Articles Posted in Premises Liability

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In a recent case, a woman was injured after she tripped on a large crack between two sidewalk slabs. The woman sued the city, arguing that the city was liable for failing to maintain the sidewalk in reasonable repair. She claimed that the sidewalk’s hazardous condition had been present for over 30 days before she fell. Indeed, under state law, this was a necessary element that needed to be proved in order for her case to be successful.

Under the state’s law, for a sidewalk defect case, a plaintiff was required to prove that the city knew or should have known about the existence of the defect at least 30 days before the injury. If there was an obvious defect at least 30 days before the injury, the city was presumed to have knowledge of the defect. The city took the woman’s deposition, and during her deposition she stated that she did not know how for how long the condition had been there. The woman submitted three photographs taken about 30 days after the accident, which were the only relevant evidence she had of the condition. The city moved to have the case dismissed. That state’s supreme court found that the evidence of the photograph could not show that the defect existed at least 30 days before the woman’s accident. Thus, the case had to be dismissed.

Summary Judgment Standard

Summary judgment is a decision made by a court based on the available evidence. The judgment considers whether there is sufficient contradictory evidence that amounts to a dispute of an issue of material fact. If there is a sufficient dispute, the case should be sent to trial so that a judge or jury can resolve the factual dispute based on the evidence presented at trial. The purpose of summary judgment is not to make a decision on a factual dispute but instead to decide whether a factual dispute exists.

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In a recent case, a man brought a claim against a church after he was hit by a car while he was crossing a road to go to the church. The man had just parked his car in an overflow parking lot, which was owned and staffed by a local church. He was going to attend an event at the church, and to get to the church he had to cross a busy five-lane road. The man and his wife sued the church, alleging that the church negligently located its overflow parking lot in an area that required churchgoers to cross a busy road and failed to provide churchgoers with assistance in crossing the road.

The church argued that it did not owe a duty to the man because it did not own or control the road he was crossing when he was injured. However, the appellate court found that the location of the church’s overflow parking lot exposed churchgoers to an unreasonable risk of injury. Specifically, it required them to cross a busy road where there was no marked crosswalk or traffic signal in order to cross the road and get to the church.

The court explained that those who own, possess, or control property have a duty to exercise ordinary care in managing the property so that others are not exposed to an unreasonable risk of harm. Even though the church did not control the street where the man was hit, it did control the location of the overflow parking lot, which could have contributed to his injury.

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  1. In a recent case before a state appellate court, a 29-year-old man dove into a pond at a park and broke his neck. Sadly, the man was paralyzed from the neck down as a result. His wife and he filed a claim against the state, alleging negligence and premises liability. At trial, a witness testified that there were “no swimming” signs posted at the recently filled pond, and the state planned to staff the swim area. On the day that the man dove in, there were other people swimming in the pond. The man testified that he thought the water looked deep enough, and he did a shallow dive into the water, but he did not check the depth of the water.

The case went to trial, and the state was not found liable. On appeal, the state’s supreme court agreed with the decision, finding that the state owed no duty to the man. The court found that the state was not responsible for the man’s injuries. First, it found that diving was an open and obvious danger of which he should have been aware. In addition, the court found that the state was protected under the recreational use statute. The state’s recreational use statute limited the liability of landowners when people use the land for recreational purposes without charge. The park would only have been liable if it had willfully or maliciously failed to guard or warn against a dangerous condition or activity—which did not occur in this case. Thus, the man and his family were unable to recover compensation.

Premises Liability in Illinois

Premises liability is based on the idea that owners and occupiers of land have a duty to maintain their premises to some degree in order to help prevent injuries to those who come onto the land. Generally, this duty depends on the type of person who comes onto the land. For example, an owner may have a higher duty to a business guest than to a social guest. In Illinois, however, the Premises Liability Act sets forth many of the laws related to premises liability.

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Following the court’s rules and orders can be as important as the case itself. In a recent case, a claim was dismissed after the man and his attorney failed to attend a scheduled hearing. The man filed a complaint against a defendant after he sustained injuries during a fight at the defendant’s nightclub. However, in the complaint, the man stated the wrong date of the incident, and the incorrect date signified that the three-year statute of limitations had expired. Thus, the defendant moved to dismiss the claim based on the statute of limitations. A motion hearing was scheduled, but the plaintiff failed to appear at the hearing, despite having been properly informed of the hearing according to court rules. As a result, the case was dismissed.

Soon afterward, the plaintiff argued that the dismissal should be vacated because his attorney did not receive notice of the hearing. The court denied the motion to vacate the dismissal, and the plaintiff appealed. That state’s supreme court held that there were no extenuating circumstances that excused the plaintiff’s failure to attend the hearing, and the dismissal was upheld.

Illinois Court Rules and Consequences

When litigating a medical malpractice or personal injury case in Illinois, all parties and attorneys are required to comply with the Illinois Court Rules. Illinois Supreme Court Rule 219 details the consequences for refusing to comply with the rules or a judge’s order.

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Everyone has seen someone slip on an icy sidewalk, and the injuries can be serious. But whose duty is it to maintain the sidewalk, and what does that duty require? In a recent case, a court held that a case had to be retried when a plaintiff failed to explain what the defendant’s duty was in training its employees and how they failed to meet that duty.

In a recent case, a woman slipped and fell on an icy sidewalk at a Marriott hotel while she was staying at the hotel for business. She broke her ankle and sued the hotel for negligently maintaining its sidewalks and failing to properly train the employees who were responsible for deicing the sidewalks. The case proceeded to trial, and the jury found the hotel 98 percent at fault. The hotel appealed the decision, and the state’s supreme court reversed and ordered a new trial. The court held that the trial court should not have allowed a “negligent training theory” without having testimony on the standard of care for training employees on how to deice the sidewalk, or how that had been breached.

The court explained that the jury could not have found that the hotel was negligent in training its employees because the required standard was never explained to the jury. In other words, the plaintiff did not provide any evidence that the hotel had a duty to instruct employees about the time that deicing would remain effective. The court stated that some evidence or testimony to support the position had to be admitted before a jury could return a verdict on that specific claim. The jury could not find that the hotel breached its duty to properly train employees because the standard of care required was never explained. As a result, the court reversed the decision, and the case had to be retried.

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In some cases, the cause of an injury is clear. But in certain cases, especially when people have a long, complicated medical history, the cause of the injury can be a major point of conflict in the case. In a recent case, the defendant argued that it was not liable because a man’s preexisting conditions were the actual cause of his injury. In that case, a man tripped and fell over an unsecured metal plate in front of a grocery cart corral. He suffered injuries on his knee, arm, neck, shoulder, and face. As a result, he had to receive extensive medical care, including two spinal surgeries. The man sued the grocery store for negligence.

The store retained a medical expert. He did not examine the plaintiff before formulating an opinion and preparing his report, but he did review the man’s medical records. Based on the medical records, the defendant’s expert determined that the man had a preexisting spinal condition that existed before the fall, and an MRI he had taken after the fall did not show an “acute injury.” The store then requested that the man undergo a physical examination by the store’s expert.

The trial court denied the request, but the state’s supreme court reversed. Since the man’s physical health and the extent of the injuries he sustained at the store were directly at issue, his condition and its cause were relevant. Thus, the physical examination was directly related to the condition in controversy, and the information could not be obtained through other means. Accordingly, the man was required to submit to a physical examination by the defendant’s expert in order to consider his past physical health as well as his present and future condition and the extent of his damages.

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In a recent case, a woman filed a complaint against CVS for negligence and wantonness. The injury occurred on September 2, 2013 after the woman fell on an unknown substance in a retail store. She filed the claim on August 26, 2015. When she filed the complaint, she filed an “Affidavit of Substantial Hardship,” which indicated that she could not pay the filing fee. A few weeks later, the court granted her hardship petition and waived the fee. However, the court later reversed its earlier order and denied her hardship petition. The woman then paid the filing fee. CVS then moved to dismiss the lawsuit because the two-year statute of limitations had passed before she paid the filing fee or before her hardship petition had been granted.

The state’s supreme court held that under a state statute, a plaintiff has to pay the filing fee or have a hardship petition approved within the statute of limitations. Even though the woman filed the complaint within the statute of limitations, it was insufficient to commence an action to extend the statute of limitations. The two-year statute of limitations had passed before she paid the fee or her petition was approved. Thus, even though she filed within the time period, her complaint was not timely and was dismissed.

Statutes of Limitations in Illinois

For legal proceedings, individuals have to file claims within a specified period of time, called a “statute of limitations.” The reasoning behind these laws is that there is a reasonable period of time that defendants will be subject to claims, so evidence will still be available, and so a person with a valid claim will pursue it with diligence.

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Sometimes, even when an individual has a valid claim, a failure to comply with procedural requirements can destroy one’s case. In a recent case, one man’s claim came to a halt after he failed to provide written notice within the required period.

The plaintiff fell down a set of stairs at City Hall and had to go to the emergency room for injuries he suffered as a result. He alleged that he tripped on an uneven stair tread. Almost six months later, the man spoke to an officer in the finance department at City Hall about his fall and medical expenses. A few weeks later, he provided the city with written notice that he was filing a claim, and he filed a claim against the city a few months later.

The city argued that the plaintiff filed his claim too late, since he filed his written notice after 180 days. Under state law, a written notice of claim against a governmental entity had to be filed within 180 days of the incident. The plaintiff argued that he complied with the statute, since although his notice was filed after 180 days, he had spoken to a city official beforehand, and they were aware of the incident and were not prejudiced as a result.

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Some activities are inherently risky, and often patrons are required to sign a waiver of liability before participating. However, the scope of the waiver may be limited by law, and specific portions could be found invalid by a court if they are challenged. In a recent case, a woman sued a hot air ballooning company after being injured by a balloon. She was waiting in line to ride in the hot air balloon when the balloon’s basket struck and injured her. The woman sued the ballooning company for negligence. Originally, the court found that her claims were barred because she signed a waiver of liability before riding in the hot air balloon. However, on appeal, the state’s supreme court held that the waiver of liability violated public policy and was unenforceable.

The court stated that generally a waiver will be invalid if it contains misrepresentations, if it is too broad, or if it is ambiguous. In this case, the woman signed a waiver to ride the hot air balloon while she was waiting in line. The court found that the waiver the woman signed to go in the balloon was unenforceable because it was overly broad and all-inclusive.

The waiver exempted the company from liability for “all risks of any and every kind” arising from participation in hot air balloon activities with the company. The court noted that it was not clear whether or not the woman would have expected that risks resulting from standing in line would be covered by the waiver, particularly since she did not have to return the waiver prior to getting in line. She also did not have an opportunity to bargain over or negotiate the terms contained in the waiver. For these reasons, the court found that the waiver was unenforceable.

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No one expects to be injured while attending a fair. However, accidents can happen anywhere. And as one woman found out, sometimes the purpose of the event can be the determining factor in whether or not a person can receive compensation for their injuries.

In a recent case, a woman sued a county fair after injuring herself on a grandstand. The woman went to the fair to watch a fireworks show. After she arrived, she began looking for a seat in a grandstand to watch the fireworks. She stepped on a rotten board, fell through the stands, and suffered injuries. The woman sued the fair, alleging that the fair was negligent in maintaining the grandstand and that she was injured as a result. The district court granted summary judgment in favor of the defendant. It found that the fair was protected from liability because it had “recreational use” immunity.

While landowners generally owe guests a duty to maintain their premises, the state had a law that provided an exception for certain landowners who used their land for recreational purposes. The exception did not apply to for-profit businesses that used their land for commercial purposes.

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