- Brad Purcell presented at IICLE’s 5th annual Worker’s Compensation Institute on March 1 on the topic of third-party subrogation strategies at mediation in multiparty litigation.
- Aaron LaRue and R.J. VanSwol were selected as Rising Stars in the fields of Civil Litigation Defense and Insurance Coverage, respectively, by Super Lawyers. This honor is awarded to 2.5% of attorneys based on peer evaluations and independent research.
- Brad Purcell obtained summary judgment on January 18 on behalf of a general contractor in a construction accident case involving a plaintiff who fell from a roof, sustaining a fractured spine requiring surgery and bilateral wrist fractures. The judge granted the motion based upon our contractor’s lack of “retained control” over the work of plaintiff pursuant to Section 414 of the Restatement (Second) of Torts.
- R.J. VanSwol obtained summary judgment for an insurer in DuPage County on the basis that an LLC member was not an insured under the LLC’s auto policy while driving his own vehicle, and that his accident was excluded from coverage under the LLC’s general liability policy.
- Tom Underwood, Mike Sanders, and R.J. VanSwol obtained a Seventh Circuit opinion affirming the dismissal of a federal suit alleging that their clients, who represented the estate in a wrongful-death suit in Illinois state court, were part of a conspiracy to deprive the plaintiff of his rights in the state-court litigation. Klein v. O’Brien, 884 F.3d 754 (7th Cir. 2018).
- Emma Nowacki and King Roy obtained summary judgment on behalf of a shipping company that the plaintiff sought to hold vicariously liable for the acts of a truck driver that caused catastrophic injuries.
- Dustin Karrison and King Roy successfully moved for summary judgment on behalf of a general contractor in Cook County, Illinois, where an injured ironworker sought damages for loss of trade.
- Aaron LaRue and King Roy won summary judgment for a Fortune 500 company that the plaintiff, an union worker, alleged was negligent in coordinating the work of various contractors working at its manufacturing plant where the plaintiff was injured.
- Mike Sanders and King Roy obtained summary judgment on behalf of a general contractor seeking “additional insured” coverage from its subcontractor’s insurer.
In 2016, the Illinois Supreme Court in Carney v. Union Pacific Railroad, 2016 IL 118984, decided a construction negligence case in favor of the defendant owner and provided clear parameters to Section 414 of the Restatement (Second) of Torts. Trial and appellate courts are following suit by granting and affirming summary judgment under the new Carney framework. LePretre v. Lend Lease (US) Construction, Inc., 2017 IL App (1st) 162320; Snow v. Power Construction Co., 2017 IL App (1st) 151226; Meza v. F.H. Paschen, 2017 IL App (1st) 161569-U. Just in the past few weeks, our office obtained summary judgment in three serious construction-site accident cases. We have also seen trial judges issue modified – and more favorable – jury instructions in these types of cases. Below is a quick recap of how Carney redefined the law and leveled the playing field for general contractors and owners.
The owner, a railroad company, hired a demolition subcontractor to remove several bridges. The subcontractor in turn hired the plaintiff to assist in the work. During the removal process, an unsecured beam fell to the ground while the plaintiff was standing on a steel plate covered by gravel. The fallen beam caused the steel plate to move up, which caused the plaintiff to slide forward under the beam. The plaintiff’s legs were severed below his knees and he brought suit against the railroad company under Section 414. This section provides:
414 Negligence in Exercising Control Retained by Employer
One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
Illinois courts interpreted this section as giving rise to two theories of liability: (1) vicarious liability when the general contractor’s control over the “operative detail” is so extensive that the independent contractor is viewed as the agent of the general contractor; and (2) direct liability when the level of control is sufficient to give rise to a duty to exercise reasonable care for the safety of the independent contractor. This interpretation of Section 414 gave plaintiffs multiple opportunities to develop a cause of action against a general contractor. Making matters worse, there was no consensus definition of “control.”
Carney cleared up the confusion by first eliminating vicarious liability under Section 414 and then defining the limits of “control” under direct liability.
In order to establish direct liability, plaintiffs now must show at least some degree of control over the manner in which the independent contractor performed the work. A “general right” to supervise is no longer sufficient to create a question of fact. Previously, courts would often deny summary judgment motions because a general contractor merely retained the right to stop work or check progress. These general rights are no longer relevant.
A critical factor in analyzing a general’s control is the contract language. Many courts would use the contract between the general and the owner as evidence of control. Carney clarified that the proper contract to examine is the one between the parties – the general and independent subcontractor – and not the prime contract with the owner. The court also explained that safety provisions in the contract fall under the category of general rights and do not trigger the duty under Section 414. By removing many of these arguments from consideration, Carney significantly curbed plaintiffs’ ability to use the contract language against the general to impose direct liability.
Whether by supervision or contract, plaintiffs must establish that the control was over the specific manner, means and methods of the work. If plaintiffs can clear this hurdle, then they must show the general had notice (knew or should have known) of the unsafe condition or work practice. There is no liability under Section 414 without notice.
It is worth reexamining the construction negligence claims in your caseload to see whether the plaintiffs have the specific facts for control and notice required to defeat summary judgment under the Carney standard. At trial, a modified jury instruction should be offered in place of current pattern instruction, which no longer accurately reflects the law. I.P.I. No. 55.02 (imposing a duty when a defendant “who retained some control over the safety of the work has a duty to exercise that control with ordinary care.”).
Many freight brokers will remember Sperl v. C.H. Robinson Worldwide, Inc., 408 Ill.App.3d 1051 (3d Dist. 2011). That was the Illinois appellate ruling affirming an agency relationship between a truck driver that caused a fatal collision and the broker that assigned the load. The court found that the evidence established that the broker had controlled the manner of the driver’s work in delivering loads it brokered. This case led to other decisions finding brokers vicariously liable for the conduct of the motor carrier’s driver.
One piece of the Sperl case is now pending before the Illinois Supreme Court. After paying the plaintiff the jury award of $23,225,000.00, the broker sought contribution from the motor carrier. The court granted the broker contribution against the motor carrier for 50% of the jury’s total award. The motor carrier appealed, contending that the broker was not entitled to contribution from the motor carrier because neither party was at fault. Rather, each party was a “blameless” principal that was vicariously liable for the fault of the same agent. The Third District appellate court reversed the contribution award, finding that one vicariously liable principal cannot seek contribution from another vicariously liable principal because there was no basis to compare their respective fault. The Supreme Court will settle this debate very soon.
You may have recently seen many of your online friends posting pictures that matched them with their supposed lookalikes in paintings, but this feature was not available to Illinoisans. This blackout was the first encounter many people had with the Illinois Biometric Information Privacy Act, 740 ILCS 14/1 et seq. (“BIPA”). Illinois was the first state to pass such a law (in 2008), but the BIPA has only recently surged as a source of potential litigation, similar to past waves of blast-fax and patent-troll cases. As other states start to pass similar laws, businesses must increasingly be aware of what the BIPA requires and what penalties could result from violations.
As stated in Section 5, the BIPA was passed to regulate the use of biometric identifiers and biometric information – e.g., retina scans, fingerprints and handprints, voiceprints, and face scans – by private entities in functions like security screenings and financial transactions. The Illinois legislature expressed concern that such information was susceptible to the same risks of theft and misuse as other personal identifiers like social security or credit card numbers. But unlike those numbers, biometric identifiers are physically and permanently linked to the holder: no one can simply assign new identifiers if they are compromised.
Section 15 of the BIPA requires a private entity in possession of biometric information to develop a written policy, made available to the public, establishing a retention schedule and guidelines for permanently destroying such information within a certain time. The entity must inform the individual that such information is being collected and stored, state the purpose for its collection, and receive a written release from the individual. No private entity may sell, lease, trade, or profit from such information. The information may not be disclosed to others unless the subject has consented, the disclosure completes a financial transaction the subject has authorized, or the disclosure is required by law or by a warrant or subpoena. The information must be stored with a reasonable degree of care. Section 20 provides a private right of action for any “person aggrieved by a violation of this Act.”
Few judicial opinions to date have concerned the BIPA, but they have shown the wide variety of contexts in which such claims can arise. Several suits have alleged that websites like Shutterfly, Facebook, and Google have violated the BIPA with their facial-recognition technology. One suit involved a video game that creates a digital avatar from a scan of the player’s face. Others have involved alleged fingerprinting for “smart” rental lockers, a season pass at an amusement park, and an employer’s timeclock system.
Some BIPA cases may fail on threshold issues of standing or jurisdiction. Several opinions from federal courts, including the Northern District of Illinois, have held that a purely procedural violation of the BIPA does not present a real risk of harm to a concrete interest and therefore does not confer federal standing. One of those federal courts and the Second District of the Illinois Appellate Court have also held that a purely technical violation of the BIPA does not render a party “aggrieved” or confer statutory standing under Section 20 of the BIPA.
While entities may have defenses based on such procedural arguments or based on strict compliance with the requirements of Section 15, the risks of violations are substantial: under Section 20, defendants may be liable for liquidated damages of $1,000 for each negligent violation, $5,000 for each intentional or reckless violation, and “reasonable attorneys’ fees and costs.” In a class action brought by employees or consumers, liabilities could run into the millions of dollars. The stakes are high both for the plaintiffs whose information was collected and for the defendants who collected it. The Illinois legislature is currently considering bills that would limit the scope of the BIPA, particularly as it relates to employers and to entities that store a person’s data for less than 24 hours.
The Illinois Supreme Court in Ready v. United/Goedecke Services, Inc., 232 Ill.2d 369 (2008), interpreted Section 2-1117 of the Illinois Code of Civil Procedure to find that settling defendants are not included on the verdict form for determining joint and several liability. This created an incentive for plaintiffs to settle out highly culpable defendants with minimal insurance in “good faith” and target the deeper-pocketed defendants, who were now far more likely to be found jointly liable for a jury award. Ten years later, the court approved of the inequity created by Ready by setting a very high bar to challenge a codefendant’s settlement.
In Antonicelli v. Rodriguez, 2018 IL 121943, the plaintiff was a passenger in a car traveling eastbound with a semi-truck following in the same direction. At this time, Daniel Rodriguez was traveling in the opposite direction while under the influence of cocaine. Rodriguez made an improper U-turn through the median and collided with the plaintiff’s car. The driver of the semi-truck was unable to stop in time and slammed into the plaintiff’s car, resulting in severe permanent injuries to the plaintiff. Rodriguez pled guilty and was imprisoned.
The plaintiff brought a negligence action against Rodriguez and the trucking entities. The plaintiff entered into a settlement with Rodriguez for $20,000, the limit of his insurance policy, and moved for a finding that the settlement was made in good faith under the Contribution Act. A good-faith settlement would have discharged all liability as to Rodriguez. The trucking defendants then filed a contribution claim against Rodriguez alleging that his conduct was intentional rather than negligent because there can be no good-faith settlement for intentional conduct. The trial court found the nominal settlement to be in good faith and dismissed all claims against Rodriguez.
The Supreme Court quickly dismissed the argument that Rodriguez’s conduct was intentional because there was no authority to support the conclusion that “an intoxicated driver constitutes a de facto ‘intentional tort.’” The court then moved on to whether the settlement was in good faith. The burden is on the challenging party to show that the settling parties engaged in wrongful conduct, collusion, or fraud. The trucking defendants did not present evidence to support any such conduct.
The court found that the trucking defendants’ rights had been properly considered because the Contribution Act ensures “equitable apportionment” of damages by providing a setoff to the non-settling defendants for the amount of any settlement. In this case, the trucking defendants’ equitable apportionment” was ensured by a setoff for $20,000.
The Supreme Court’s holding is not surprising because it is consistent with Ready and subsequent appellate case law finding all manner of settlements to constitute good faith. However, the Antonicelli opinion is noteworthy for its strong concurring and dissenting opinions. “Ready I was wrongly decided,” Justice Garman stated, and it should have held that settling defendants were to be included on the verdict form for a “truthful apportionment of relative fault.” She continued, “It is of no surprise that non-settling defendants now resort to challenging the finding of good faith entered in favor of Rodriguez as a last-ditch effort to ensure that the apportionment of fault is equitable.”
Justice Karmeier highlighted the unfairness of Ready in a 13-page dissent. He mentioned that “Ready I is clearly the cause of inequity here” and cited concerns of non-settling defendants being “left holding the bag.” He correctly observed that there can be no good faith when the “practical effect is to shift a disproportionally large and inequitable portion of the settling defendant’s liability to the shoulders of another.”
With these types of fact patterns, the reality is that “the tragic facts could very well persuade the jury to award a large verdict [and the settling defendant’s] drop-in-the-bucket settlement takes her off the stage at the jury trial.” The plaintiff “has every incentive to get that [settling] defendant out of the way and proceed against a defendant who may bear considerably less fault but who has deeper pockets.” In light of Ready, it is in the plaintiff’s interest “to be one-on-one with the non-settling defendants at trial.”
The dissent also raised an important point that is often overlooked: settling defendants may be included on the verdict form to determine the plaintiff’s contributory negligence – not joint and several liability. “It seems self-evident that the fairest and most accurate assessment of proportionate fault can only be achieved by including everyone involved in the accident on the verdict form.… I would note that including a defendant who has settled on the verdict form would not impair the rights of the settling defendant under the Contribution Act, but it would ensure that non-settling defendants’ rights are preserved ….”
Near the conclusion, Justice Karmeier’s dissent asks, “What basis is there – be it fairness or reason – to argue that a fairer, more equitable apportionment of fault can be accomplished with the principal actor in the accident absent from the verdict form by which a jury will determine percentages of liability?” Many of us have asked some form of this question since Ready was decided a decade earlier.
Tom Underwood and Mike Sanders tried a two-week legal-malpractice case in the Circuit Court of Cook County. They were able to knock out $32 million of the plaintiff’s claims by way of motions in limine and a directed verdict. The jury then returned a compromise verdict on the remaining damages that was less than the plaintiff’s demand, and the case settled before the defendant’s post-trial motion was filed.
Kingshuk Roy and Aaron LaRue were highlighted in the DRI’s The Voice for obtaining a defense verdict in Chicago on behalf of a steel erection subcontractor in a construction negligence case in Ronald Campagna v. Lorig Construction.
The case involved a 53-year-old union ironworker who was injured carrying rebar on an elevated bridge deck. The plaintiff tripped on a spacer bar that had been placed on the deck to support the rebar for the concrete pour. This caused him to tear his ACL, MCL, and PCL in the left knee and subsequently develop Complex Regional Pain Syndrome that required permanent pain management. He also required permanent psychological treatment for adjustment disorder with depressed mood and anxiety. He claimed nearly $4 million in special damages for lost wages and medical expenses. Counsel asked the jury for an award over $16 million. The defense argued that the plaintiff’s inattentiveness caused his injuries and that he did not suffer from CRPS or adjustment disorder. The jury returned a verdict form in favor of the defense.
Attorneys Aaron LaRue and Emma Nowacki obtained summary judgment in favor of a county in a lawsuit that involved a motor vehicle accident in a construction zone. The codefendant driver, who settled out for his policy limits, claimed he was “confused” while traveling southbound in the designated northbound lane, leading to a head-on collision with the plaintiffs’ northbound vehicle. The plaintiffs sued the county and construction contractors for negligently routing traffic through the construction zone. The evidence showed that the county owned the road, designed the construction zone configuration, and was present every day during the construction to “supervise” the work. The testimony also showed that the traffic configuration was designed in accordance with all applicable requirements and standards, and set up and maintained in accordance with all applicable plans and specifications. P&W moved for summary judgment based on the Tort Immunity Act, arguing that section 3-104 provided immunity for alleged failures to erect traffic warning signs and that section 3-108 provided immunity for the county’s supervisory role on the project. After oral argument, the Cook County court granted P&W’s motion based on tort immunity, as well as the defendants’ joint motion arguing under Hunt v. Blasius that the project had complied with all applicable standards and specifications.
Brad Purcell and Emma Nowacki obtained a dismissal in a negligence and products liability suit based on the statute of limitations. The plaintiff filed a complaint against multiple defendants after the decedent was run over by a Jeep Grand Cherokee that suddenly reversed and ran over him after he had placed the vehicle in park. Plaintiff alleged that the transmission and/or gear shift were defective. P&W’s client was a car mechanic that had replaced the transmission of the Jeep 7 years before the fatal accident. After the plaintiff learned in discovery that the transmission had been replaced, the plaintiff brought suit against P&W’s client 8 months after the statute of limitations had expired. The plaintiff maintained that the two-year statute of limitations for his suit against the mechanic related back to the timely complaint. P&W argued that the relation-back doctrine was inapplicable because plaintiff made no “mistake,” and P&W’s client had no knowledge of the lawsuit within the statute of limitations. The Cook County court agreed and dismissed the untimely complaint against P&W’s client with prejudice.
R.J. VanSwol obtained the affirmance of summary judgment on the issue of whether a property owner could deselect its own policy in an underlying slip-and-fall case and seek coverage under a policy issued to the contractor that had agreed to clear snow and ice from the property. The contractor’s insurer argued that the claims against the property owner did not come within the scope of coverage, but the trial court found that the insurer had to defend under its additional-insured endorsement, and the First District of the Illinois Appellate Court affirmed. P&W therefore successfully shifted the risk away from the property owner’s policy. Pekin Ins. Co. v. AP POB Bannockburn, LLC, 2017 IL App (1st) 163159-U.