PREMISES LIABILITY: DUTY TO PREVENT CRIMINAL ACTS

Noticed an interesting Second Appellate District decision the other day in the Chicago Daily Law Bulletin. The case, Haupt v. Sharkey's Pub was filed after the plaintff suffered serious injuries after a fight at Sharkey's Pub. Plaintiff Haupt and the defendant, a Peter Bell, entered the McHenry, Illinois bar at about the same time. Sharkey, the owner of the bar, testified that he had seen the two men interacting and having a good time. Sharkey then retired to his residence above the bar. At some point Bell and Haupt have a disagreement and there was some sort of confrontation in the bar. Sharkey comes down and throws both guys out - - and makes them both exit through the front door...together. Not suprisingly, combat breaks out as soon as the men exit and Bell does serious damage to Haupt. Haupt sues the bar. Sharkey's brings a motion for Summary Judgment, arguing that it had no duty to protect Haupt from the criminal acts of a third party patron. The Trial Court agrees and grants the motion. Haupt appeals. In a very well-written opinion, the Appellate Court reversed the lower court. The Appellate Court acknowledged that typically, a landowner has no duty to prevent the criminal act of a third party, absent some sort of special relationship. The Court went on to find that the facts presented did show a special relationship - that of business owner and invitee. The Court also noted that a landowner does have a duty to protect guests against the criminal acts of third parties if those acts are foreseeable. The Court then correctly found that Sharkey's duties didn't end the moment Haupt's feet touched down outside the bar. The opinion specifically noted that there is "...no bright line rule" that a bar owner's duties end the moment a patron steps outside. Instead, the Court ruled that Haupt was still an invitee because he was in the process of leaving and, as a result, Sharkey had a duty to provide a safe means of entrance and exit. The opinion frankly noted that location of the injury isn't a dispostive factor. In addition, the Court found that the attack was foreseeable for a couple of reasons. First, Bell was a regular visitor at the bar and had apparently been involved in some other incidents. In addition, both Bell and Haupt were ushered out the front door together, even though they had been punching each other just moments before. Not surprisingly, Bell went after Haupt again, the moment they got outside. Most bartenders could have seen that coming. An excellent, well-reasoned opinion.

NOTICE REQUIREMENTS FOR MINOR SETTLEMENT

Had an interesting experience today in Probate Court. There to get Guardian appointed and have settlement approved for minor in a med mal case. Minor's mom has addiction issues, is estranged from child and hasn't seen him in 10 years. Dad, who never married mom, hasn't been around for 15 years. Grandma, bless her heart, adopted the child and has given him a good life. I simply assumed that in light of these circumstances, that mom and dad weren't entitled to notice of the proceeding. WRONG! I learned today that under the Probate Act[yeah, probably should have read that] unless a parent's rights have been officially terminated, that parent is entitled to notice. Thankfully adoptive mom is very organized and keeps good records. She had a copy of the adoption order from 10 years ago which provides that the parents' rights were terminated. The judge agreed to accept that order, which meant tthat I didn't have to go searching for a 15 year old order in some warehouse over in the Juvenile Court Bulding basement. Dodged a bullet there.

OPEN AND OBVIOUS DECISION

The First Appellate Court recently weighed in on the always fascinating "open and obvious" doctrine recently in Sandoval v. City of Chicago. In the decision, the plaintiff was babysitting for a neighbor's son and took him out to the front of her home. At some point the child was no longer visible and plaintiff became concerned and went to look for him. While walking toward her home, her left foot became lodged in a large crater in the sidewalk that had been there for some time. The plaintiff was aware of it, and admitted she had been past it "millions of times". She also admitted nothing obstructed her vision and nothing in the area distracted her. Defendant moved for SJ, arguing that the defect was "open and obvious". The motion was granted and plaintiff appealed.

The Appellate Court decision first noted that a landowner is not required to protect entrants to the land from open and obvious conditions. There are however exceptions to the general rule. The plaintiff claimed the distraction exception was relevant in her case. With the distraction exception, the defendant does owe a duty of care for an open and obvious condition where plaintiff's attention might be diverted, so that he/she would not discover, or would forget the defect. And the Court went on to note that the distraction exception wouldn't fly. The court noted that the plaintiff was familiar with the sidewalk; was consciously walking in the area and was not distracted by any condition in the area. In addition, the Court pointed out the distraction exception truly only applies when the landowner created the distaction which diverted plaintiff's attention from the open and obvious condition. A line of cases have held that where the plaintiff's attention is diverted by his or her own acts, for which defendant has no responsibility, the exception does not apply. The Court concluded that the defendant didn't create the situation - instead, the events unfolded AFTER plaintiff had brought the child outside. The Appellate Court concluded that plaintiff's injury did not occur because of an improper distraction, but her own inattentiveness.

ICICLES OFF GUTTER UNNATURAL ACCUMULATION?

Spoke to a client today wanting to file suit for 2 wrist fractures she suffered after falling on ice in a condo complex. The ice was from melting icicles hanging off a nearby gutter. Under Illinois law, typically the injured party cannot recover for injuries suffered as a result of a natural accumulation of ice and snow. So...question becomes is the ice formed on a driveway as a result of a melting icicle hanging off a nearby gutter a natural accumulation? My kneejerk reaction is no, but additional research will be necessary.

The plaintiff is in her early 70's which would allow me to get a trial preference under the Illinois Code of Civil Procedure 735 IlCS 5/2-1007.1, which is a plus. Unfortunately, Medicare paid a portion of her bills, which typically means a long delay in getting lien resolution in the event there was some sort of recovery. I'll check on the natural accumulation question and report in subsequent posts.

MORE NEWS ON THE MED MAL CAPS ISSUE

The Pioneer Press recently ran an a great editorial urging Blagojevich to veto the recent Illinois Legislation establishing caps on non-economic damages. The article points out that insurance companies raised their malpractice premiums during a period where the number of claims as well as the size of judgments were essentially stable. The editorial went on to note that other facts, like the volatility of financial markets, is the probable explanation for the increases in premiums.

Just wanted to quote some great language from the editorial:

"...Caps on awards strike at a fundamental American right to justice. In our system, people who have been damaged by negligence are entitled to seek a remedy, to be made "whole" by a jury of their peers. Judges can, and often do, reduce damages they believe to be excessive. Legislative intrusion into the tort system will not only reduce awards to the most severely injured, but will make it more difficult for anyone to seek justice." Well said.

Finally, have to point out some Senatorial hypocrisy I read about courtesy of an email message from the National Democratic Senatorial Campaign Committee. Seems Sen. Rick Santorum(R-Penn) was touting some new "legal reform" legislation this past week. The centerpiece of the plan is to limit non-economic damages to $250,000. What Santorum didn't mention is that his wife filed a med mal case not long ago seeking $500,000. According to the email, at trial she was awarded $350,000. Doubt he would have supported this legislation back when his wife was a victim. What a worm.

MEDICAL TRANSPORT NOT A COMMON CARRIER

In Aisha Browne v. SCR, a recent decision out of the First District Appellate Court, the Court concluded that a medical transport company is NOT a common carrier.

The facts showed that SCR is a medical transport company that provides paratransit services to disabled persons. SCR had previously entered into a contract with the Chicago Transit Authority(CTA)to transport disabled persons who were unable to use the mainline services. Shortly thereafter, a driver for SCR sexually assaulted Ms. Browne, who is disabled. Browne filed suit against SCR and alleged it was a "common carrier". Plaintiff did so in order to expand the duty that SCR owed its passengers. If SCR turnd out to be a common carrier, it would owe its passengers a higher duty of care. If SCR was not considered a common carrier, it would only owe passengers ordinary care and wouldn't be responsible for the intentional acts of its employees. SCR filed a motion for summary judgment arguing it was not a common carrier. The trial court agreed and granted SCR's motion and the plaintiff appealed.

On appeal the Apellate Court explained that a common carrier is one who agrees to carry the general public so long as there is room and no legal excuse for refusal. A private carrier on the other hand, tranports people by special agreement. A private carrier need not pick up everyone who wants a ride. Unfortunately for the plaintiff, SCR did not serve all of the general public but only those people who met certain eligibility guidelines. In addition, SCR, under certain circumstances could turn riders down for a variety of reasons. SCR, by all appearances was a private carrier. Plaintiff, to his credit, also tried to make SCR a common carrier by claiming they stepped into the shoes of the CTA, which typically IS a common carrier. Court didn't buy the argument however, and affirmed the lower court.

This case has direct impact on a case I am currently litigating against a local company that also provides transport to chronically ill patients. My client was injured on a fall on the bus. I have alleged the defendant was a common carrier, but based on this case, I should anticipate a Motion to Dismiss. I'll just hope defense counsel doesn't keep up on the case law.

SIX WEEK SABBATICAL OVER

Due to the press of business, I have not posted in quite some time. Gotten a bit more organized, which in theory, will lead to more regular posts...

CAPS PASS IN ILLINOIS

First, I would be remiss if I didn't comment on the deplorable legislation recently passed by the Illinois Legislature. They have passed legislation that will place caps on the amount of non-economic damages(i.e. pain and suffering) that victims of medical malpractice can recover. The evidence is overwhelming that caps will have virtually no impact on medical malpractice premiums. And the alleged "doctor flight" is pure fiction. There are now almost 30% MORE doctors in Illinois than there were in 1995. A recent study by the AMA failed to turn up any evidence that doctors are fleeing from states that don't offer caps.

Medical malpractice victims typically have grievous, life-altering injuries. Although technically these people still have a constitutional right to a jury trial, caps legislation effectively renders that right meaningless.