Articles Posted in Premises Accidents

wet city sidewalkIn a recent opinion from the Illinois Court of Appeals for the Fourth District, the plaintiff filed an action against the City of Danville (“the City”), alleging that she suffered injuries as a result of a trip and fall accident that occurred on a sidewalk area maintained by the City. According to her complaint, the plaintiff was shopping on one afternoon in 2012. When returning to her parked vehicle after leaving a store in the downtown district, she used a sidewalk to get to her vehicle, which was parked roughly five storefronts away. Then, the plaintiff walked at an angle as she approached the curb where her vehicle was parked. As she did so, she alleges that she stepped into roughly of an inch of water pooling on the sidewalk and to the right side of a lamppost embedded in the sidewalk. As she stepped into the water, the plaintiff claims that her left shoe struck an object that caused her to lose her balance. She then fell forward, striking her chin on the sidewalk.

The plaintiff received nine stitches in her chin to close the wound. Her complaint also alleged that she suffered severe bruising to her left foot, face, and arms. During the fall, two of her teeth were chipped, and she required dental work to address this injury. She also claimed to have suffered a partially dislodged crown that was also treated by a dentist.

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stop sign postIn a recent opinion from the Second District of the Appellate Court of Illinois, the plaintiff appealed a lower court’s ruling granting the defendant summary judgment based on the doctrine of judicial estoppel. According to this widely recognized legal principle, a party is precluded from taking a position in a legal proceeding that is contrary to a position he or she has taken in an earlier legal proceeding.

The facts of the case are as follows. The plaintiff asserted three causes of action against the defendant, alleging that he suffered injuries while shopping at the defendant’s store. Before filing the complaint against the store, the plaintiff and his wife filed a chapter 7 bankruptcy proceeding. In the filing, the plaintiff stated that he had no “[o]ther contingent and unliquidated claims of any nature” and denied having any “other property of any kind not already listed.” Some time thereafter, the plaintiff amended the bankruptcy petition to list the alleged claim against the store as a potential claim of an unliquidated nature. As for an estimated value of the claim, the plaintiff listed $15,000. The plaintiff chose this amount based on section 12-1001(h)(4) of the Code of Civil Procedure, which provides an exemption for a debtor to receive payment not exceeding $15,000 on a claim for personal injury to the debtor.

The bankruptcy court discharged the plaintiff’s petition before the plaintiff initiated the lawsuit against the store. In response, the defendant filed a motion for summary judgment on the plaintiff’s claims, stating that the plaintiff had no standing to sue because the rights to the claim belonged to the bankruptcy trustee. In response, the plaintiff stated in an affidavit that at the time he filed for bankruptcy, he was unsure whether he would pursue legal action against the store. The trial court granted the defendant’s motion for summary judgment based on judicial estoppel.

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Sinkhole in streetIn a recent case decided by the Sixth Division of the Illinois Appellate Court, the plaintiff alleged that he suffered injuries as a result of an improperly maintained pothole in the roadway. In his complaint, the plaintiff alleged that he was driving his vehicle along a roadway maintained by the City of Chicago (“the City”) when a sinkhole opened up in the road. He also claimed that his entire vehicle fell into the sinkhole. During his deposition, the plaintiff testified that only the rear portion of his vehicle sank into the sinkhole. Following the accident, the plaintiff contacted 911 and was transported to a hospital to treat his various injuries. The plaintiff alleged in the complaint that his vehicle was impounded by the City and later destroyed without a proper provision of notice.

The plaintiff asserted two causes of action against the City. First, he claimed that the city was negligent in its maintenance of the roadway and that it failed to repair defects that it knew or should have known posed a risk of harm to the public.

Second, he asserted a claim for Res Ipsa Loquitur. This legal principle states that the occurrence of the accident implies that negligence was responsible, meaning the accident could not have happened but for a negligent act. The Latin phrase means “the thing speaks for itself.” In an appropriately pleaded Res Ipsa Loquitur claim, the plaintiff is able to assert a rebuttable presumption that the defendant acted negligently. There are three elements the plaintiff must prove:  that the accident would not ordinarily occur without negligence, that the device that caused the injury to occur was under the defendant’s control, and that there is no other plausible explanation for the accident.

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yellow construction signIn a recent case, the plaintiff filed an appeal after a trial court issued an order granting summary judgment for the defendants in the plaintiff’s personal injury lawsuit. In his complaint, the plaintiff alleged that in December 2012, the defendant was building a gasoline station on land owned by another defendant. The plaintiff contended that he was walking along a sidewalk near the intersection where construction was taken place when he “suddenly and without warning fell violently into a hole, sustaining serious injuries.”

The complaint also alleged that one of the defendants controlled the construction site and owed him a duty to use reasonable care in maintaining and securing the premises to ensure that pedestrians passing by the area or through the area would be safe. The allegations also contended that the defendants failed to conduct appropriate inspections of the premises to ensure that it was safe, failed to place warning signs to identify the hole, and failed to repair the hole. Finally, the plaintiff alleged that the defendant in charge of the site knew or should have known that pedestrians would be passing through the area and that the hole posed an unreasonable danger to their safety.

In responding to the complaint, the defendants admitted that they owned the site and that they were conducting construction activities, but they argued that the plaintiff’s own negligence contributed to his injuries. The doctrine of contributory negligence allows a jury to consider whether the plaintiff’s negligent conduct contributed to the ultimate harm. In Illinois, if the jury concludes that the plaintiff’s negligence caused 51% or more of his or her injuries, the plaintiff will be barred from recovering any damages from the defendants. Specifically, the defendants argued that the plaintiff was negligent by failing to keep a proper lookout while traversing the sidewalk, by voluntarily walking through the construction site, by failing to appreciate the open and obvious danger that the hole posed, and by trespassing on the construction site. The defendants filed a motion for summary judgment based on these contentions, which the trial court granted.

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In Atchley v. University of Chicago Medical Center, the plaintiff was a delivery driver who was making a delivery of two pallets of beverages at the defendant’s premises. The plaintiff backed his truck up to the dock space, but he soon discovered that the dock lever that would raise the dock to the same level as the truck bed to create a ramp was not working. No other docks with levers were available, so the plaintiff used the air suspension system in his truck to lower the bed as much as possible. A small gap remained, however. The plaintiff then used the motorized pallet jack to unload the pallets, but the jack got stuck in the gap. The plaintiff obtained a steel dolly that he then used to try and free the jack. In the process, he fell and fractured his ankle.truck

The plaintiff and his wife filed a negligence and premises liability claim against the defendant. The defendant raised contributory negligence as a defense to the plaintiffs’ claims in its answer. The defendant then filed a motion for summary judgment, which the lower court granted, based on its conclusion that the danger presented by the gap was open and obvious and that the defendant did not owe the plaintiff a duty of care. It also concluded that the malfunctioning lever was not the proximate cause of the plaintiff’s injuries.

The plaintiff appealed, and the reviewing court ultimately reversed the lower court’s grant of summary judgment for the defendant. First, the appellate court analyzed whether the defendant owed the plaintiff a duty. There are four factors a court will consider in determining whether a party owes another party a duty. The court evaluates the reasonable foreseeability of the resulting injury, the likelihood the injury would occur, the magnitude of the defendant’s burden in preventing the injury from happening, and the consequences that could result from placing a burden on the defendant. For a condition or potential injury to be deemed open and obvious, a reasonable person in the victim’s position with ordinary judgment, perception, and intelligence must be able to recognize both the risk and the condition.

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In Perez v. Heffron, the mother of a boy who drowned in a swimming pool accident appealed an order for the trial court granting summary judgment in the defendant’s favor. The background facts are as follows. In June 2013, the defendant conducted a yard sale at his home in Bartlett. A man visited the sale and brought his son Edgar with him, who was nearly three years old. His sister and their parents were also at the yard sale, along with his niece, who was two.swimming pool

Photographs admitted at trial showed the side, front, and backyard of the defendant’s home on the day the accident occurred. There were sale items located on the ground and lying on tables displayed in the front yard. There was a cement walkway that led to the backyard through a side yard that was narrow. The backyard featured an above-ground swimming pool constructed of durable material and anchored permanently. On the side of the pool that faced the walkway, there were several hoses and filters attached to the pool. There was a deck that provided access to the pool next to the side of the pool, with stairs from the deck leading to a rear patio setting.

To obstruct shoppers from getting to the deck stairs, the defendant placed a clothes rack in front of it. There was a plastic solar cover over the pool. The defendant testified that a child standing on the deck would not be able to see water in the pool through the solar cover.

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grass covered parkwayIn the recent case of Barr v. Frausto, et al., the plaintiff filed a lawsuit against the defendants, including an individual and the City of Joliet, alleging that he suffered injuries when he stepped into a hole located on a grass-covered area and fell. According to his complaint, the plaintiff was on a walk with his wife during a morning in July 2010. He was wearing running shoes and recalls traversing the paved sidewalk. A woman walking her dog was also walking on this sidewalk, approaching from the opposite direction. To make room to pass the woman and her dog, the man stepped onto a grass-covered parkway in front of the home owned by the individual defendant in the lawsuit. When he stepped onto the grassy area, the defendant fell and sustained injuries to his leg.

The plaintiff asserted a claim for negligent property maintenance against the homeowner and the city. In response to the complaint, both defendants filed a motion for summary judgment, which the trial court granted after hearing oral arguments from all of the parties. In regard to the homeowner, the lower court concluded that she did not owe the plaintiff a duty to prevent others from suffering harm on the property owned by the city. The plaintiff appealed the lower court’s ruling in favor of the city.

In support of its motion for summary judgment, the city offered substantial evidence, including photographs, depositions, and the affidavit of the plaintiff’s expert witness. In his deposition, the plaintiff testified to numerous facts regarding his familiarity with the portion of the walkway on which he was injured. For example, the plaintiff had lived in the area for roughly six years, claimed he was familiar with the region, and stated that his wife and he walked or biked the same route roughly once per week. He also testified that he had never seen anyone performing construction or maintenance in the area where the hole was located.

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