Posts

An Update on #SnowLaw - What's a Sidewalk?

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I've previously written about snow removal liability, and particularly the case of Murphy-Hylton v. Lieberman Management Services, Inc., first at the appellate court and ultimately when the Illinois Supreme Court affirmed the appellate ruling. That case involved ice allegedly forming from a faulty downspout install, not merely removal of naturally accumulated snow.

In Hussey v. Chase Manor Condo. Assoc., the appellate court had occasion to revisit #snowlaw , specifically the Illinois Snow and Ice Removal Act, 745 ILCS 75/2, and its immunity provision. The case involved a plaintiff who slipped and fell while walking across an area that apparently had parking spaces but also excess paved area, which condo residents would walk across to enter the building.  The trial court had granted summary judgment to the association, finding this area to be equivalent to a "sidewalk."

What exactly is a "sidewalk?" It's important because the Act grants immunity to snow re…

#TreeLaw - If a Tree Falls in the Woods, Can You Sue???

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A few years ago I wrote this post about liability issues for neighbors where a tree limb hangs over the property line.  A focus of the article was the Illinois appellate court ruling in Ortiz v. Jesus People U.S.A., a case in which a large tree branch extended over a public sidewalk, and fell, injuring a pedestrian.  The appellate court affirmed a trial verdict finding the defendant liable - they negligently failed to meet their legal duty of reasonable care, and that the resulting injury was a foreseeable result.

The Ortiz case arose in Chicago, an urban setting obviously. Two more recent cases further clarified the law of tree liability - for trees next to a road, and for trees located on a park-like property, such as a private golf club.

In Belton v. Cook County Forest Preserve District, the plaintiff sued the District after a tree fell on on his car as he was driving on a road adjacent to the forest preserve. The trial court had granted summary judgment for the District, based …

An Update on Illinois Public Insurance Adjuster Laws

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A few years ago I wrote this post about public insurance adjusters and the law in Illinois, and the 2011 case of Golub and Associates v. State Farm Fire and Casualty Company. Thank you to all who commented on that post (and there were many!).  Based on the level of interest and the fact that the relevant statutes have been amended since the last post, I decided to write this update.  
What's a public insurance adjuster?  See here for the full definition in the statute.  Basically, a public adjuster is hired to assist someone who has suffered a catastrophe or other loss or damage to property, in negotiating with the insurance company on behalf of the insured. To do so in Illinois, the public adjuster is required to hold a license.  
The rules for obtaining and maintaining a license are provided in Article XLV of the Illinois Insurance Code; this Article is also referred to as the "Public Adjusters Law," and became effective in 2011.  Since that time, Article XLV has been…

Hold Harmless / Release Contracts - An Update

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I previously wrote about the law of hold harmless or legal release contracts in Illinois, but an update of recent court cases is timely. The general rule has not changed. Illinois views such agreements as valid and legally binding, under the public policy of allowing freedom of contract.  But because Illinois also has a strong policy that a person should be liable for their own negligence, courts strictly construe such contracts against the benefitting party, and carve out some exceptions to enforceability.
Generally a release is enforceable if (1) its terms are clear, explicit, and precise; (2) the release language (sometimes called the "exculpatory clause") encompasses the activity, circumstance, or situation contemplated by the parties to relieve the defendant from a duty of care; (3) it is not against settled public policy; and (4) nothing in the "social relationship of the parties militates against upholding the agreement."

Regarding the final factor, contra…

Another Cautionary Tale for Power of Attorney Agents and Self-dealing

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The Illinois Appellate Court 4th District case of Collins v. Noltensmeier provides an example of why power attorney agents need to tread very carefully when giving gifts to themselves.  After the principal (Billy) passed away, the case arose as a dispute between Billy's brother and niece (plaintiffs) and his long-term girlfriend/partner Patricia who also acted as his caretaker. Billy signed a will and power of attorney for property (using the statutory short form) about a week before he passed away, naming Patricia as his POA agent, executor and sole beneficiary in his will.

After Billy died and Defendant filed his will with the court, plaintiffs filed a will contest and a separate case against defendant for breach of fiduciary duty and wrongful conversion of Billy's IRA.  Apparently Patricia acting as POA agent for Billy had changed the beneficiary of his IRA, to herself. In court, Patricia defended herself by citing the wording of the Illinois statutory POA form, which inc…

Lawyers' Worst E-Filing Nightmare

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In Peraino v. Winnebago County, after summary judgment was awarded to the defendant, the plaintiff's attorney waiting until the last few minutes before the deadline to file a motion to reconsider.  That deadline landed on 1/3/17.  The attorney apparently attempted to upload the motion at 11:55 pm that day, but ran into issues getting the file to upload, such that it was not processed and date-stamped until 12:03 am on 1/4/17.

On appeal, plaintiff's attorney relied on a local rule regarding e-filing technical problems.  There was a discussion about whether a user error was a technical problem within the scope of the local rule (the trial court ruled it was not).

Ultimately though the appellate court noted the problem here was a new e-filing spin on a longstanding legal principle.  The 30 day deadline after final judgment lapsed, meaning the court no longer had jurisdiction over the case, and therefore could not provide the relief sought.  Similarly, the plaintiff's attem…

In Employment Termination Context, "Cause" Means Something

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What does "cause" mean?  In McManus v. Richards, an orthodontist was buying into a practice group, but four years into the buy-in contract, when she had paid for a 45% interest and was nearing equal partner status with the other orthodontist, she was fired for "cause."  The two doctors had apparently fallen out and the one buying in informed the other of her intent to dissociate from the practice, so she was fired preemptively.  She showed up to the office one morning, and the locks had been changed, computer passwords changed, and she was excluded access to patient records.

As we often see with such ownership buy-in arrangements, there was a buy-in contract, but no separate employment contract.  The buy-in contract identified party rights to dissociate, voluntarily or in event of "cause," but "cause" was not defined.  The existing practice owner argued that in this case the word "cause" was merely as defined by the dictionary - any …