RECENT DEVELOPMENTS IN PREMISES LIABILITY

Transcription

1 RECENT DEVELOPMENTS IN PREMISES LIABILITY Presented and Prepared by: Andrew J. Roth Chicago, Illinois Prepared with the Assistance of: Stephanie A. Garces Chicago, Illinois Heyl, Royster, Voelker & Allen PEORIA CHICAGO EDWARDSVILLE ROCKFORD SPRINGFIELD URBANA 2015 Heyl, Royster, Voelker & Allen K-1

2 RECENT DEVELOPMENT IN PREMISES LIABILITY I. OVERVIEW OF PREMISES LIABILITY... K-3 A. Introduction... K-3 B. The Rule Governing Foreseeability... K-3 C. The Exception Open and Obvious Doctrine... K-4 D. Two Exceptions to the Open and Obvious Doctrine... K-4 II. UPDATES IN ILLINOIS PREMISES LIABILITY CASE LAW... K-5 A. Illinois Supreme Court Bruns Decision... K-5 B. Illinois Appellate Court Decisions Post-Bruns... K-7 1. Whittinghill v. Starbucks Corp.... K-7 2. Lucasey v. Platner... K-7 3. delatorre v. Lake Effect Dev. III, LLC... K-9 4. Escobar v. Chicago Transit Auth.... K-9 C. Illinois Federal Court Decisions Post-Bruns... K Rich v. Quad... K-10 III. ILLINOIS PREMISES LIABILITY ACT LEGISLATIVE UPDATE... K-11 A. Illinois House Bill K-11 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. K-2

3 RECENT DEVELOPMENTS IN PREMISES LIABILITY I. OVERVIEW OF PREMISES LIABILITY A. Introduction A major question and topic in many premises liability cases is whether the premises owner owes a legal duty to entrants. There have been significant developments on this subject within the past year including an Illinois Supreme Court decision as well as proposed legislation. As a general rule, a premises owner owes a duty of reasonable care under the circumstances to lawful entrants upon its land. See 740 ILCS 130/2. However, the question of whether a duty exists in a specific case has traditionally been a question of law for the court. To determine if a duty exists, the court must assess whether defendant and plaintiff stood in such a relationship to one another that the law imposed upon defendant an obligation of reasonable conduct for the benefit of plaintiff. Ward v. K-Mart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d 223 (1990). Under the traditional duty analysis, the court considers the following factors when determining whether such a duty exists: 1. The reasonable foreseeability of injury; 2. The reasonable likelihood of injury; 3. The magnitude of the burden that guarding against injury places on the defendant; and 4. The consequences of placing that burden on defendant. LaFever v. Kemlite Co., 185 Ill. 2d 380, , 706 N.E.2d 441, 446 (1998). B. The Rule Governing Foreseeability The first prong of the duty analysis, foreseeability, is often the most critical. Illinois follows the Restatement of Torts in premises liability cases, which states in relevant part as follows: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, if, but only if, he: (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against danger. K-3

4 See Restatement (Second) of Torts 343 (1965). C. The Exception Open and Obvious Doctrine Even if a court determines that the injury was reasonably foreseeable, and thus, a general duty of reasonable care would normally apply, there is a common law defense available to premises defendants known as the open and obvious doctrine. This common law defense holds that even if there is a foreseeable risk of harm to a lawful entrant on the premises, no duty will apply to the premises owner if the allegedly dangerous condition was open and obvious. Illinois again has adopted the rule as stated in the Restatement of Torts, which provides that a possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. See Bruns v. City of Centralia, 2014 IL , 16, 21 N.E.3d 684 (2014) citing Restatement (Second) of Torts 343A, cmt. b, at 219 (1965). D. Two Exceptions to the Open and Obvious Doctrine The focus of most of the premises liability case law in recent years has involved two recognized exceptions to the open and obvious defense, or, put another way, the exceptions to the exception. Simply stated, even when a court finds the condition on the land causing injury was open and obvious, the court may still find that a duty of reasonable care exists if one of the two exceptions exists. Again, Illinois follows the Restatement of Torts, with the exceptions to the open and obvious doctrine being known as the distraction exception and the deliberate encounter exception. The distraction exception applies when the possessor of land has reason to expect that the invitee s attention may be distracted, so that he or she will not discover what is obvious, will forget what he or she has discovered, or will fail to protect himself or herself against it. See Restatement (Second) Torts 343A, cmt. f (1965). The deliberate encounter exception applies when a possessor of land has reason to anticipate or expect that the invitee will proceed to encounter an open and obvious danger because to a reasonable person in their position the advantages of doing so would outweigh the apparent risk. Id. Much of the appellate premises liability case law in Illinois over the past several decades has focused on the interplay between the open and obvious defense and whether one of the two exceptions is applicable. The general case law trend leading up to 2014 was that the two exceptions to the open and obvious doctrine were being interpreted broadly, with the result being that trial courts were reluctant to find the open and obvious defense applicable. The practical implication being that it was becoming more and more difficult for a premises defendant to obtain a dismissal or summary judgment on the duty issue. K-4

5 An example of a broad reading of one of the exceptions was the Ward case, where a shopper at a retail store walked out of the store carrying a large mirror he had purchased at the store and walked into a concrete pole. Ward v. K-Mart Corp., 136 Ill. 2d 132, 554 N.E.2d 223 (1990). The Ward court found that while the concrete pole was open and obvious, the distraction exception applied because the retail store defendant could reasonably foresee that one of its customers could become distracted while carrying their purchase out of the store. See Ward, 136 Ill. 2d at Plaintiff s attorneys frequently cite to the Ward case in response to premises defendants motions for summary judgment. With such a broad interpretation of the distraction exception, trial courts were increasingly reluctant to grant summary judgment under the open and obvious rule, and there was a danger of the distraction exception swallowing the open and obvious rule entirely. It was against this backdrop that the 2014 Illinois Supreme Court case of Bruns was decided. II. UPDATES IN ILLINOIS PREMISES LIABILITY CASE LAW A. Illinois Supreme Court Bruns Decision In 2014, the Illinois Supreme Court decided the Bruns case, which upheld summary judgment for a premises owner under the open and obvious rule and rejected plaintiff s attempt at broad interpretations of the distraction exception. Bruns v. City of Centralia, 2014 IL In Bruns, plaintiff was walking to a clinic and sustained injuries after tripping and falling on an uneven sidewalk owned and controlled by the defendant, City of Centralia (City). Plaintiff brought a premises liability negligence action against the City. Id. 6. Plaintiff argued that the City owed her a duty of reasonable care, was negligent in failing to inspect and repair the sidewalk, and hence allowed the sidewalk to stay in a dangerous condition causing her injury. Id. Conversely, the City argued that it owed no duty to plaintiff since the defective condition on the sidewalk was open and obvious. Id. The parties stipulated to the basic facts, including that there was a large open and obvious defect in the sidewalk including evidence that plaintiff had seen it several times before. Id. 18. Thus, the major issue was whether one of the exceptions applied to the open and obvious rule. Id. At the trial court level, the court sided with the City and granted summary judgment under the open and obvious doctrine, finding that the City did not owe a duty to plaintiff. Id. 8. The Appellate Court, Fifth District, reversed and remanded. The appellate court held that the distraction exception applied, and thus, it was error for the trial court to grant summary judgment under the open and obvious rule. The appellate court reasoned that the key issue was whether it was foreseeable for an elderly person such as plaintiff to be distracted by the building sign of the clinic she was intending to go into, and forget or become distracted from the open and obvious danger of the sidewalk defect. Id. 19. The appellate court held that it was reasonably foreseeable, that the City owed a duty of reasonable care, and that the case be remanded to the trial court for further proceedings on whether this duty was breached. K-5

6 The Illinois Supreme Court allowed leave for the City to appeal, and considered amicus curie briefs including from the Illinois Association of Defense Trial Counsel. The Supreme Court reversed the appellate court and affirmed the trial court s granting of summary judgment to the City. The Court read the distraction exception much more narrowly than the appellate court did, and reasoned as follows: Id. 22. [T]he only distraction identified by plaintiff is that her attention was fixed on the door and steps of the clinic. Although the record supports that plaintiff was, in fact, looking in that direction, rather than at the defective sidewalk, we conclude that the mere fact of looking elsewhere does not constitute a distraction. The Court further explained that the concept of foreseeability is not boundless. Id. 34. The fact that something might conceivably occur does not make it foreseeable as a matter of law. Id. Rather, something is foreseeable only if it is objectively reasonable to expect. Id. The Court further reasoned that the issue central to the distraction exception is not whether plaintiff was looking elsewhere, but why she was looking elsewhere. Id. 30. The Court explained: A plaintiff should not be allowed to recover for self-created distractions that a defendant could never reasonably foresee. In order for the distraction to be foreseeable to the defendant so that the defendant can take reasonable steps to prevent injuries to invitees, the distraction should not be solely within the plaintiff's own creation. The law cannot require a possessor of land to anticipate and protect against a situation that will only occur in the distracted mind of his invitee. Id. 31, quoting Whittleman v. Olin Corp., 358 Ill. App. 3d 813, , 832 N.E.2d 932, 936, (5th Dist. 2005). The Court concluded that if simply looking elsewhere would constitute a legal distraction, then the open and obvious rule would be upended and the distraction exception would swallow the rule. Bruns, 2014 IL , 34. The Supreme Court thus held that the open and obvious rule applied, and that the broad reading of the distraction exception of the appellate court was error. The Supreme Court reversed the decision of the appellate court and affirmed the trial court s grant of summary judgment to the City. Id. 37. In doing so, the Court carefully distinguished its prior precedents, including the Ward case cited supra. The Court held that in Ward, the distraction exception applied to the unique facts of that case because the concrete post could not be seen from the interior of the store, the posts were located immediately outside the doors, there was no other means of egress for plaintiff, and that the specific product plaintiff purchased (a large mirror) obscured the plaintiff s view of the post. See Id. 24. Thus, a fair reading of Bruns is that the open and obvious rule is still a viable defense in Illinois to premises liability claims and that the exceptions should not be read so broadly as to swallow K-6

7 the rule. The question remains post-bruns how in practice the trial courts and appellate courts will apply this precedent. There have been several appellate court cases decided post-bruns discussed in the next section. B. Illinois Appellate Court Decisions Post-Bruns 1. Whittinghill v. Starbucks Corp. In the recent unpublished Second District case of Whittinghill, plaintiff injured himself when he stepped on a pile of sticks and mulch on a sidewalk after exiting a Starbucks while talking on his cell phone. Whittinghill v. Starbucks Corp., 2015 IL App (2d) U, 4. Plaintiff sued Starbucks Corporation for negligence and sought damages for the injuries sustained. Id. 5. Starbucks moved for summary judgment arguing that it owed no duty to plaintiff under the open and obvious doctrine. Id. 16. Starbucks further contended that its lease agreement did not create a duty to maintain the sidewalk, the presence of mulch did not form a hazardous condition, that no evidence existed showing Starbucks had actual or constructive knowledge of any debris on the sidewalk, and that the debris was open and obvious. Id. The trial court granted Starbucks s motion for summary judgment finding that no duty attached under the open and obvious rule. Id. 8. On appeal, plaintiff argued that a possessor of land can be liable if the possessor should have anticipated the harm, even if the condition on the land qualifies as being obvious to the invitee. Id. 16. Plaintiff argued that the act of using his cell phone was a common and foreseeable distraction, and thus, the open and obvious defense should not be applicable to this case. Id. The court, citing to Bruns, rejected plaintiff s argument and held that the act of talking on a cell phone was nothing more than a self-created distraction. Id. 17. The court thus found that the allegedly dangerous condition was open and obvious, no exception applied, and affirmed summary judgment for the defendant. Id Lucasey v. Platner In the recent Fourth District case of Lucasey, plaintiff, a real estate appraiser, brought a negligence action against defendant homeowners after being injured when he fell from a snow covered retaining wall in the homeowners backyard during an appraisal. Lucasey v. Plattner, 2015 IL App (4th) Plaintiff alleged that the homeowners breached their duty of ordinary care by: (1) failing to provide a guard or other barrier along the top of the retaining wall as required under the International Building Code; (2) failing to warn of the drop-off at the top of the retaining wall which was allegedly concealed by the snow; and (3) allowing the retaining wall to remain without a guard or other barrier when it was reasonably foreseeable that plaintiff would either be distracted by his appraisal work and/or be required to encounter the dangerous condition in order to complete his appraisal work. Lucasey, 2015 IL App (4th) , 8. The homeowners moved for summary judgment and countered that the risk posed by the retaining wall was open and obvious and that neither the distraction nor the deliberate-encounter exception applied. Id. 9. K-7

8 The trial court granted the homeowners summary judgment motion, holding that the evidence established that any danger posed by the retaining wall was open and obvious. Id. 12. The trial court further held that neither of the recognized exceptions to the open and obvious rule applied because plaintiff previously testified that he was aware that the wall was there. Id. On appeal, plaintiff contended that the trial court erred by granting summary judgment because the question as to whether the retaining wall was open and obvious should be a question of fact for the jury to decide. Id. 15. Plaintiff also argued that the distraction and deliberate encounter exceptions applied. Id. The appellate court rejected plaintiff s argument that there was a question of fact as to whether the retaining wall was an open and obvious condition: Id. 31. The potential hazard was undisputedly open and obvious to plaintiff at that time. Appreciating that a fall from the retaining wall might cause injury, plaintiff nonetheless walked up the incline on the high side of the retaining wall, putting himself in a position that made it more difficult to distinguish the top of the retaining wall from the patio below. According to plaintiff, the uniform snow cover visually blended the high and low sides of the retaining wall into a seamless field of bright white. But plaintiff had seen the retaining wall and knew the hazard was still there. It was his responsibility to take care to avoid any danger inherent in such condition. Once the court determined that the condition was open and obvious, the remainder of the analysis was whether one of the exceptions applied. The court held that they did not. The court first analyzed whether the distraction exception applied. Plaintiff contended that he was distracted from the risk presented by the retaining wall by the task of having to measure the backyard of the homeowners home, including his use of a tape measure at the time of the injury. Id. 34. The court rejected this argument and reasoned that the distraction exception did not apply because the homeowners could not have reasonably anticipated plaintiff would become distracted to the point of being unable to protect himself against the dangers posed by the retaining wall. Id. 36. The court, citing to Bruns, added that plaintiff was in complete control of his alleged distraction (use of the tape measure) and that he literally held the distraction in his hand. Id. The court also analyzed the deliberate encounter exception, which was not a subject of the Bruns decision. Plaintiff argued that the deliberate encounter exception applied because he reasonably proceeded through his measurements regardless of the known danger due to the economic necessity that he complete the appraisal. Id. 40. The court disagreed and reasoned that plaintiff was in control of his own circumstances, including choosing the time when he conducted the appraisal and the manner by which he conducted it. Id. 42. The court stated that even if the homeowners should have known that an appraisal required taking measurements of the exterior of the home, it was not reasonably foreseeable that the appraisal K-8

9 could only be completed by risking a fall off the retaining wall. Id. The court noted that the deliberate encounter exception typically applies when a plaintiff has to make a choice between either facing dangers or neglecting his duties. Id. The court found that such a choice was not at issue here and further commented that plaintiff could have taken small precautions on his own including brushing the snow off of the retaining wall so that the edge was more visible. Id. Ultimately, the court held that neither exception to the open and obvious doctrine applied and affirmed summary judgment in favor of the homeowner. Id. 42, delatorre v. Lake Effect Dev. III, LLC In yet another unpublished decision from the Second District, the delatorre case, plaintiff stepped into a rut on a construction site and injured his knee. delatorre v. Lake Effect Dev. III, LLC, 2015 IL App (2d) U. Plaintiff brought a negligence action against the general contractor (and subcontractor), and again, the issue turned on whether one of the exceptions to the open and obvious rule applied. delatorre, 2015 IL App (2d) U, 5. Defendant moved for summary judgment contending that the rut plaintiff stepped in was an open and obvious danger. Id. 13. Plaintiff countered that the distraction exception and/or the deliberate encounter exception applied and that defendant owed plaintiff a duty of reasonable care. Id. 16. The trial court granted summary judgment and plaintiff appealed. Id. 17. In an unpublished opinion, the Second District reversed, holding that the deliberate encounter exception applied with respect to the allegations against the general contractor. The court held that plaintiff s testimony established that it was reasonably foreseeable that plaintiff would choose to encounter the rut that caused his injury. Id. 29. The court cited to testimony establishing that in order to enter the building at issue with his materials, plaintiff was required to encounter the rut that caused his injury. Id. There was also evidence that plaintiff would have lost his job if he did not enter the building and perform his work as instructed. Id. With respect to the general contractor defendant, the court thus reversed the trial court s grant of summary judgment and remanded the case for further proceedings. Id Escobar v. Chicago Transit Auth. The unpublished First District Escobar decision was issued the day after the Bruns decision was published. Escobar v. Chicago Transit Auth., 2014 IL App (1st) U. Plaintiff had filed a personal injury action against the defendant Chicago Transit Authority after his decedent was struck and killed by an oncoming train operated by defendant. Escobar, 2014 IL App (1st) U, 2. The trial court granted defendant s motion for summary judgment, reasoning that standing on the tracks in front of a moving train is an open and obvious danger. Id. 20. There were several factual nuances to this case including the allegation by defendants that this constituted a suicide. On appeal, plaintiff claimed that the trial court erred in granting defendant s motion for summary judgment given that the open and obvious doctrine was inapplicable because he raised claims related to ordinary negligence rather than premises liability. Id. 22. The court K-9

10 rejected this as there was insufficient evidence of negligence on the part of defendant s employees, and noted that there was no distinction between active and passive negligence in the application of the open and obvious rule. Id , 35. The court proceeded with an analysis under the open and obvious doctrine, including a review of the applicable precedents. The court found that trespassing on train tracks is an open and obvious danger. Id. 36. The court then analyzed whether either of the recognized exceptions applied. The court rejected the distraction exception, holding that defendant could not reasonably anticipate passengers leaving the platform and going onto the train tracks. Id. 37. The court also rejected the deliberate encounter exception, as any reasonable person in decedent s position would conclude that the risk of going onto train tracks outweighs any possible advantages. Id. 38. In affirming summary judgment for defendant, the court further held that even if the open and obvious rule did not apply, summary judgment would still have been appropriate since the case was ruled a suicide, which is an intervening act that defendant could not have foreseen. Id. 40. As noted above, this decision was issued the day after the Bruns decision and the Bruns case was not cited. Thus, it is unclear whether the court considered the Bruns decision in reaching its decision. C. Illinois Federal Court Decisions Post-Bruns 1. Rich v. Quad In the post-bruns case of Rich v. Quad arising in the Northern District of Illinois, plaintiff, a journeyman insulator, fell after tripping on the lip of a lift. Plaintiff filed a complaint against defendants under theories of premises liability, general negligence, and construction negligence, alleging that defendants failed to provide him with a safe place of work. Rich v. Quad, 2014 U.S. Dist. LEXIS , at *8 (N.D. Ill. Nov. 10, 2014). Defendants moved for summary judgment, arguing, among other issues, that the alleged danger of the lip was open and obvious. Id. at *8. Defendants further contended that they owed no duty to the plaintiff because they lacked actual or constructive notice of a dangerous and condition at their facility. Id. at *11. Plaintiff did not dispute that the lip on the lift was an open and obvious danger. Rather, plaintiff argued that summary judgment should be denied since both the deliberate encounter exception and the distraction exception applied. Id. at *14. With respect to the deliberate encounter exception, defendant argued that the deliberate encounter exception did not apply because plaintiff had used the lift on multiple occasions previously without injuring himself and had presented no evidence that there was no other option available to him. Id. at *13. The court rejected both of these arguments, reasoning that there was no Illinois precedent for the proposition that a condition has to injure a claimant each and every time it is encountered to be dangerous, and that the availability of another lift, even if one existed, would not be dispositive by itself. Id. The court concluded that defendants should K-10

11 have reasonably anticipated that employees would deliberately encounter the danger of the lip on the lift because without doing so, employees would not be able to complete their job. Id. The court next assessed the distraction exception, including a discussion of the recent Bruns decision. The court summarized Bruns as standing for the proposition that while no liability will lie for an invitee s self-made distractions, a defendant will be liable where a distraction requires a plaintiff to divert himself from an open and obvious danger, and such distraction is reasonably foreseeable to the defendant. Id. at *17. The court found that in this case the distraction exception applied because in order to get in and out of the lift, a worker had to step over the lip, maneuver through a small doorway, hang over a two step ladder onto a blind step, and make sure that his tool belt did not snag on the door. Id. The court concluded that when the evidence was viewed in a light most favorable to plaintiff, there was ample evidence that plaintiff could be distracted and forget the open and obvious danger of the lip. Id. The court thus found that both exceptions to the open and obvious rule applied, and denied defendants summary judgment motion. Id. at *19. III. ILLINOIS PREMISES LIABILITY ACT LEGISLATIVE UPDATE A. Illinois House Bill 1441 Following the Bruns decision, Illinois Representative Jack D. Franks (D - McHenry County) proposed to amend the Premises Liability Act, 740 ILCS 130/2. The proposed legislation is known as House Bill 1441 and would have a substantial impact on the open and obvious rule and case law discussed supra. The proposed amendment states: Whether a condition is open and obvious may be considered by the trier of fact only in assessing the degree of comparative fault, if any, under Section of the Code of Civil Procedure and shall not be considered with respect to any other issue of law or fact, including duty. On February 6, 2015, the House of Representatives had its first reading of the amendment. The proposed amendment was subsequently assigned to the Judiciary Civil Committee on February 24, On March 19, 2015, the amendment was assigned to the Civil Process Subcommittee. Most recently, on March 27, 2015, the House of Representatives re-referred the bill to the Rules Committee pursuant to House Rule 19(a). The proposed legislation, by stating that evidence of an open and obvious condition cannot be considered in the determination of a duty, would essentially supersede the traditional common law duty analysis in premises liability cases and render much of the Bruns decision moot. As discussed in prior sections of this update, the question of whether a duty exists in a premises liability case is typically one of law for the court, as opposed to being a factual question for the jury. A fair reading of the proposed legislation would remove the court from this gatekeeper role in cases involving open and obvious conditions. The practical impact on the defense attorney K-11

12 and claims specialist is that it would be difficult if not impossible to obtain a pre-trial dismissal or favorable summary judgment ruling based on the open and obvious rule, making premises liability cases more difficult to defend. K-12

13 Andrew J. Roth - Partner Andy's practice is focused on defending toxic tort, asbestos, and medical malpractice cases. Licensed in Illinois and Wisconsin, Andy also has a wide range of experience defending civil cases involving premises, auto and product liability; trucking; construction; dramshop; and insurance coverage. Andy has tried a number of cases involving medical malpractice, personal injury and contractual disputes. Andy has also represented clients in alternative dispute resolution, including mediations, settlement conferences, and arbitrations. He has deposed countless plaintiffs, experts, treating physicians, codefendants, and witnesses. Andy graduated magna cum laude from Northern Illinois University College of Law in 2003, and served as an associate editor on the school's Law Review. Andy began his career at Heyl Royster by clerking in the firm's Rockford office. Significant Cases Represented defendant cardiothoracic surgeon at jury trial in the defense of allegations that defendant doctor improperly operated on the wrong vessel during a coronary artery bypass surgery (CABG). Plaintiff, who had a prior history of CABG presented with unstable angina, and an angiogram showed a clogged obtuse marginal vessel (OM). Defendant doctor recommended CABG. A post-surgery angiogram showed that the bypass graft was on the left internal mammary artery as opposed to the intended OM. An additional surgery then proceeded placing a stent in the OM, resulting in plaintiff having little if any coronary symptoms at the time of trial. Plaintiff claimed the doctor bypassed the wrong vessel and that he was therefore required to undergo an additional surgery, that his damages included additional morbidity and mortality. The defense argued that significant scar tissue existed on the second CABG that obscured the features and vessels in the heart. The jury returned a verdict for defense on all counts. Defended pain management doctor at jury trial against claims that the doctor improperly utilized a brachial plexus injection that pierced the plaintiff's long thoracic nerve, allegedly resulting in a deformity known as a "winged scapula." Plaintiff presented to defendant doctor with a serious condition known as Reflex Sympathetic Dystrophy Syndrome (RSD). Plaintiff's theory was that when defendant doctor treated the plaintiff with brachial plexus injections, he inadvertently pierced her long thoracic nerve causing permanent injury, including a winged scapula. The defense argued that the treatment resolved the plaintiff's limb threatening RSD symptoms, and it was physically impossible for the brachial plexus needle to pierce the long thoracic nerve as alleged by plaintiff. The jury returned a verdict for defense on all counts. Certain Underwriters at Lloyd's London v. Central Mutual Insurance, 2014 IL App (1st) (2014) - Representation of Central Mutual Insurance Company (Central) and its insured (Subcontractor) in a case in which the general contractor (Builder) and its insurer, Certain Underwriters at Lloyd's London (Underwriters) claimed that Central should have been the primary insurer in regard to coverage for severe personal injuries that allegedly occurred to a worker at a home construction site. The dispute arose because, although the Subcontractor was contractually obligated to maintain insurance for the Builder, the subcontractor agreement was silent as to whether this additional coverage was to be primary or excess. At the trial court level, the firm succeeded in getting Underwriter's declaratory action dismissed on motion for summary judgment, and Underwriters appealed. On appeal, the First District agreed with the firm in holding that Central's insurance would be considered excess and there would be no duty to defend or indemnify unless the primary limits were exceeded. Professional Associations Illinois State Bar Association Illinois Association of Defense Trial Counsel Defense Research Institute K-13 Learn more about our speakers at

14 Winnebago County Bar Association Wisconsin State Bar Association Court Admissions State Courts of Illinois State Courts of Wisconsin United States District Court, Northern District of Illinois United States District Court, Eastern District of Wisconsin United States District Court, Western District of Wisconsin Education Juris Doctor, Northern Illinois University College of Law (magna cum laude), 2003 Bachelor of Science-Psychology, Western Illinois University, 1996 K-14 Learn more about our speakers at