Reform: An Up to the Minute Primer

June 2015

By Francis M. Brady

There has been a flurry of activity regarding Illinois Workers' Compensation Practice in this spring's legislative session. The Firm has been monitoring developments in both chambers. To date, action in the Senate has centered on reforms sought by the business community and supported by the Governor. The Senate measure denies benefits except where the work accident is more than 50% responsible for the employee's injury compared to other causes; limits the coverage afforded traveling employees; establishes credits for 8(d)(2) awards; and makes further cuts in the Fee Schedule.

Consideration in the House has followed a different path. There is legislation now pending focusing on the role of insurance carriers relative to rate setting and premium reduction. Other House measures, like those in the Senate, address causation and traveling employees though, unlike the Senate, they simply codify language from Appellate Court decisions which represents the current practice. House legislation does, however, create a right to contribution, though whether employers would gain any practical benefit from that right is questionable.

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Appellate Court Holds Owners Not Responsible for Trip/Fall in Roadway

June 2015

By Molly P. Connors

In a recent case, Caracci v. Patel, 2015 IL App (1st) 133897, the First District Appellate Court upheld summary judgment in favor of the defendant strip mall owners on the plaintiff's premises liability claims. The plaintiff alleged she was injured when she tripped and fell in a pothole while walking to a store in the Grand Plaza strip mall in Franklin, Illinois. The plaintiff parked her car in an area adjacent to the strip mall, and she was in the process of crossing a common roadway when her accident occurred. The land on which she fell was owned by AVG Partners I, LLC ("AVG") and leased to Kmart Corporation ("Kmart"). The northern portion of the roadway was owned by SuperValu, Inc. ("SuperValu"). Defendants Nathu Patel, Ishwar Dhimar, and Amit Patel owned the strip mall.

The defendants had a contract with SuperValu. Pursuant to the contract, the defendants paid 22.5 percent of the maintenance costs for SuperValu's parking lot, and SuperValu allowed strip mall customers to park in the lot. The defendants did not have a contract with AVG, but AVG granted an easement on its part of the roadway for the general public and utilities. The easement was not granted specifically to the defendants. The lease between AVG and Kmart required AVG to maintain all driveways, sidewalks, streets, and parking areas in a safe condition.

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Brady, Connolly & Masuda, P.C. Wins for General Contractor Before Appellate Court

June 2015

On March 20, 2015, the Appellate Court of Illinois, First District, affirmed summary judgment in favor of general contractor, F.H. Paschen, S.N. Nielsen, Inc., (Paschen) in Kevin E. O'Gorman v. F.H. Paschen, S.N. Nielsen, Inc., et al. 2015 IL App (1st) 133472. Paschen was represented by attorney W. Scott Trench in the trial court and on appeal. Paschen contracted with the City of Chicago to act as a general contractor for the conversion of a former police station into a custodial youth center. The plaintiff, a general foreman of general trades for the City of Chicago, accessed the roof of the building through a roof hatch to inspect a heating and air conditioning unit. The plaintiff stepped on a piece of wood with an embedded nail as he exited the roof hatch. While attempting to remove the piece of wood from his foot, the plaintiff fell through the roof hatch 13 to 15 feet to the floor below and suffered a herniated cervical disc. The plaintiff alleged the wood was construction debris from Paschen's masonry subcontractor, Old Veteran, which was performing work adjacent to the roof hatch. The plaintiff argued Paschen, in its contract with the City of Chicago, was responsible for job site safety and housekeeping. The trial court granted summary judgment in favor of Paschen, holding that Paschen delegated the responsibility for safety and housekeeping to its subcontractor, Old Veteran, based on the language in Paschen's subcontract and, therefore, owed no duty to the plaintiff pursuant to Restatement (Second) of Torts, §414.

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Alleged Joint Venturer Subject to Vicarious Liability After Waiving Exclusive Remedy Defense on Appeal

May 2015

In Hiatt v. Western Plastics, et al., 2014 IL App(2d) 140178, the plaintiff was employed by Western Plastics, Inc. (Western) and sustained injuries when his arms were caught in a machine used to produce plastic sheets. The plaintiff filed suit against Illinois Tool Works, Inc., (ITW), alleging that ITW and Western were engaged in a joint venture and, therefore, ITW was vicariously liable under agency principles for the negligent acts or omissions of Western. ITW and Western entered into a manufacturing agreement, under which Western agreed to manufacture plastic sheets for ITW and to work with Western to achieve improvements in the manufacturing process and in product designs. The manufacturing agreement also included a specific provision stating that Western was an independent contractor and neither Western nor ITW were "the agent of the other for any purpose whatsoever."

The trial court granted summary judgment in favor of ITW finding no joint venture relationship existed between ITW and Western. On appeal, the Illinois Appellate Court for the Second District reversed, finding a question of fact existed as to the existence of a joint venture relationship between the two companies based on ITW's contributions to the manufacturing process, exercise of control over product specifications, and agreement to share any financial gains with Western resulting from cost improvements.

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Seventh Circuit Finds No Retaliation or Discrimination

May 2015

By Andrew R. Makauskas

Sklyarsky v. Harvard Maintenance, Inc., 14-2768 (7th Cir. 2015), involved claims brought by a custodian, Yaroslav S. Sklyarsky, a custodian at a Chicago office building. In April of 2010, he began working for Harvard Maintenance when that company was awarded the building's contract for janitorial services. Sklyarsky was disciplined five times between August 2010 and his firing in January 2013. Discipline was administered for the following alleged activities:

• Insubordination after being assigned extra work on a day the staff was short-handed;
• Insubordination when he searched for a seniority list in Harvard's office despite being told to stay out;
• Poor performance for not adequately cleaning desks in the offices;
• A one-day suspension for inadequate cleaning and for being "loud and disrespectful;"
• Discussing personal matters on the job.

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Civil Jury Trials: 6 or 12 Members

May 2015

Public Act 98-1132 amended 735 ILCS 5/2-1105(b), which sets the number of members on civil juries. The amended statute holds civil trials will now be tried by a 6 person jury. This adversely affects the defense bar in Illinois. Studies show 6 person juries are more favorable to the plaintiff. This also explains why the plaintiff's bar supported the amendment.

A recent article written by Dennis Dohm, a retired Cook County Circuit Court judge, shows why amended Section 2-1105(b) is unconstitutional. When the statute takes effect on June 1, 2015, the defense bar should object to its implementation.

Civil juries have been made up of 12 members since Article II's Bill of Rights of the 1870 Illinois Constitution was written. In addition, Section 13 of Article I in the 1970 Illinois Constitution titled "Trial by Jury" states "[t]he right of trial by jury as heretofore enjoyed shall remain inviolate." Section 13 of the 1970 Illinois Constitution holds the right to a 12 person jury shall never be violated.

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