francis M. Brady
Outside of “medical marijuana,” the term most often heard recently regarding healthcare in Illinois, and by extension, workers’ compensation practice, is “opioid crisis.” Unlike the alarm over marijuana, where there is no actual experience underlying the sense of foreboding, concerns over opioid usage are founded upon hard data.1
Per the Illinois Department of Public Health (IDPH), opioids are “a class of drugs that include heroin; common prescription pain relievers such as oxycodone and hydrocodone (Vicodin, Percocet, Oxycontin); and, synthetically manufactured analogs such as Fentanyl.” The IDPH warns that “…physical tolerance to opioids can develop in as few as 2-3 days of continuous use...opioids affect respiratory regulation of the brain and an overdose can cause someone to stop breathing…”
Stormy Weather For Parking Lot Falls
Stormy Weather for Parking Lot Falls
April 2019
Employee accidents in parking lots on the employers' premises can present a "slippery" analysis in determining compensability. A recent decision from the Court of Appeals, Cher Smith v. IWCC et al., suggests a new standard for determining compensability in these cases.
Before discussing the case facts, we should point out a procedural issue. The Smith case was decided under Rule 23 meaning it will not be published and is not controlling on any future case. That could change but as of right now, publication is not expected.
The Hand That Feeds Us
“The Hand That Feeds Us”
April 2019
By: Steven L. Miller
The Illinois Appellate Court recently addressed the issue of whether an employee’s repetitive movement while on the job constituted an “accident” as defined by the Illinois Workers’ Compensation Act.
The petitioner, best described as a “waitress/trainer/manager” was, on a busy day at a restaurant chain, keeping the dining room clean and moving quickly to keep up with the flow of customers. Although she was a manager, she started bussing tables herself and carrying tubs of dirty dishes out of the dining room to help keep things tidy. She testified that she was “busy as all get out,” which Merriam-Webster defines as “to the utmost conceivable degree.” While swiftly wiping down a table, she felt and heard a loud “pop” in her right hand. The petitioner ultimately was off of work for over 2 1/2 years and underwent five surgeries to her hand/thumb. After deciding to forego a recommended thumb amputation, she received permanent restrictions.