Retailers` and Landowners` Liabilities

Transcription

Retailers’ and
Landowners’ Liabilities
Andrew Kopon Jr.
Michael A. Airdo
Ryan L. Greely
Kopon Airdo, LLC
233 South Wacker Drive, Suite 4450
Chicago, Illinois 60606
P 312.506.4450
F 312.506.4460
KoponAirdo.com
© 2014 Kopon Airdo, LLC
TABLE OF CONTENTS
I.
II.
III.
INTRODUCTION
1
A.
3
Negligence Claims in General
FOREIGN SUBSTANCES
6
A.
Establishing Liability
1. Notice Not Required: Evidence of Defendant’s Negligence
2. Notice Required: Condition Caused by Third Party
a. Actual Knowledge
b. Constructive Knowledge
c. “Reasonable Care” of Landowner
6
7
9
9
9
11
B.
Applying Notice Law to Store Policies and Procedures
13
DANGEROUS CONDITIONS
15
A.
1. Open and Obvious Doctrine
a. Distraction Exception to the Open and Obvious Doctrine
b. Deliberate Encounter Exception to the Open and Obvious
Doctrine
2. Open and Obvious – Expert Opinions
3. Open and Obvious – Children
4. What to take from the Open & Obvious Cases
15
16
17
B.
Common Dangerous Conditions
1. Shelves
2. Floors, Floor Mats, and Carpeting
3. Stairs and Escalators
4. Parking Lots
5. Sidewalks
6. Ingress & Egress
7. Natural Conditions on the Land
8. Dangerous Conditions Created by the Business Owner
9. Cases Involving Miscellaneous Dangerous Conditions
10. The De Minimis Rule
a. Exceptions to the De Minimis Rule
11. What to take from the Cases involving Dangerous Conditions
12. Construction Statute of Repose
26
26
27
29
30
32
33
34
35
36
38
39
40
41
C.
Applying Law on Dangerous Conditions to Store Policies and
Procedures
43
21
23
24
26
IV.
V.
VI.
ACCUMULATION OF SNOW AND ICE
45
A.
General Rule
1. Natural Accumulation & Safe Means of Ingress & Egress
45
47
B.
Exceptions to the Natural Accumulation Rule
1. Voluntary Undertaking
2. Unnatural Accumulations or Aggravations of a Natural
Condition
a. Parking Lots
b. Rooftops and Building Defects
c. Inadequate Lighting
d. Store Protocol Not Followed
3. Contractual Obligations to Remove Natural Accumulations
50
50
C.
Residential Landowners and Occupants
57
D.
Chicago City Ordinance
58
E.
What to take from the Natural Accumulation Cases
59
F.
Applying Law on Natural Accumulations to Store Policies and
Procedures
59
52
52
54
55
56
56
MUNICIPAL IMMUNITY
61
A.
Permitted and Intended Users
1. Alleys, Sidewalks, Streets, and Parkways
2. Recreational Property
3. Willful and Wanton Conduct
4. Special Duty Exception
61
62
64
66
66
B.
Notice
67
C.
General Conditions
68
D.
What to take from the Municipal Immunity Cases
68
E.
Applying Law in Cases in which Municipality is a Defendant
68
AFFIRMATIVE DEFENSES
69
A.
Contributory Negligence
69
B.
Mitigation of Damages
70
C.
Statute of Limitations
VII. PROPER INVESTIGATION PROCEDURES
72
A.
Store Personnel
72
B.
Claims Representatives
72
C.
Recorded Statements
73
D.
Collecting Evidence
1. Testimonial Proof and Witnesses
2. Documentary Proof
3. Demonstrative Proof
73
73
73
74
E.
Large Loss Cases
74
VIII. CONTRIBUTION AND JOINT AND SEVERAL
LIABILITY
IX.
71
75
A.
Contribution
75
B.
Joint and Several Liability
78
RISK MANAGEMENT ISSUES IN PREMISES
LIABILITY CASES
80
A.
Spoliation of Evidence
80
B.
Contract Risk-Shifting Measures
82
C.
Contract Risk-Shifting Measures: What to Look For
83
D.
Indemnification
1. Indemnified Parties
2. Types of Claims
3. Indemnification and Defense
4. Mutual Indemnity
5. Examples
6. Other Considerations for Specificity of Indemnity Provision
7. Retail Tenant and Landlord Issues
8. Indemnity in Construction
9. State By State Anti-Indemnity Statutes
84
84
84
85
85
85
89
90
91
91
X.
E.
Coverage
1. Additional Insured
2. Proof of Coverage
3. Timing
4. Examples
95
95
95
96
96
F.
Certificates of Insurance
1. Examples
97
99
G.
When to Tender
104
H.
Determination of the Duty to Defend
104
I.
What is Considered Late Notice to the Insurer?
106
J.
Waiver of Subrogation
1. Examples
107
108
CRIMINAL ACTS OF THIRD PARTIES
A.
General Rule
109
B.
Existence of a Special Relationship
110
C.
XI.
109
Reasonable Foreseeability
1. Knowledge of Propensity for Violence
2. Evidence of Prior Occurrences
3. Duty to Provide Safe Means of Ingress/Egress
4. Voluntary Undertaking
5. Liability for Independent Contractors
110
112
112
114
115
116
D.
What to take from the Criminal Acts of Third Party Cases
117
E.
Applying Law in Criminal Acts of Third Parties to Prevent Losses in
Retail
118
DRAM SHOP LIABILITY
120
A.
General Rule
120
B.
Elements of a Dram Shop Action
1. Proof of Intoxication
2. Causation of Intoxication
3. Causation of the Injury
120
121
123
123
XII.
XIII.
C.
Defenses
1. Complicity
2. Provocation
124
124
125
D.
Other Considerations
1. Common Law Claims
2. Application of the Fireman’s Rule to Dram Shop Claims
3. Enforcing Illinois Dram Shop in Other States
126
126
127
128
E.
Damages
129
1. Statutory Limitation of Damages
129
2. Contribution
129
3. Allocation of Loss Among Defendants and Set-Offs
130
4. Interplay Between Dram Shop Act and Insurance Guaranty Fund
Act
131
F.
What to take from the Dram Shop Act Cases
132
G.
Applying Law in Dram Shop Cases to Prevent Liability
132
RECENT PROPOSED LEGISLATION REGARDING
ILLINOIS CLAIMS
133
A.
Illinois Senate Bill 1912
133
B.
Illinois House Bill 3407
133
C.
Restatement (Third) of Torts
134
WISCONSIN PREMISES LIABILITY LAW
136
A.
Negligence Standard
136
B.
Causation
136
C.
Safe Place Statue and Negligence Claims
1. Notice
2. Snow and Ice Accumulation
3. Affirmative Defenses
136
138
139
140
D.
Criminal Acts of Third Parties
1. Innkeepers Liability for Criminal Acts of Third Parties
141
143
E.
Dram Shop Liability
143
RETAILERS’ AND LANDOWNERS’ LIABILITIES
INTRODUCTION
Customers in retail establishments will slip and fall. Accidents in retail establishments
can happen at any moment, and the surrounding circumstances of an accident may appear to be
fairly straightforward. But if handled improperly, it can have devastating financial consequences
for a landowner or occupier’s business. That need not be the case, however, if the defense of the
ensuing premise liability lawsuit is skillfully handled from the start. If you own or manage
property and serve the public, you need to be aware of potential liabilities on your premises and
have a good strategy in place for avoiding lawsuits if possible, and successfully defending
against lawsuits brought by customers that are injured on the premises.
The Kopon Airdo, LLC Retailers’ and Landowners’ Liabilities Manual is designed to
help retail establishments, owners and managers of real property, and insurance personnel
anticipate and address potential legal issues affecting premises owners and the retail industry.
Under the law, retail stores must take reasonable measures to keep their customers safe
from foreseeable dangers. What are these reasonable measures? A store’s first line of defense
against expensive litigation is the implementation of written policies which set forth procedures
as to how the business and its employees should maintain the premises in a reasonably safe
condition for its customers.
Further, the installation, documentation and use of a comprehensive customer safety
system should be utilized.1 Most slip and fall cases lack direct evidence to prove the store’s
liability; therefore, many injured customers must rely on circumstantial evidence to prove their
case. If a store does not have a written customer safety system in place with written records and
inspection documentation, a jury may be more inclined to believe the injured customer’s version
of events. An effective defense begins with a thorough investigation immediately after the
accident occurs in order to gather all the facts, an understating of the law in order to tailor your
investigation and accident prevention policies, and the early formulation of a coherent strategy
for the presentation of your defense counsel’s themes to a trier of fact. The defense theme of a
trial should begin immediately after the accident.
Most retail establishments operate on a narrow net profit margin -- sometimes less than 1
percent.2 Consider the impact to a single store after an accident that carries a direct cost of
$10,000. How many additional items of merchandise would the retailer need to sell to make up
the lost revenue? The following examples provide some insight:
1
Supermarket/Retail Safety Solutions: A Pedestrian Safety System to Increase Facility Safety and Reduce Liability.
Rubbermaid, version 1.9. May, 2004.
2
Retail Safety Solutions: Slip, Trip, and Fall Prevention. Zurich’s Retail Safety Solutions Newsletter. 1 st edition.
Zurich Services Corporation, 2008.
1

If the profit on a gallon of milk costing $2.99 is 30 percent or 90 cents, a grocery
store would need to sell an additional 11,111 gallons of milk to break even.3
The success of a solid safety program starts at the top - which means that management is
ultimately responsible and accountable for preventing injuries, which will in turn play a part in a
successful and profitable sales strategy.
The initial consideration management should take into account when implementing and
following procedures to respond to, and prevent accidents, as well as the relevant case law
management should be aware of, is all discussed in greater detail throughout this article. In
short, the initial considerations are generally as follows: 4

Preserve Coverage: The first thing to do is identify all available primary and
excess insurance coverage relative to the loss. Timely notice to all insurers is essential to avoid
jeopardizing coverage.

Investigation and the Fact Finding Process: A defense is only as strong as the
proof one has to support it. It does not matter what you feel about a case because it must be
translated into proof which can be admitted into evidence.

Testimonial Proof and Witnesses: Informal interviews of the claimant/plaintiff,
any eyewitnesses, and those who possess "material knowledge," of the accident and condition,
should be conducted as soon as possible. Store management should interview and independently
identify those who are likely to be familiar with the condition and who can testify at trial. After
these informal interviews are taken, if favorable information is gathered from these witnesses,
taking a formal, recorded statement would aid in the defense of the matter.

Documentary Proof: Accident reports, customer reports, employee reports, as well
as any report from any outside agency that responded to the scene, must be obtained early on.
Other types of documentation may differ on the kind of retail establishment, or by the type of
accident involved. Whether your business’s records help or hurt is initially irrelevant. You must
identify and secure all (potentially) relevant records including: incident/accident reports, leases,
complaint logs/records, maintenance logs/dispatch sheets, security logbooks/daily reports, repair
records/work slips, tenant files, any proposals for repair/renovation, property surveys, contractor
records/contracts, payroll/timesheet records, government permits, correspondence, photographs,
and citations/violations. Defense counsel will need all of this information.

Demonstrative Proof: The landowner should determine whether there is any
surveillance footage or any photographs depicting the accident or the condition that caused the
accident. Demonstrative evidence is important, as it the usually the most persuasive proof in the
eyes of a jury. The compelling nature of demonstrative evidence can also be used to refute the
plaintiff's contention as to how the accident happened, and/or to bolster a defense theory. In
3
4
Id.
Id.
2
addition, a site visit is recommended to gain a realistic appreciation of the circumstances
involved in the happening of the accident.5
Negligence Claims in General
The majority of the types of claims discussed in this article are based in the law of
negligence. Accordingly, there are several basic principles regarding negligence claims that
apply throughout this article, and it is necessary that you are familiar these principles in order to
better understand the specific types of claims addressed below.
The law of negligence places a general duty on all persons to act reasonably and prudent
to avoid inflicting foreseeable harm on people or property. The term “reasonably and prudent”
has been discussed in the context of the “reasonable person” standard. The courts have gone to
great lengths to describe the hypothetical character of this “reasonable” person because the
reasonable person is not similar to any ordinary individual, who might occasionally do
unreasonable things. Instead, the standard is based upon a careful and prudent person – an
individual who personifies reasonable behavior.6
The conduct of the reasonable person will vary with the circumstances of the situation in
which the person is confronted. A jury is typically instructed that negligence is a failure to do
what the reasonable person would do “under the same or similar circumstances.” 7 In other
words, in the context of general negligence, a person will only be required to act reasonably in
avoiding injury to others. If the person fails to act in a manner consistent with the reasonable
person standard, negligence could be found.
Premises liability is a type or subcategory of negligence. More specifically, “premises
liability” constitutes the body of law that sets the guidelines involving duties owed by an owner
or occupier of land to protect entrants on the land from injury. 8 Mere ownership of land or real
estate does not provide a basis of liability. Rather, liability is only established after a showing of
negligence on the part of the premises owner.9
Historically, determining liability for owners and occupiers of land was based upon the
status of the entrant. Generally, at common law, entrants were divided into four classifications,
including (1) children, (2) trespassers, (3) licensees, and (4) invitees. However, over time, many
states have done away with the licensee/invitee classifications, and generally refer to those
individuals lawfully on the premises as entrants. Illinois has done away with the distinction of
invitees and licensees, and thus those that are lawfully on the property of a landowner are
generally considered “invitees” for so long as they remain on the premises.10
5
Id.
Marc M. Schneier, Liability Arising From a Premises Defect, American Bar Association, Chapter 3, Owners and
General Contractors (1999).
7
William Prosser, Law of Torts, 4th Ed. (1971).
8
2 Premises Liability 3d §36:1 (October 2008).
9
Id.
10
Stephen v. Swiatkowski, 263 Ill. App. 3d 694635 N.E.2d 997 (1st Dist. 1994), citing 740 ILCS 130/2
6
3
This publication will primarily focus on those individuals who are legally and rightfully
on the premises (i.e. invitees) when an injury occurs, except as where specifically noted. If your
state still recognizes a distinction between invitee and licensee, the principles contained in this
article will still apply, as most business customers would fall into the invitee classification.
In order for a plaintiff to prevail on a claim for negligence in a premises liability case,
he/she must prove each of the following elements:

The existence of a duty on the part of the defendant to conform its behavior to a
specific standard of conduct for the protection of the plaintiff;

Breach of that duty by the defendant;

That the breach of that duty by the defendant was the actual and proximate cause of
the plaintiff’s injuries; and

Damage to the plaintiff’s person or property.
When a person engages in an activity, the individual is under a legal duty to act as an ordinary,
prudent, reasonable person. In a premises liability case, it is presumed that an ordinary, prudent,
reasonable person will take precautions against creating unreasonable risks of injury to other
persons. However, no duty is imposed upon the defendant to take precautions against events that
cannot be reasonably foreseen.
In Illinois, a landowner owes a duty of reasonable care to all of its business invitees. 11 In
determining whether a duty is owed to a customer, courts generally examine the following
factors:




The reasonable foreseeability of the injury;
The likelihood of injury;
The magnitude of the burden to guard against it; and
The consequences of placing that burden on the defendant.
Practically speaking, a court will look principally to whether an injury was reasonably
foreseeable in determining whether a duty exists on behalf of a landowner.
Plaintiffs bear the burden of proving their case. That is, the plaintiff must present
sufficient evidence establishing a duty, breach, proximate cause, and damages. Without such
evidence, judgment in favor of the defendant is warranted.
The general principles of premises liability law will apply in virtually every jurisdiction
in this country. Premises liability law is primarily based upon the Restatement (2nd) of Torts and
common law. The Restatement of Torts is a treatise that discusses almost all aspects of premises
liability law. However, some of the more specific provisions, or nuances, of premises liability
11
Id.
4
law have not been adopted in each and every state. For instance, in some states, such as Illinois,
the natural accumulation rule set out in the Restatement has been adopted, and landowners do not
owe entrants a duty to protect against natural accumulations, such as ice and snow. But, in a
minority of jurisdictions, the natural accumulation rule has not been adopted, and landowners in
those states, such as Indiana, are held to a general reasonableness standard, regardless of whether
or not the accident was caused by a foreign substance, defect, or natural accumulation.
Accordingly, a careful examination of your specific jurisdiction’s law should still be made when
applying the law discussed in this article.
5
FOREIGN SUBSTANCES
The “slip and fall” case is one of the most common types of premises liability actions
involving retail operators and landowners. While a variety of situations may serve as the basis
for a slip and fall action, the most common involves slipping on a foreign substance on the floor.
Business establishments should remain proactive in preventing a dangerous condition on the
premises.
So what constitutes a foreign substance? Put simply, a foreign substance can be any
material or object that is not where it is supposed to be. Examples can be food, water, grease, a
piece of merchandise or any other substance that could come to be on the floor of a business
establishment. Business owners and operators need to know that the law imposes upon them
certain duties to keep their premises safe, and in order to be able to take proactive steps to guard
against potential liability.
Generally, when a patron slips on a foreign substance, a business owner will only be held
liable under the following circumstances:
(1)
The foreign substance which caused the plaintiff’s injuries was placed on the floor
through the negligence of the store’s employee(s);
(2)
The owner or his employees had actual knowledge of the existence of the foreign
substance; or
(3)
The substance was present on the floor for a sufficient length of time so that, in
the exercise of due care, its presence should have been discovered. 12 This
knowledge is often referred to as “constructive knowledge.”
Stated more simply, the law presumes that there are two ways that a foreign substance can come
to be present on the floor of an establishment: (1) the store owner or his employees caused it to
be there; or (2) a third party, such as a customer caused it to be there. In cases where a third
party caused the substance to be on the floor, only when the business owner has knowledge of
the substance and fails to remove it or guard against it can it be held liable. Based on the law
regarding foreign substances, there are three questions that need to be asked of a premises owner
or operator in the event of a slip and fall on a foreign substance on the premises:
(1)
(2)
(3)
Did you put the foreign substance there or cause it to be on the floor?
If not,
Did you know about it?
Or
Should you have known about it?
12
Donoho v.O’Connell’s Inc., 13 Ill. 2d 113, 148 N.E.2d 434 (Ill. 1958); Olinger v. Great Atlantic and Pacific Tea Co.,
21 Ill. 2d 469, 173 N.E.2d 443 (Ill. 1961); Swartz v. Sears, Roebuck, and Co., 264 Ill. App. 3d 254, 272, 636 N.E.2d
642, 654 (1st Dist. 1993).
6
If the answer to any of the above questions is “yes”, the business owner/operator will likely be
held liable for the plaintiff’s injuries.
As an initial note, and as with any claim for negligence, the cause of a plaintiff’s injury
must be identifiable, and cannot be based on guess, conjecture or speculation.13 For example, in
Kimbrough v. Jewel Companies, Inc., a customer was injured upon leaving the defendant’s
store.14 The plaintiff testified that she “had no idea why she fell,” but evidence was offered that
there were several spots on the ramp that appeared to be greased. She did not recall whether the
spots were wet. Moreover, the plaintiff testified that she did not know whether her foot actually
came into contact with the grease before she fell. Since the plaintiff bears the burden of
establishing that the defendant’s negligent acts caused the claimed injuries, the court found in
favor of the defendant, because the plaintiff did not prove that the grease caused her to fall.
Notice Not Required: Evidence of Defendant’s Negligence
Liability will be imposed on a business owner when it is established that one of its agents
caused the foreign substance to be on the floor. Because it is often difficult to prove that the
defendant actually caused the foreign substance to be on the floor, courts will often infer that the
employees of the establishment caused the substance to be on the floor when: (1) the substance is
related to the defendant’s business; and (2) when the plaintiff offers some circumstantial
evidence that the substance on the floor was more likely to have been caused to be there by an
agent of the defendant rather than a third party (i.e. a customer).
The leading case on this issue in Illinois is Donoho v. O’Connell’s, Inc.15 In Donoho,
the plaintiff was injured when she slipped on onions on the floor of a restaurant. 16 The plaintiff
presented evidence that the onion that she fell on was used at the defendant’s business, and that a
busboy of the restaurant had wiped off the table in front of where the plaintiff fell several
minutes prior to the plaintiff’s fall. The Court held that since the plaintiff showed that the
substance was related to the defendant’s business and that there was some circumstantial
evidence of negligence, in that the busboy could have swept the onion onto the floor when he
cleared the table, this was sufficient to create an inference of negligence on behalf of the
restaurant.
Once the plaintiff presents evidence that the foreign substance is connected to the
defendant’s business, the plaintiff need only present circumstantial evidence of the owner’s
negligence. In doing so, the plaintiff must present evidence making it more probable that
proprietor or his employees caused the substance to be on the floor as opposed to a third party,
such as a customer.17 In other words, if it is just as likely that a customer caused the substance
to be on the floor as the proprietor, an inference of negligence will not be created. This is
13
Kimbrough v. Jewel Companies, Inc., 92 Ill. App. 3d 813, 416 N.E.2d 328 (1st Dist. 1981).
Id.
15
Donoho v. O’Connell’s, Inc., 13 Ill. 2d 113, 148 N.E.2d 434 (Ill. 1958); Olinger v. Great Atlantic and Pacific Tea
Co., 21 Ill. 2d 469, 173 N.E.2d 443 (Ill. 1961).
16
Donoho, 13 Ill. 2d 113.
17
Id.
14
7
usually established by the plaintiff presenting evidence of some practice or procedure of the
establishment that could have caused the substance to be on the floor.
Going back to the Donoho case as an example, the court held that it was more likely than
not that the defendant’s busboy caused the onion that the plaintiff slipped on to be on the floor
than a third party, due to the fact that the busboy wiped off the table in front of where the
plaintiff fell, and the fact that no other customers went through that area prior to the plaintiff’s
fall.
An example pertaining to a grocery store would be the case of Pabst v. Hillman’s, in
which a grocery store customer slipped on a string bean near the vegetable bin which was
brimming over.18 Because the string bean was connected to the establishment, and because the
plaintiff presented evidence that the bean was on the floor right next to the bin where the beans
were stocked, and the bin was overflowing at the time of the fall, the court drew the inference
that the bean was on the floor through the negligence of the store’s overstocking its vegetable
bin.
A favorable defense case on this subject is Thompson v. Economy Super Marts, Inc.19 In
the Thompson case, the plaintiff was injured when she allegedly slipped on water and a lettuce
leaf near the produce section of the grocery store. The plaintiff presented evidence that the
lettuce was stocked two to three feet away from where the leaf was on the floor, and was packed
in ice. The plaintiff argued that the location of the lettuce and water on the floor next to the shelf
where the lettuce was packed on ice should, by itself, be enough to create an inference of
negligence. The court disagreed, and held that since the plaintiff failed to present evidence of
any of the grocery store’s procedures that could have caused the leaf or water to be on the floor,
the plaintiff did not meet her burden under the Donoho approach. The court noted that even
where there is proof that the foreign substance was related to the defendant's business, but no
further evidence is offered other than the presence of the substance and the occurrence of the
injury, such evidence is insufficient to support the necessary inference of negligence.20
While circumstantial evidence can create an inference of negligence, the evidence cannot
be speculative. In Wroblewski v. Hillman’s, a customer slipped on a lettuce leaf near the checkout counter of a grocery store.21 The plaintiff argued that the leaf “may have fallen from an
empty shopping cart as one of the defendant’s employees jostled it into position for re-use by
incoming customers.” The court held that the record was devoid of any evidence supporting this
speculation. The plaintiff also asserted that the defendant’s failure to pre-wrap all of its
vegetables was negligent. In response, the court noted that a storekeeper is not an insurer of his
customer’s safety.22 Except in extraordinary circumstances, the law does not require one to
employ the safest of all possible procedures in order to avoid tort liability. Because the record
was devoid of any evidence establishing that the defendant’s practices and procedures relating to
its produce department were unusual or created hazardous conditions for the patrons of its store,
judgment in favor of the defendant was warranted.
18
Pabst v. Hillman’s, 293 Ill. App. 547, 13 N.E.2d 77 (1st Dist. 1938).
221 Ill. App. 3d 263, 581 N.E.2d 885, 163 Ill. Dec. 731 (3rd Dist. 1991).
20
Id. at 265-66
21
43 Ill. App. 2d 246, 193 N.E.2d 470 (1st Dist. 1963).
22
Id.
19
8
Notice Required: Condition Caused By Third Party
When there is no evidence that the substance was caused to be on the floor by the acts of
a store employee, a plaintiff must establish that the store had notice of the foreign substance on
the floor in order for liability to be imposed. This occurs in situations when the substance is on
the floor due to the act of a third party (i.e. customer drops a piece of fruit or spills water), or
where there is no evidence of how it reached the floor (i.e. a banana peel in paper product aisle
of store). As discussed above, either actual or constructive knowledge will charge the owner
with notice of the condition and impose liability.
Actual Knowledge
A business owner will be held liable if it has actual knowledge of a foreign substance on
the floor and fails to remove or guard against the substance prior to it causing a patron’s injury.
If an employee has knowledge of the presence of a foreign substance, that knowledge will be
imputed on the defendant/employer.
An example of a case involving actual knowledge of a foreign substance, is Vojas v. K
Mart Corp., in which the plaintiff alleged that she slipped on a “black substance” while shopping
in the defendant’s store.23 The customer reportedly notified store employees of the incident. In
response, one of the employees stated, “I thought they had cleaned that up.” The court held that
because the statement by the employee established that the employee personally knew that the
substance was on the floor and failed to remove it, the establishment had actual notice of the
condition. Similarly, in Pavlik v. Wal-Mart Stores, Inc., the court held that an employee’s
statement that “someone should have cleaned up [the puddle of water] before” was evidence of
the store’s actual knowledge of the condition.24
Evidence of prior accidents, regardless of whether the accidents were substantially
similar, can also charge the business owner with actual notice of a hazard. In Windeguth v.
National Super Markets, Inc., a customer brought suit against a grocery store for injuries
allegedly sustained when she slipped on a grape in the store.25 In support of her argument that
the defendant had notice of the foreign substance, the plaintiff admitted the testimony of a
customer who fell on a grape in the store one and a half years before the subject accident. The
court held that even “evidence of dissimilar prior accidents is relevant to the issue of whether the
defendant knew the accident site was generally hazardous.”
Constructive Knowledge
To constitute constructive notice, a foreign substance must be visible and apparent and it
must exist for a sufficient length of time prior to the accident such that the business should have
discovered the substance through the exercise of reasonable care. This is a fact sensitive standard
that is determined on a case-by-case basis. In order to charge the defendant with constructive
notice, the plaintiff must present evidence regarding the length of time the substance was on the
23
312 Ill. App. 3d 544, 727 N.E.2d 397 (5th Dist. 2000).
25
24
9
floor.26 Whether the period of time was long enough for the store owner to have discovered the
condition when exercising reasonable care is question of fact for the jury to decide.27
For example, in Koehler v. Great Atlantic and Pacific Tea Co., a customer tripped and
fell near the entranceway of the defendant’s store.28 “Hardened” wax was found near the area
where the plaintiff slipped. Testimony was offered indicating that the wax was present on the
floor for at least four days, since four days earlier the floor had been waxed. The court held that
this four-day period was an adequate period of time to charge the defendant with notice. On the
other hand, the court in Hresil v. Sears, Roebuck & Co., held that the presence of foreign
substance on the floor of a self service store for ten minutes before a fall was an insufficient
period of time to give constructive notice because the accident happened at a time when few
shoppers were present and salespeople were located at the store exit.29
When there is no evidence of how long the condition existed, recovery against the store
owner will generally be denied.30 However, constructive notice is not solely dependent upon
length of time; rather, courts also consider the special circumstances surrounding each case. For
example, constructive knowledge may also be shown where, because of the location of the
accident, it can be inferred that the store’s employees could and should have seen the actual
spilling of the liquid or substance on the floor after it was spilled in time to remove or alert
others to its existence.31 For instance, a plaintiff may be able to show that a store had
constructive knowledge of a spill near a checkout where the cashiers could have easily seen and
remedied the condition.
Courts also look to the condition of the substance and the actions taken by the defendant
in correcting the condition. For example, in Vaughn v. National Tea Co., the plaintiff slipped on
a “mashed, slimy piece of lettuce” in the defendant’s store.32 The court held that the condition of
the lettuce leaf immediately after it had been stepped on was of probative value in determining
the length of time it had been on the floor. Because the lettuce leaf was dirty, crumpled, and
mashed, and because evidence was offered establishing that pedestrian traffic in the area was
light, the court held that the leaf was on the floor for a sufficient length of time to constitute
constructive notice to the store.
Similarly, in Saviola v. Sears, Roebuck and Co., a customer was injured when a straight
pin became embedded in her ankle while shopping in defendant’s department store. 33 Testimony
was offered by the plaintiff that there were eight to ten pins in the area where she was injured,
and many of these pins were “bent.” The court held that the condition of the pins “might
indicate that they had been there long enough to have been walked on.”
26
Thompson v. Economy Super Marts, Inc., 221 Ill. App. 3d 263, 581 N.E.2d 885 (3rd Dist. 1991).
Hays v. Bailey, 80 Ill. App. 3d 1027, 400 N.E.2d 544 (3rd Dist.1980); 62A Am.Jur.2d Premises Liability §521 (1990).
28
90 Ill. App. 2d 458, 232 N.E.2d 780 (2nd Dist. 1967).
29
30
Wroblewski v. Hillmans, Inc., 43 Ill. App. 2d 246, 193 N.E.2d 470 (1st Dist. 1963); 62A Am.Jur.2d Premises
Liability Sec. 521 (1990).
31
Perminas v. Montgomery Ward & Co., 60 Ill.2d 469, 328 N.E.2d 290 (Ill. 1975); 62A Am.Jur.2d Premises Liability
Sec. 521 (1990).
32
328 F.2d 128 (7th Cir. 1964).
33
27
10
“Reasonable Care” of Landowner
The law requires that a landowner exercise reasonable care in keeping its aisles, foyers,
hallways, and other common areas free of debris and foreign substances. In other words, the
landowner must not only exercise care in cleaning up foreign substance that it knows about, it
must also patrol its land looking for potential hazards.
In order to fulfill this duty, the owner must inspect and clean the premises on a regular
basis and must warn his or her customers or entrants of hazards they may encounter.34 In fact, a
landowner may prove a lack of constructive knowledge of a foreign substance on the floor by
demonstrating that it exercised reasonable care in inspecting the premises.35
While reasonable care may require the presence of employees, such as store clerks or
maintenance staff, to make sure that fallen items or substances do not remain on the floor, a
landowner is not required to constantly patrol the land.36 Courts have held that the duty of
inspection does not require continuous patrolling of the aisles; the cost would be disproportionate
to the benefit. But it may require frequent and careful patrolling in self-service stores where
customer traffic is heavy and the probability of a slip and fall therefore high (both because there
are many people using the aisles, who are customers rather than employees, and because the
probability that a customer through spillage or otherwise will create a hazardous condition is a
function of the number of customers per square foot of floor). Since employees have frequent
occasion to be in the store’s aisles in any event, they have only to be alert to the possibility of
spillage to notice it and clean it up promptly.37
An owner may be held liable for an injury to a customer resulting from a fall caused by a
slippery substance on the floor where the owner failed to make the minimal showing that its
procedures for inspection and cleanup are reasonable, or failed to show that it implemented
adequate cleaning procedures prior to the accident.38 In other words, an owner may be held
liable for an entrant’s fall on a foreign substance when the policies in place for inspecting the
premises, such as establishing walkthrough or sweep schedules, are deemed unreasonable in light
of a high probability that another entrant may create a dangerous condition. However, a
landowner may avoid liability for an injury to a customer resulting from a fall attributed to
slipping on debris or litter on the store floor by proving inspection on a regular basis.39
Accordingly, one way a business owner can minimize the risks of being held to have
constructive knowledge of a foreign substance is through regular inspections or “sweeps” of the
premises. If a business owner chooses to perform sweeps, the owner must ensure that its
employees are performing those duties in accordance with all company policies. The failure to
document the sweep check on the log timely, accurately, and in accordance with the policy,
could open the door to liability.
34
Deerhake v. DuQuoin State FairAss’n, Inc., 185 Ill. App. 3d 374, 541 N.E.2d 719 (5th Dist. 1989); 62A Am.Jur.2d
Premises Liability Sec. 520 (1990).
35
62A Am.Jur.2d Premises Liability Sec. 521 (1990).
36
37
Peterson v. Wal-Mart Stores, Inc., 241 F.3d 603, 604 (7th Cir. 2001).
38
39
11
For example, in Peterson v. Wal-Mart Stores, Inc., the plaintiff claimed he sustained
injuries from a slip and fall in the defendant’s store.40 Two of the defendant’s employees
testified that they had walked down the aisle where the plaintiff fell minutes prior to the fall, and
did not see any spills. The plaintiff testified that he was present in the subject aisle for ten
minutes prior to the fall and had not seen any employees. The appellate court found a duty on
behalf of the defendant, stating that while there is no duty of continuous inspection on the part
of the store, there is no flat rule in Illinois that ten minutes is always too short of a period of time
for a duty of inspection and cleanup to arise.41 The court found that the defendant store harmed
its defense by presenting evidence that its employees patrol the aisles constantly for spills, since
this implies that the employees may have been careless in failing to notice the spill claimed by
the plaintiff.
However, courts also understand the realities of a business on a busy day. In Ellis v.
Walmart, Inc., the plaintiff slipped on spilled laundry detergent in an aisle of the defendant’s
store.42 In addition, the defendant had a policy of performing at least four sweeps per day;
however, on that particular day, the defendant testified that the store was incredibly busy and
those sweeps were not logged as they normally would be. The court held that the plaintiff failed
to present any evidence that the detergent had been present for longer than a few minutes. The
only evidence that the plaintiff offered was the testimony of a customer who saw the liquid “a
couple of minutes” before the plaintiff fell in it. The Court stated that the plaintiff’s failure to
show how long the fabric softener had been on the floor was a failure to establish constructive
notice.
The holding in Ellis should serve as a caution that while, in this case, the court held that
the plaintiff failed to offer sufficient evidence to establish constructive notice, courts very often
seek to ensure that such sweeps are performed regularly, and that they are adequately
documented. If a business owner chooses to perform sweeps, the owner must ensure that its
employees are performing those duties in accordance with all company policies. The failure to
document the sweep check on the log timely, accurately, and in accordance with the policy,
could open the door to liability, as evidenced by the following case.
In the recent appellate court decision of Newsom-Bogan v. Wendy’s Old Fashioned
Hamburgers of New York, Inc., the plaintiff slipped and fell on a tile floor near a trash receptacle
at the defendant’s restaurant. 43 Prior to her fall, the plaintiff stated that after purchasing her food
at the counter, she sat at a table for twenty minutes watching the area where she would
eventually fall. The plaintiff testified that after her fall, she noticed a greasy substance on her
hands and the floor was so slippery that she had a hard time getting off the ground after her fall.
Defendant’s employees testified that the defendant’s manual stated that the most senior manager
in the restaurant was to walk around the store and check for spills and foreign substances every
fifteen minutes. In addition, if an employee was made aware of, or discovered a spill, they were
to clean it up immediately. In ruling against the store, the court noted that the defendant’s
written policies were sufficient to create a duty to inspect the restaurant every fifteen minutes.
40
241 F.3d 603 (7th Cir. 2001).
Id. at 605.
42
Ellis v. Walmart, Inc., 2012 Ill. App. 2d 110186 (2d Dist. 2012) (unreported).
43
2011 IL App (1st) 092860, 953 N.E.2d 427 (1st Dist. 2011).
41
12
Moreover, since the plaintiff testified that she observed no one inspecting the area around where
she fell for twenty minutes, the defendant may be held liable.
The holding in Newsom-Bogan should serve as a reminder for all retail establishments
that if a written or oral policy is put into place in your establishment, it must be followed. In the
case of Newsom-Bogan, the defendant’s policy that its employees would inspect the floor every
fifteen minutes was enough to create a duty to inspect. The Newsom-Bogan holding should also
make business owners aware that, when creating written policies for inspections or sweeps, it
should not impose unreasonable time frames for performing sweeps upon its employees.
Realistically speaking, performing a sweep of a store every fifteen minutes may not be feasible
for most retailers. Illinois law only requires that a business owner or operator exercise
reasonable care when inspecting for foreign substances on its premises. Reasonableness will
likely differ depending on the nature of the retailer – a small store could likely be inspected on a
more regular basis than a large grocery store. Thus while creating a policy to ensure that regular
sweeps are performed and logging the sweeps is a good practice to protect against liability, the
Newsom-Bogan holding demonstrates that creating a policy for inspections with unrealistic time
frames may be setting the business owner up for failure.
In Reid v. Kohl’s Department Stores, Inc., the plaintiff slipped and fell on a spilled
milkshake at the defendant’s store.44 Kohl’s had in place a routine procedure for inspecting its
premises, and the store’s maintenance crew followed a checklist to ensure that the store was
cleaned on a regular basis. An assistant manager was assigned to double check the work of the
maintenance crew. Additionally, the manager on duty was assigned a two-hour period of time to
continuously walk through the store to inspect the premises for spills and the like, and would
clean up a spill if found, or instruct others to do so. Based on witness testimony, the court
concluded that the milkshake spill was present for less than ten minutes. In granting summary
judgment to Kohl’s, the court stated that “[i]f the storekeeper has an appropriate inspection
procedure and all spills are cleared in a reasonable period of time after they occur, the
storekeeper cannot be held accountable.”45
As evidenced by the Reid decision, a uniform or written inspection program may help
minimize liability, so long as the policy is strictly followed. If the policy is not followed strictly,
the failure to document the sweep or inspection could create a factual question of negligence, and
negate any potential for summary judgment.
Applying Notice Law to Store Procedures and Policies
Given the applicable law above, the question becomes how can a retailer apply this
knowledge on notice to prevent accidents and avoid liability? One way of proving a lack of
notice on the part of the store is by having a written store inspection policy. This written policy
must outline the procedure for the inspection of the store, and it should discuss the following
factors:
44
45
Reid v. Kohl’s Department Stores, Inc., 2007 WL 2778639 (N.D. Ill.).
Id.
13





How the inspection should be performed
The frequency of the inspection
The personnel who is responsible for conducting the inspection
The areas that should be inspected
Instructions for documenting the inspection
A proper store inspection policy, such as the one below, outlines what the inspection
entails, including how to conduct the inspection, when the inspection is to be conducted, and
who is to conduct the inspection.
A Proper Inspection
A proper inspection includes the entire sales area for spills, leaks, debris, broken
products, loose products, and anything else that spoils the floor. Clean it up immediately. Mark
the hazard with a yellow warning sign(s) or orange safety cone(s), if you must leave the area to
retrieve proper equipment or, if possible, rope the area off completely. If you see an unstable
product display, take the time to correct it.
An employee assigned to do an inspection must inspect the following areas:





The entire length of each aisle by physically walking up and down each aisle
In front, behind, and between each check-stand
In front of the customer service desk
The interior and exterior of each entrance and exit
The restrooms
An Improper Inspection includes
 Walking the perimeter of the store and only visually checking the length of each aisle
 Not inspecting the entire sales floor
 Conducting the inspection from behind the customer service desk or other stationary
position
Frequency of Inspection
 Inspections must be done on a regular basis
 During high traffic areas or holiday sales, inspections must be done more frequently
 Areas with refrigerators/freezers, sprayers, or any other apprentice that could cause
water to leak onto the floor must be inspected more frequently
Who should Conduct Inspections
 Approximately 20 inspections should be conducted during normal operating hours
 Inspections should be conducted by the following people:
o 5 inspections should be conducted by the manager in charge during the day
o 5 inspections should be conducted by the manager in charge during the
evening
o 10 inspections should be conducted by a sales clerk or other trained personnel
14
DANGEROUS CONDITIONS
In addition to foreign substances, injuries to retail patrons are often caused by a condition
of the property itself. Examples can include anything from a staircase, to a pothole in a parking
lot, to a defective floor mat. Accordingly, it is important that landowners be on the lookout for
any defective conditions in their buildings, parking lots or other common areas under their
control that could cause injury to their patrons, and take action to either warn their patrons of the
danger or repair or remove the danger from the premises.
A possessor of land is subject to liability for physical harm caused to his patrons by a
condition on the land if the owner:
(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 its customers;
(b)
Should expect that customers will not discover or realize the danger, or will fail to
protect themselves against it; and
(c)
Fails to exercise reasonable care to protect its customers against the danger.46
The rationale behind holding business owners responsible for dangerous conditions on their
premises is that a customer is entitled to expect that the business owner will take reasonable care
to ascertain the actual condition of the premises and, having discovered it, either to make it
reasonably safe by repair, or to give warning of the actual condition and the risk involved
therein.47 Accordingly, a business owner should foresee that customers or entrants could injure
themselves on dangerous conditions, and should take actions to remedy or warn of the
conditions.
There is no set rule as to when a landowner owes a duty to protect its patrons against a
dangerous condition. Rather, each case is determined on a case-by-case basis. As with any
negligence claim, the court will look to the following factors to determine whether the landowner
owes a duty to its patrons to prevent injury:




Whether the risk of injury is reasonably foreseeable;
Whether the there is a likelihood of injury;
The magnitude of the burden of the landowner to guard against the danger; and
The consequences of placing that burden upon the defendant.48
Importantly, foreseeability is determined based on the reasonableness of the landowner’s actions,
not the actions of the entrant.49
46
Restatement (2nd) of Torts, §343 (1965).
Restatement (2nd) of Torts, §343, Comment d, at 217 P (1965).
48
Maschhoff v. National Super Markets, Inc., 230 Ill. App. 3d 169, 595 N.E.2d 665 (5th Dist. 1992).
49
Buerkett v. Illinois Power Company, 384 Ill. App. 3d 418, 893 N.E. 2d 702 (4th Dist. 2008).
47
15
Open and Obvious Doctrine
Illinois follows the “open and obvious doctrine,” which states that owners or occupiers of
land do not owe a duty to its customers 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 obviousness. 50 “Known” means the customer has knowledge of
the condition and an appreciation of the danger it involves. 51 “Obvious” means that the
condition of the risk is apparent to and would be recognized by a reasonable person, in the
position of the customer, exercising ordinary perception, intelligence and judgment. 52 An
understanding of the open and obvious doctrine is helpful in accurately accessing whether
liability may be imposed against a landowner, as it can potentially apply to all cases in which a
plaintiff is injured by a dangerous condition of the property.
The logic behind the open and obvious doctrine is that the law generally assumes that
persons who encounter obvious dangerous conditions will take care to avoid any danger inherent
in such conditions without any warning from the landowner.53 Whether a condition is open and
obvious depends on the objective knowledge of a reasonable person, not the plaintiff's subjective
knowledge.54 Examples of open and obvious conditions as a matter of law are fire, heights and
bodies of water. 55
The open and obvious doctrine was recently analyzed in the Illinois Appellate case of
Ballog v. City of Chicago.56 In this case, the plaintiff brought a claim against the City of
Chicago after she tripped and fell as she stepped from a portion of the street that had been
excavated and refilled with concrete, but not resurfaced. The plaintiff stated that construction
had been ongoing for roughly six (6) months at that intersection prior to her fall, and that the
plaintiff had walked past the construction weekly. The plaintiff testified that on the day of her
fall, she was crossing the street and admiring the construction that had recently been completed
at the intersection when she fell because she did not see the gap in the street. The construction
signs and warnings had recently been removed and were not present on the date of the plaintiff’s
fall. The court held that landowner did not owe a duty to the plaintiff as the condition in the
street was open and obvious as a matter of law, focusing on the fact that the gaps were present on
both corners of the crosswalk at the intersection, were patently visible and plaintiff admitted
having crossed the gap early that day and seeing it.
In True v. Greenwood Manor West, Inc., the appellate court looked to the plaintiff’s
knowledge of the object in question in holding that the condition it was open and obvious.57
There, the plaintiff was a visitor of the defendant’s establishment. As she entered the room, she
observed a fan on the floor near the bed. The plaintiff testified that she observed the fan and
50
Restatement (2nd) of Torts, §343A (1965). See also Ward v. K Mart Corp., 136 Ill. 2d 132, 554 N.E.2d 223 (Ill.
1990).
51
Maschoff v. National Super Markets, Inc., 230 Ill. App. 3d 169, 595 N.E.2d 665 (5th Dist. 1992).
52
Id.
53
Buchaklian v. Lake County Family Young Men's Christian Ass'n, 314 Ill. App. 3d 195, 201, 732 N.E.2d 596, 600 (2d
Dist. 2000).
54
Ballog v. City of Chicago, 2012 IL App (1st) 112429, 980 N.E.2d 690, 695 (1st Dist. 2012).
55
Buchaklian, 314 Ill. App. 3d at 201.
56
Ballog v. City of Chicago, 2012 IL App (1st) 112429, 980 N.E.2d 690 (1st Dist. 2012).
57
True v. Greenwood Manor West, Inc., 316 Ill. App. 3d 676, 737 N.E.2d 673 (4th Dist. 2000).
16
initially walked by it without incident. The plaintiff then turned around, tripped over the fan, and
fell to the floor, injuring herself. The plaintiff admitted that nothing obstructed her view of the
object. She simply did not look down before exiting the room.
The court looked to the plaintiff’s own behavior in holding that the defendant owed no
duty to the plaintiff on the day in question. Specifically, the court noted that the evidence
showed that: (1) the fan was plainly visible; (2) the plaintiff saw the fan as she walked in the
room; (3) the plaintiff walked by the fan without incident; (4) she paused momentarily before
exiting the room; (5) nothing obstructed the plaintiff’s view of the fan; and (6) she simply did not
look down as she turned to leave the room. Because the plaintiff failed to present any evidence
that the plaintiff was required to focus her attention on anything other than walking past the fan,
no duty was owed to her as the condition was open and obvious.
However, courts have carved out several exceptions to the open and obvious doctrine,
including the distraction exception, the forgetfulness exception, and the deliberate encounter
exception. Pursuant to these exceptions, business owners must take into account a variety of
circumstances, such as distractions, and forgetfulness of customers entering and exiting the
premises, despite the obviousness of a particular condition.
Distraction Exception to the Open and Obvious Doctrine
The “distraction or forgetfulness” exception provides that a business owner must take
into account the potential distractions its customer might face when encountering the obvious
dangerous condition. This exception to the general rule is based on the determination of whether
the possessor should reasonably anticipate the harm despite the obviousness of the danger. The
exception typically applies when there is reason to expect that the customer’s attention will be
distracted from the condition because circumstances require that the customer focus their
attention on some other condition or hazard, such as goods on display, or carrying a large bundle
of goods that would obstruct his/her vision, even though he/she has discovered it or had been
warned of the condition.58 Generally, in order for the distraction exception to apply, the
defendant must have created, contributed to, or was responsible in some way for the distraction
which diverted the plaintiff’s attention from the open and obvious condition.59
In Ward v. K Mart Corp., the leading case on the exception in Illinois, a customer
purchased a large mirror at the defendant’s store.60 While carrying the mirror out of the store,
the plaintiff collided with a concrete post in the parking lot. The customer testified that he did
not see the post because of the mirror that he was carrying. The Illinois Supreme Court agreed
with the defendant that the post was not inherently dangerous. The Court, however, went on to
say that, “it was reasonable that a customer carrying a large item which he had purchased in the
store might be distracted and fail to see the post upon exiting the door.” Hence, the defendant
breached its duty by not rectifying the condition or warning its customers of the danger.
58
W. Keeton, Prosser & Keeton on Torts, §61, at 427 (5th ed. 1984), cited in Bangert v. Wal-Mart Stores, Inc., 295 Ill.
App. 3d 418, 422, 695 N.E. 2d 56, 58 (5th Dist. 1998).
59
Lake v. Related Mgmt Co., L.P, 403 Ill. App. 3d 409, 413 (4th Dist. 2010)
60
136 Ill. 2d 132, 554 N.E.2d 2238 (Ill. 1990).
17
In Savage v. Ritchie Bros. Auctioneers (America), Inc., the plaintiff filed a negligence
action against a company that was hosting an auction of commercial equipment when the
plaintiff tripped over a piece of wood cribbing protruding 18 inches from the rear tire of a boom
lift.61 The plaintiff fell and hit his head, right above his left temple, and therefore, suffered a
head injury and is amnesic of the event, having no recollection of anything that happened. A
witness testified that the plaintiff had his hand in his pockets and was not paying attention to the
cribbing because his focus had been drawn away by the display of the boom lift. The court held
that the defendant, as the entity responsible for the layout of its equipment display, “created,
contributed to, or was responsible in some way” for the distraction which diverted the plaintiff’s
attention from the open and obvious wood cribbing. Therefore, because the defendant could
have foreseen that the plaintiff would overlook the cribbing while scanning the auction site and
become injured by tripping over the cribbing, the court denied summary judgment for the
defendant.
Also, in Green v. Jewel Food Stores, Inc., a customer brought a negligence action against
a grocery store after she fell while exiting the store.62 The plaintiff broke her patella after
reaching for a loose shopping cart and tripping on a one-inch ridge in the pavement just outside
the store. The issue in this case was whether the store should have reasonably anticipated that a
shopper would be momentarily distracted from an open an obvious danger – the ridge – by the
sudden motion of an errant cart. The court concluded that it was reasonably foreseeable that a
customer would be distracted and fall over the irregular pavement, and left the questions of
contributory negligence or risk assumption to the jury on remand.
In order for the distraction exception to apply, it must have been foreseeable that the
plaintiff would become distracted, and there must be evidence that the plaintiff actually became
distracted. In Belluomini v. Stratford Green Condominium Assoc., a resident brought a
negligence action against her condominium association for injuries to her left hand when she
tripped and fell over a bicycle that was located in the common area of the building.63 The
plaintiff claimed that she was moving from the hallway to the entryway when she noticed a
child’s bicycle that was chained to the railing of the staircase. As she proceeded toward the exit,
she was looking at the outside door of the building and not the bicycle, and plaintiff fell when
she came into contact with the rear wheel of the bicycle, which was protruding over a foot out
from the railing.
The court held that the defendant did not owe a duty to the plaintiff, as the condition was
open and obvious, and the plaintiff failed to present evidence that she was actually distracted.
Although a former employee of the defendant testified that the plaintiff told her that she was
carrying a garbage bag at the time that could have obstructed her vision, the plaintiff herself
testified that she was not carrying a garbage bag and her vision was not obstructed. Therefore,
there was no evidence that the plaintiff was actually distracted, and the exception did not apply.
The majority view in Illinois is that in order for the distraction exception to apply, a
defendant needs to have created or aggravated the distraction in question. In Lake v. Related
61
Savage v. Ritchie Bros. Auctioneers (America), Inc., 2012 WL 1520710 (N.D. Ill. 2012) (unreported).
63
346 Ill. App. 3d 687, 805 N.E.2d 701 (2d Dist. 2004).
62
18
Management Co., L.P., the plaintiff filed a negligence action against the owners and property
management group for her apartment complex when the heel of her boot got caught in a gap in
the sidewalk in the front entry of her apartment complex and she tripped and fell. 64 She testified
that she had been aware of the defect in the sidewalk for the past three years and had complained
about its existence. At the time of her fall, the plaintiff was carrying two bags of groceries and
claimed that she was distracted and could not see the gap. The court granted the defendant’s
motion for summary judgment, explaining that 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 must not be solely within the plaintiff’s own creation. Here, the fact that the plaintiff
was carrying groceries was a distraction exclusively of her own creation. The defendant could
not be held liable for the plaintiff’s choice when it cannot be said that the defendant “created,
contributed to, or [was] responsible in some way for the distraction which diverted the plaintiff’s
attention from the open and obvious condition.”65
Similarly, in the 2011 case of Garcia v. Young, the plaintiff was living in a rental
property owned by the defendant.66 The rental property was located on a private drive, which
was also owned by the defendant. The plaintiff had informed the defendant, prior to the
accident, that the private drive was in a state of disrepair, contained numerous potholes, and
constituted a hazard. The plaintiff was injured when he fell in a pothole after entering the private
drive in an attempt to save his family member from an approaching vehicle. The Appellate
Court held that the distraction exception to the open and obvious doctrine did not apply and thus
the defendant owed no duty to the plaintiff. In so holding, the Court held that the pothole was
open and obvious, and the defendant was in no way responsible for the distraction – the
plaintiff’s family member in the path of the approaching vehicle – and therefore the exception
did not apply.67
Further, in Hope v. Hope, the Illinois Appellate Court also found the distraction exception
was not applicable because the defendant could not have foreseen the plaintiff’s distraction.68
There, the adult daughter of the defendant brought a premises liability action against her parents
when she slipped and fell on some mud that had accumulated on the porch steps to her parents’
house. The daughter had been warned by both her mother and father about the mud on the steps;
however, the parents failed to remove the mud. The plaintiff then fell as she descended the steps
and claimed that she was distracted because she had been eating, studying, watching television
and sleeping between the time of the warnings and the time that she slipped and fell.
The court granted summary judgment to the parents, holding that the “distraction
exception” did not apply to the open and obvious doctrine in this case. Of significance, the issue
to the court was not whether the plaintiff was distracted at the time of the fall, but whether a
defendant would have reason to expect that the plaintiff would be distracted. The court held that
the defendants could not have reasonably foreseen that eating, studying, watching television and
sleeping would create a distraction leading to the plaintiff’s injury. If such mundane activities,
64
Lake, 403 Ill. App. 3d 409.
Id. at 413.
66
Garcia v. Young, 408 Ill. App. 3d 614 (4th Dist. 2011).
67
Id. at 619.
68
Hope v. Hope, 398 Ill. App. 3d 216 (4th Dist. 2010)
65
19
undertaken at a different location than the place of the injury were sufficient to invoke the
“distraction exception,” then the exception would swallow the rule.
Recently, the Illinois Supreme Court further solidified landowners’ and retailers’
defenses against cases in which the plaintiff asserts the distraction exception in the case of Bruns
v. City of Centralia.69 There, the plaintiff was an elderly patient of an eye clinic who sustained
injury after tripping over a raised section of a public sidewalk as she was entering the clinic.
Plaintiff testified that she had seen the defective sidewalk multiple times, but was not looking
down at the sidewalk as she was entering; rather she was looking toward the Clinic door and
steps where she was intending to enter. Because her attention was fixed on the Clinic's entrance,
she did not notice the crack in the sidewalk. The defendant City had been previously put on
notice of the defect sidewalk, and had chosen not to repair it.
The appellate court held that it was reasonable to foresee that an elderly patron of an eye
clinic might have his or her attention focused on the pathway forward to the door and steps of the
clinic as opposed to the path immediately underfoot, even though the patron may have
previously noticed the defect and have knowledge of it. The court reiterated that the focus is on
the foreseeability of the injury, and all that is required is the defendant's awareness that those in
proximity to the open and obvious hazard are likely to become distracted in some way and forget
about the presence of the hazard.70 This decision went against the majority view of the appellate
courts in Illinois, which held that a defendant must either create or aggravate the condition that
caused the plaintiff to become distracted, and would have seemingly opened the floodgates for
plaintiffs to claim anything as a valid distraction.
The Supreme Court reversed, however, stating that in order for the distraction exception
to apply, the evidence must establish that the plaintiff was actually distracted, and the mere fact
of looking elsewhere does not constitute a valid distraction. The Court stated that the two types
of cases in which the Supreme Court has held the distraction exception to apply are when (1) the
plaintiff was required to divert his/her attention elsewhere in order to avoid another potential
hazard, or (2) the plaintiff failed to notice the defect because some other task at hand required
his/her attention. The court reasoned that if simply looking elsewhere were sufficient to
constitute a legal distraction, then the open and obvious rule would be upended and the
distraction exception would swallow the rule.
The Courts’ rulings in Lake, Garcia, Hope and Bruns have helped solidify landowners’
and retailers’ defenses against cases in which the plaintiff asserts the distraction exception for
situations that are of the plaintiff’s own creation or that the defendant did not create or aggravate.
For example, a patron is shopping in a store on the day of a large storm. She becomes distracted
by the lightning she sees out the window. While watching the lightning light up the sky, she
trips and falls over the display that was in place at the end of the store’s aisle. The plaintiff then
brings a claim for her injuries, arguing that the open and obvious nature of the display is
overcome because she was distracted by the lightning. Based on these holdings, the store could
not be found liable for the plaintiff’s injuries because the store did not create or aggravate the
lightning, nor could it have foreseen the plaintiff would become distracted by this lightning and
69
70
2014 IL 116998, 2014 WL 4638864 (Ill. Sept. 18, 2014).
Id. at 325-326.
20
trip and fall. These holdings are, therefore, important in that they continue to preserve the
integrity of the open and obvious doctrine as a viable defense available to landowners and
retailers.
Deliberate Encounter Exception to Open and Obvious Doctrine
Many states, including Illinois, have also accepted the “deliberate encounter exception”
to the general rule that business owners owe no duty to protect their entrants from open and
obvious dangers.71 According to the deliberate encounter exception, the risk of injury may be
reasonably foreseeable when the landowner has reason to expect that the entrant will proceed to
encounter the known or obvious danger because, to a reasonable person in his/her position, the
advantages of doing so would outweigh the apparent risk.72 This exception typically applies in
cases where the dangerous condition is located in an area that the customer is forced to encounter
in order to access the premises.
A basic analysis of the deliberate encounter exception was undertaken in the case of
Hastings v. Exline.73 In that case, the plaintiff slipped and fell down stairs leading to the back
door of the defendant’s property. While it was acknowledged that the stairs were open and
obvious, evidence was presented indicating that there were two entrances to the premises: a front
door and a back door. However, the back door was more convenient because cars were parked
towards the rear of the property.
The court declined to extend the deliberate encounter
exception because an alternative, safer route was available, via the front door. The court noted
that the outcome might have been different had the front door been locked, or if evidence was
presented establishing that the front door presented an equal or worse peril.
The deliberate encounter exception is typically applied in cases involving economic
compulsion, i.e. where workers are compelled to encounter dangerous conditions as part of their
employment. For example, in Morrisey v. Arlington Park Racecourse, the plaintiff was injured
when the horse he was riding slipped and fell on wet asphalt.74 The plaintiff, a horse trainer,
brought suit against the Racecourse, alleging that the Racecourse was negligent in allowing
water and soap that was created when horses were washed off, to accumulate around an asphalt
exit path. The plaintiff was riding his horse along this asphalt exit path when the horse allegedly
slipped on the runoff water and fell on top of the plaintiff.
The defendant Racecourse moved for summary judgment on the grounds that the water
on the asphalt was an open and obvious condition. In response, the plaintiff conceded that the
slippery and wet asphalt was an open and obvious condition, but contended that the deliberate
exception rule applied to impose a duty of care upon the Racecourse. The court undertook a
detailed analysis of the requirements for the deliberate encounter exception. The court first
noted that the exception applied when the landowner had reason to expect that the invitee will
proceed to encounter the known or obvious danger because, to a reasonable person in his
position, the advantages of doing so outweigh the apparent risk.75 The Racecourse argued that
71
Hastings v. Exline, 326 Ill. App. 3d 172, 760 N.E.2d 993 (4th Dist. 2001).
Id.
73
Id.
74
Morrisey v. Arlington Park Racecourse, 404 Ill. App. 3d 711 (6th Dist. 2011).
75
Restatement (Second) of Torts §343A.
72
21
there were two other exits from the racetrack the plaintiff could have chosen to use, and the
deliberate encounter exception should only apply in situations where no reasonable alternative is
provided.
The court rejected plaintiff’s argument, finding that the evidence raised an issue of
material fact as to whether or not the Racecourse could have anticipated that the plaintiff would
deliberately encounter the slippery asphalt in the course of his employment as a horse trainer.
The court based its decision on the facts that the exit used by the plaintiff was much closer to the
track than other exits, time was of the essence to the plaintiff to train numerous horses that day,
and a fellow trainer testified that no one used the other exits from the track as they took much
longer to get to.76
As the Morrisey and Burnam cases demonstrate, while the open and obvious defense
remains an effective tool to defeat a slip-and-fall claim, employers and store owners must be
aware of the benefits of offering multiple entrances and exits that are all easily accessible to their
properties. Such a tactic would avoid possible arguments that the property owner could
reasonably foresee that a plaintiff would deliberately encounter a potentially dangerous condition
because alternative, less dangerous options were available. In addition, in the event that only a
single entrance or exit is practical, then a property owner must take additional care in ensuring
that it is safely and reasonably maintained.
The deliberate encounter exception was also analyzed in the employment context in the
case of Grillo v. Yeager Construction, where the plaintiff bricklayer brought suit against a
construction company for negligence following a fall from scaffolding on a construction site. 77
The plaintiff claimed that the construction site was not properly “backfilled” around the
foundation, and two legs of his scaffolding were placed on cinder blocks to make the scaffolding
even because of holes and trenches in the area. These cinder blocks were unstable, and,
according to the plaintiff, caused the scaffolding to tip and fall. The defendant argued that the
holes and trenches on the construction site were open and obvious. The plaintiff responded that
the deliberate encounter exception applied, and the court agreed. The court stated that the focus
of the deliberate encounter analysis is what the possessor of land anticipates or should anticipate
the entrant will do.78 The plaintiff testified that he told the general contractor every day since the
job began that backfilling needed to be done, and his pleas were ignored. The plaintiff also
testified that the cinder blocks were used because of the open holes on the site. The plaintiff
knew that this created a dangerous condition, but due to pressure to complete his work, he used
the scaffolding anyway. The court found that the defendant had reason to expect that the
plaintiff would continue working despite the condition of the scaffolding, in order to finish his
work on time.
While the above cases note specific instances in which the deliberate encounter exception
has prevented the application of the open and obvious doctrine, courts decline to apply the
exception when employees disregard their training and safety procedures. In Swearingen v.
Momentive Specialty Chemicals, Inc., the plaintiff brought a negligence action against a
76
Sollami v. Eaton, 201 Ill.2d 1 (Ill. 2002).
78
Grillo v. Yeager Construction, 387 Ill. App. 3d 577, 900 N.E.2d 1249 (1st Dist. 2008).
77
22
defendant facility owner when the plaintiff was opening the dome lid to his chemicals truck at
the unloading bay of the defendant’s facility, when he stood up, hit his head on the piping and
fell off the truck onto the floor below.79 The defendant moved for summary judgment on the
grounds that it did not owe the plaintiff a duty because the plaintiff admittedly recognized the
open and obvious nature of the hazard presented by the piping above. The plaintiff responded
that the deliberate encounter exception applied, arguing that the defendant should have
reasonably foreseen that the plaintiff would encounter the hazard presented by the low piping,
warned him accordingly, and provided him with a fall-protection harness.
In ruling that the deliberate encounter exception did not apply, the Seventh Circuit found
that there was no evidence that the defendant had any reason to anticipate that the plaintiff would
attempted to open the lid by positioning himself on top of the truck, as this was not how the
plaintiff was trained to open the lid. The court also noted that the plaintiff ignored his training by
climbing the truck in order to open the lid. The court placed a special significance on the fact
that the plaintiff ignored his training, and the defendant could not reasonably foresee that the
plaintiff would do so. Consequently, the court held that placing the burden on the defendant to
provide fall protection for all non-employees was unjustified.
Open and Obvious – Expert Opinions
Notably, the open and obvious doctrine was recently rejected in Alqadhi v. Standard
Parking, Inc. 80 In that case, the plaintiff brought a claim against the defendant parking garage
owners after tripping and falling on a raised slab of concrete located on the wheelchair accessible
ramp near the exit of the parking garage. The plaintiff’s complaint alleged that the defendant
failed to mark the ¾ inch rise in concrete. Moreover, the plaintiff provided expert testimony
regarding the fact that the condition was not open and obvious. The defendants contended that
the plaintiff could appreciate and avoid the risk because the area was well lit, the pavement was
smooth and free from defects and the curb was visible and open and obvious. The court agreed
with the plaintiff and held that the condition may not have been open and obvious, placing
special focus on the plaintiff’s expert’s opinions that the lack of contrast paint on the raised
concrete “disguised” the change in vertical elevation between the parking lot and the curb,
creating an impermissible tripping hazard that was “not obvious.”
The Court’s holding in Alqadhi is important because it could signal a shift in a
defendant’s ability to obtain summary judgment in cases involving the open and obvious
doctrine. In Alqadhi, it appeared that the Appellate Court was heavily influenced by the
plaintiff’s expert’s opinions regarding the open and obvious nature of the condition. Therefore,
Alqadhi may indicate that, in the future, a plaintiff may be able to overcome a motion for
summary judgment based on the open and obvious doctrine by presenting an expert’s testimony
in order to create a question of fact.
79
80
Swearingen v. Momentive Specialty Chems., Inc., 662 F.3d 969 (7th Cir. 2011).
Alqadhi v. Standard Parking, Inc, 405 Ill. App. 3d 14 (1st Dist. 2010)
23
Open and Obvious – Children
The open and obvious defense can be applied differently in a situation where the injured
plaintiff is a child. In Illinois, a child’s injury by fire, water, and falling from heights are
considered open and obvious dangers, appreciable by very young children, as a matter of law. 81
Illinois Courts have acknowledged that this is not an exclusive list, but rather there are many
dangers which under ordinary conditions may reasonably be expected to be fully understood and
appreciated by a child, including but not limited to a moving freight train,82 and an electrical
power line.83 The issue in cases involving obvious dangers, like fire, water or height, is not
whether the child does in fact understand, but rather what the landowner may reasonably expect
of a child. The test is an objective one, grounded partially in the notion that where a child is
permitted to be at large, beyond the watchful eye of his parent, it is reasonable to expect that that
child can appreciate certain particular dangers.84
In a recent case of first impression regarding whether a piece of home exercise equipment
poses an open and obvious danger to a child, the First District Appellate Court of Illinois in the
case of Qureshi v. Ahmed held that the homeowners owed a duty to the child with respect to a
treadmill, even if the dangers of a treadmill are open and obvious to adults.85 This situation can
also be applied to retail stores, as the Qureshi court noted by citing a decision in Georgia case of
Young v. Wal-Mart Stores, Inc.86 In Young v. Wal-Mart Stores, Inc., an eight year old was
injured when she fell after stepping off a treadmill displayed in the store. The court ruled that the
observation of a treadmill, by itself, would not lead one to assume an injury to a child would
occur.87 The Georgia court granted summary judgment for the defendant, finding that there was
no evidence that the treadmill was a dangerous instrumentality, or that it exposed the child to an
unreasonable risk of harm, and that the store had no actual knowledge of any danger associated
with the treadmill.
The Quereshi court held that the evidence suggested the defendants, by their precautions
in regards to the treadmill, believed injuries to children were likely and that children would not
appreciate and avoid the risk. The defendants cited Sollami v. Eaton, for the proposition that
once the risk is determined to be open and obvious, it is reasonable for the landowner to assume
that the risk will be appreciated and avoided.88 The Querishi court agreed with this proposition,
but distinguished Sollami, because the plaintiff in Sollami was a teenager, as opposed to a 10
year old, and because there was evidence the defendants in Quereshi did not assume that children
would appreciate and avoid the risk.89
There does not appear from Illinois case law to be a test used for determining the
obviousness of a risk. Illinois courts have stated at various times that whether a condition
presents an open and obvious danger is a question of fact. However, it is also treated as part of
81
Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 660 N.E.2d 863 (1995)
Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948, 980 N.E.2d 58, 66 (2012).
83
Booth v. Goodyear Tire & Rubber Co., 224 Ill.App.3d 720, 724 (3rd Dist 1992)
84
Choate, 980 N.E.2d at 66.
85
86
Young v. Wal-Mart Stores, Inc., 209 Ga. App. 199, 433 S.E.2d 121 (1993).
87
Id. at 201.
88
Sollami v. Eaton, 201 Ill.2d 1, 772 N.E.2d 215 (2002)
89
Qureshi, 916 N.E.2d at 1160.
82
24
the duty analysis and thus a question of law. Under either analysis, it seems to be a factintensive inquiry examining the use of the instrument by a reasonable person.90 Illinois case law
holds that the main issue to determine for landowners in whether something is an obvious danger
to a child, is not whether the child does in fact understand the danger, but rather what the
landowner may reasonably expect.91 An injured child’s subjective knowledge about treadmills,
or any other piece of equipment in a store, would only be relevant to allegations of contributory
negligence.
The ability of children to appreciate the danger is not the only issue in determining
whether a duty exists. To determine whether the landowner owes a duty to a child injured on its
premises, a court must also find that: (1) a dangerous condition exists on the property; (2) it is
reasonably foreseeable that children would be present on the premises; and (3) the risk of harm
to children outweighs the burden of removing the danger.92 A dangerous condition to a child is
one that is likely to cause injury to a general class of children who, by reason of their immaturity,
might be incapable of appreciating the risk of what they are doing. 93 A landowner is free to
assume that if a child is allowed by his parents to roam by himself, that child should be able to
make his own intelligent and responsible choices.94
The open and obvious exception with respect to young children was also examined in
Grant v. South Roxana Dad’s Club.95 In that case, an eight year old suffered a badly broken arm
after falling off his bicycle while riding it up a four-foot high dirt pile in an attempt to become
airborne. His mother filed suit on his behalf against the defendant, a nonprofit organization who
ran the playground where the accident occurred, alleging that it left the dirt pile where it knew or
should have known that children were playing and in failing to warn the children of the danger.
The defendant argued that the dirt pile was an open and obvious danger and that the child was
mature enough to appreciate the risk posed by ramping his bicycle on the dirt pile.
The appellate court recognized that when a child is injured it may be foreseeable that the
child, due to immaturity, will not fully appreciate the risk involved in encountering what, to an
adult, is an open and obvious danger. It articulated the test as being whether a typical child who
is old enough to be at large would lack the maturity to understand and appreciate the risk
involved, therefore making it foreseeable that a typical child might be injured. The defendant’s
park commissioner even testified that he told children, including the plaintiff, not to ride their
bicycles over the dirt pile because they could get hurt. The commissioner further testified that he
thought this warning would go unheeded by the plaintiff and that he would be back to do it
again. Based in part on this testimony, the court held that it was foreseeable to the defendant that
the plaintiff did not appreciate the risk involved in the subject activity, and would not avoid such
risk. Additionally, the court stated that the expense of remedying the duty by spreading the dirt
out evenly was slight. Therefore, the defendant owed the child a duty of reasonable care.
90
Id. at 1158.
92
93
Id. at 1156.
94
Id.
95
91
25
What to take from the Open & Obvious Cases:
In light of these cases, it is important for a retail establishment to be aware of any risks
that could be characterized as an open and obvious danger, and take the necessary steps to
remedy, or warn against, the condition. These cases indicate that a retail establishment could be
subjecting itself to liability if it reasonably anticipates a customer to encounter the risk, despite
its supposed obviousness. Moreover, while it is not always clear what risks would be considered
open and obvious to children, it is a good idea for a retail establishment to be aware of its
clientele and the particular products that may draw the attention of children. If the retail
establishment feels that a mere warning of the risk would go unappreciated by children, the store
may need to take more drastic measures in order to minimize the risk to avoid liability, such as
prohibiting children’s access to the area where the hazard is present.
In addition, it is clear that the open and obvious defense remains an effective tool to
defeat a trip-and-fall claim that occurs on a landowner’s property. However, to help ensure this
defense is successful, it is important to elicit evidence during the investigation of the claim and
during the discovery phase of litigation which directly addresses the two exceptions to the open
and obvious doctrine; the distraction exception and the deliberate encounter exception. For
example, during its investigation of an incident, a store owner should inquire as to why the
plaintiff did not see the dangerous condition, so as to elicit a response that could indicate whether
they were distracted. Asking these additional questions will further aid the court when ruling on
a summary judgment motion that is based on the open and obvious doctrine – ultimately
increasing a landowners’ or retailers’ chance of avoiding liability.
Common Dangerous Conditions
Below are case examples dealing with common dangerous conditions in retail
establishments. These case examples help illustrate the courts’ analysis of the liability imposed
by dangerous conditions and can be applied to analyze factually comparable cases.
Shelves
A store owner owes a duty to its customers to exercise ordinary care to keep the shelves,
display racks, counters, and the like on the store premises in a reasonably safe condition so as not
to expose the customers to hazardous conditions such as sharp edges or falling merchandise.96
For example, in Pullia v. Builders Square, Inc., the hardware store displayed fence posts
on a rack anchored to the wall.97 The defendant neither placed warning signs near the rack
system, nor did it place signs prohibiting customers from serving themselves. The plaintiff, who
was six feet and two inches tall, was unable to reach the fence posts, and stepped up onto the
lowest arm of the rack. After grabbing the fence post, the customer began to step off the rack,
when his wedding ring caught on the shelves face-plate, completely severing his finger from the
knuckle. The appellate court held that it was reasonably foreseeable that a metal rack with
96
97
26
protruding metal parts could catch clothing or jewelry and cause injury. The court also analyzed
the facts of the case with an eye toward public policy issues. Specifically, the court noted that:
As a matter of public policy, self-service merchandisers should
display their wares so that customers may procure them safely
without assistance or provide more readily available assistance or
warn of the danger.98
In other words, the store should ensure that all pallets and shelves are stacked so that customers
can safely remove items.
Similarly, a store owner may be found negligent if it displays goods in such a manner that
they are likely to cause a hazardous condition.99 On the other hand, the stacking of products in an
unsafe manner may not give rise to liability where it is not shown that the store owner had failed
to act as a reasonably prudent person would have acted in similar circumstances, or that such
stacking was the proximate cause of the injury.100
For example, in Staten v. Pamida, Inc., the court held that goods falling from shelves
could be a potentially dangerous condition.101 In that case, a customer filed suit after sustaining
injuries in the defendant’s paint store. The defendant had stacked paint cans on shelves. The
plaintiff attempted to grab a can near the top of the shelf, lost her footing, and slipped. At the
same time, a gallon of paint fell from the shelf and struck the plaintiff’s foot. The court,
however, held that it was up to the jury to determine whether the store display was a dangerous
condition.
However, a store owner may not be held liable for injuries sustained by a customer from
display racks or shelves where the danger posed by such instrumentalities is open and obvious.102
Similarly, a store owner is generally under no duty to foresee that his or her invitees will use
store instrumentalities, such as display racks or shelves, in a manner in which the invitation is not
extended, and the store owner may not be held liable for injuries resulting from the use of such
store instrumentalities which is not foreseeable.103
Floors, Carpeting and Floor Mats
A business owner can be held liable for dangerous conditions involving the floor.
However, if slipping and falling occurs on the “natural floor,” such as polished wood, tile, or
terrazzo, there is generally no liability to the retailer because negligence cannot be based on
having floors of common acceptance and design.104 In Kotarba v. Jamrozik, the plaintiff filed
suit against the landlord for injuries sustained in a fall months after the defendant had varnished
98
Pullia v. Builders Square, Inc., 265 Ill. App. 3d 933, 939, 638 N.E.2d 688, 694, (1st Dist. 1994).
100
Id.
101
102
103
Id.
104
Robinson v. Southwestern Bell Telephone and Co., 26 Ill. App. 2d 139, 167 N.E.2d 793 (4th Dist. 1960).
99
27
the flooring.105 The court held that although the defendant had a duty in varnishing the floor so
as to not create a dangerous condition, the mere allegation that the floor was slippery is
insufficient in order to impose a duty upon the defendant. The Plaintiff must show that a specific
defect existed with the floor, or that the product used to clean the floor created a dangerous
condition.
Similarly, carpet can become a dangerous condition if it is not installed or maintained
properly. In Grothen v. Marshall Field & Co., the defendant was held to have breached a duty to
the plaintiff, when she sustained injuries when she tripped over an exposed piece of metal
stripping used to hold down carpeting.106
With respect to a business’ use of floor mats, Illinois law holds that use of such mats is
perfectly reasonable, and the fact that a person trips on one of them is not evidence of
negligence.107 Rather, before liability can be imposed, the plaintiff must present evidence that
his/her fall was proximately caused by a defective condition in the mat, or the defendant’s
negligent installation or placement of the mat.108
For example, in Robinson v. Southwestern Bell Tel. Co, the plaintiff alleged that, as she
was walking down a step, a part of the mat on the floor caught or gripped her heel, which caused
her to fall.109 The plaintiff in Robinson alleged that the cause of her fall was due to the
maintenance by the defendant of an unsafe and dangerous rubber mat on the floor. The plaintiff
could not provide any other testimony as to the cause of her fall, and there was no other witness
to the occurrence.
The court held that since the evidence failed to show any damaged or defective condition
of the mat, there was no duty by the defendant, as it could not hold the defendant to be an insurer
that guarantees its patrons’ safety. The court pointed out that the defendant had installed the mat
for the purpose of safety and that mats were widely used for this purpose; that even though
thousands of people tread them safely, it is always possible for someone to trip on almost
anything, no matter how common its use. The court in Robinson went on to add that the use of
mats to assist pedestrians is perfectly reasonable, and negligence cannot be assumed just because
someone trips on a mat.
In order for a defendant to be liable based on a defective mat, the defect must have been
the proximate cause of the plaintiff’s injury. In Brett v. F.W. Woolworth, Co., the plaintiff, a 71
year old woman, tripped and fell on a rug when entering the department store.110 The plaintiff
testified that her foot caught in the rug; however, she admitted she did not know what there was
about the rug that caused her to fall. The only evidence that a defect existed in the rug was that
of an investigator, who stated that he inspected the rug two weeks after the occurrence and found
105
107
Caburnay v. Norwegian Am. Hosp., 2011 IL App (1st) 101740, 963 N.E.2d 1021, 1031-32 (1st Dist. 2011),
108
Id.
109
26 Ill. App. 2d 139, 140-142 (4th Dist. 1960).
110
Id. at 335.
106
28
a depression. There was no evidence introduced that showed a depression existed at the time of
the fall.111 There were also no witnesses to the plaintiff’s fall.
The court held the plaintiff must prove that the depression actually existed and was
unreasonably dangerous at the time of the fall, in addition to proving that the depression was the
proximate cause of her injury.112 The court in Brett went on to hold that since the plaintiff
presented no evidence that the depression in the mat caused her fall, plaintiff’s argument that the
depression could have caused her fall was pure speculation, unsupported by any evidence, and
thus summary judgment was appropriate for the defendant.113
Stairs and Escalators
The risks associated with stairs and escalators, themselves, are generally considered open
and obvious to which no warning is needed. For example, in Auguste v. Montgomery Ward and
Co., the plaintiff tripped on an escalator that had been turned off. The appellate court held that
stairs and escalators, by their very nature, create a risk that persons using them might fall;
however, this risk does not make the condition a dangerous one.114 Rather, stairs only become
dangerous when the defendant, in the exercise of reasonable care, should anticipate that its
customers would fail to see them or that there is a defect in the stairs that could cause a customer
to fall.
In Glass v. Morgan Guaranty Trust Co., a customer filed suit against the owner of a
shopping center alleging that the defendant permitted a “defective stair system,” to exist without
adequate warnings of the condition.115 Specifically, the plaintiff alleged that the handrails were
too wide for her to grasp and, as such, were unreasonably dangerous for people descending the
stairs while holding food. The court held in favor of the defendant, refusing to impose a duty to
make stairs safe for people who are holding objects instead of using the handrails.
As with any negligence claim, a dangerous condition in the stair must have been the
proximate cause of the plaintiff’s injury in order for liability to be imposed. For example, in
Bellerive v. Hilton Hotels Corp., the plaintiff tripped on stairs that she claims were “uneven.”116
The court held that while worn marble steps forming an uneven surface could form the basis for
liability in negligence, the defendant was not liable because the plaintiff did not provide the court
with competent facts that the condition of the stairs actually caused her to fall.
In negligence actions involving alleged unsafe conditions of a structure or building, such
as a staircase, violations of an ordinance or a failure to comply with the building code,
establishes liability against the landowner if the violation was the proximate cause of the
plaintiff’s injury.117 Accordingly, in cases that involve injuries that resulted from a fall down
stairs, expert testimony can be determinative of whether liability is imposed.
111
Id.
Id. at 337.
113
Id.
114
115
116
117
Kalata v. Anheuser-Busch Companies, Inc., 144 Ill. 2d 425, 434, 581 N.E.2d 656, 661 (1991)
112
29
For example, in Strutz v. Vicere, while the plaintiff presented expert testimony that the
stairwell that he fell on violated the applicable building code, the plaintiff failed to show that a
defect in stairs was the proximate cause of his fall.118 The plaintiff died several weeks after the
fall from his injuries, and thus was unable to testify as to what exactly caused his fall. The
plaintiff’s expert testified that the stairwell was dangerous and that it violated the building code,
but could not testify as to what caused the decedent’s fall. The appellate court held that an
ordinance violation, or a failure to comply with the building code, without evidence that the
violation caused the injury, does not, on its own, establish negligence. The court reasoned that
there must be a link that shows the dangerous condition caused the fall, and the mere possibility
of such a link is insufficient to create the necessary causal relationship.
In Van Gelderen v. Hokin, the plaintiff was injured after he fell down a flight of stairs at
the defendant’s home.119 The stairwell at issue was located directly adjacent to the side door of
the home. While stepping aside to avoid the opening door, the plaintiff lost his balance and fell
down the stairwell. The plaintiff filed suit, alleging that the location of the stairs in relation to
the door constituted an unreasonably dangerous condition that the defendant should have known
about and protected against. Moreover, the plaintiff presented expert testimony that the location
of the stairwell next to the side door created an unreasonably dangerous condition.
In affirming a jury verdict in favor of the plaintiff, the appellate court noted the
importance of the expert testimony offered by the plaintiff, suggesting that the stairs at issue
were more dangerous than other stairs. The court found the existence of such expert testimony
to be the distinguishing factor between the present case and its previous decisions. The court held
that a jury could have reasonably concluded from the expert’s testimony that the placement of
the stairs constituted an unreasonably dangerous condition. Therefore, it is important to note that
it may be possible for a plaintiff to prevail on a negligence claim related to dangerous conditions
that seemingly are open and obvious by presenting expert testimony finding that a particular
condition is unreasonably dangerous.
Parking Lots
A landowner’s duty to exercise reasonable care in keeping their property safe for its
entrants includes conditions and dangers associated with parking lots, walkways, and sidewalks
of the business’ property, so long as the landowner actually owned, maintained, or controlled the
subject area.120 However, as with any dangerous condition, if a duty was owed, the court must
also analyze whether the condition was open and obvious.
Generally, landowners have a duty to exercise reasonable care in maintaining their
parking lots, which can include ensuring that there are no defects in the pavement, marking the
surface of the lot to control traffic, installing stop signs, speed limit signs, and cross walks, for
118
Van Gelderen v. Hokin, 958 N.E.2d 1029 (1st Dist. 2011).
120
Bangert v. Wal-Mart Stores, Inc., 295 Ill. App. 3d 418, 695 N.E.2d 56 (5th Dist. 1998).
119
30
the protection of customers.121 Liability will not be imposed, however, where harm is not caused
by a physical defect in the property, but was instead a result of an independent factor.122
In Bangert v. Wal-Mart Stores, Inc., a customer filed suit against the department store for
injuries sustained when she was struck by a vehicle while walking through the parking lot.123
Although the parking lot had markings that outlined where vehicles were to park, it was not
equipped with any stop signs, crosswalks, or other traffic or pedestrian-control devices. The
court held that it was foreseeable that a customer would be distracted by packages, children, or
traffic, and could be injured as a result of such distraction. In addition, the court noted that the
consequences of placing the burden on the store to install stop signs, yield signs, or crosswalks
were not great. As such, the court held that the retail establishment had a duty to install such
devices in its parking lot for the protection of customers. However, whether the driver’s
negligence was the superseding intervening cause of the injury was a question for the jury to
decide.
In Tarulis v. Prassas, the defendant-driver lost control of her car in the shopping center’s
parking lot, and struck the driver’s side of the plaintiff’s vehicle. The plaintiff was exiting his car
at the time of the incident.124 Evidence was presented that the driver hit a “wheel stop” and then
lost control of her car. The plaintiff alleged that, given the slope and markings of the driveway
and the “wheel stop’s” placement and coloring, the shopping center should have made the
“wheel stop” more visible. The court held that the inferences drawn by the plaintiff that the
driver lost control of her car because of the “wheel stop” were speculative, and judgment in favor
the defendant was warranted.
While a landowner can be held liable for defects in parking lots, the plaintiff is required
to establish that the specific defect at issue actually caused the injuries. For example, in Majetich
v. P.T. Ferro Construction Company, an executor of a store patron’s estate filed suit against a
commercial strip mall owner and construction company after the patron sustained injuries, and
later died, after falling in the mall’s parking lot.125 The plaintiff claimed that the defendants were
negligent in the replacement of parking lot pavement. More specifically, the parking lot of the
plaza was under construction and the old pavement had been removed. The lot had not yet been
repaved and there was allegedly a one-to-two foot step from the parking lot to the sidewalk in the
front of the store. The patron approached the store, and tripped and fell, sustaining head injuries
leading to her death. However, because nobody actually saw the patron fall, the plaintiff could
not prove that the height differential or any defect in the parking lot caused the decedent to fall.
The defendants presented evidence that the decedent had Alzheimer’s disease and other
significant medical problems that could have caused her to fall. Therefore, summary judgment
in favor of the defendants was appropriate.126
121
Romano v. Bittner, 157 Ill. App. 3d 15, 510 N.E.2d 924 (2d Dist. 1987); Bangert v. Wal-Mart Stores, Inc., 295 Ill.
App. 3d 418, 695 N.E.2d 56 (5th Dist. 1998).
122
See Hanks v. Mount Prospect Park District, 244 Ill. App. 3d 212, 614 N.E.2d 135 (1st Dist. 1993).
123
124
Tarulis v. Prassas, 236 Ill. App. 3d 56, 603 N.E.2d 13 (1st Dist. 1992).
125
Majetich v. P.T. Ferro Construction Company, 389 Ill. App. 3d 220, 906 N.E.2d 713 (3rd Dist 2009).
126
Id.
31
Sidewalks
Landowners have a duty to provide a safe means of ingress and egress to and from their
property.127 This duty includes keeping sidewalks that lead to and from the business
establishment in a reasonably safe condition. This rule holds true especially when the landowner
operates a business and directs the public to the entrance of the establishment. This duty may
also sometimes extend beyond the boundaries of the premises, depending upon the factual
circumstances of each case.128
Generally, a landowner is not liable for personal injuries incurred on a public sidewalk
abutting the property where the sidewalk is under the control of a municipality.129 However, a
business owner can be liable for injuries caused by a defective city-owned sidewalk if it: (1)
created the condition; or (2) appropriated the sidewalk for its own personal benefit.130 In
determining whether the owner “appropriated” the sidewalk, courts generally take into account
the following factors:



Whether the defendant prevented the general public from using the walkway;
Whether the defendant obstructed the walkway; or
Whether the defendant conducted business on the walkway.131
For example, in Cooley v. Makse, the plaintiff was injured in a fall on a defective cityowned sidewalk near the defendant’s establishment.132 The path ran from the sidewalk along the
street to the front entrance of the building. The only purpose of the path was to provide ingress
and egress to the defendant’s establishment. Moreover, while the defendant did not cause the
condition in the sidewalk, it knew of the defect. The court held that the defendant had a duty to
use reasonable care in maintaining its entrances and exits. Specifically, the court outlined the
duty as follows:
Having prescribed the route to their invitees for ingress and egress
to and from their building, it was their duty to properly illuminate,
give adequate warning of, or cause to repair a known, dangerous
condition.133
Similarly, in McDonald v. Frontier Lanes, Inc., the plaintiff was injured when she
stepped into a hole in a walkway owned by a municipality. 134 The path was located adjacent to a
public sidewalk across from the parking lot maintained by the business for its customers. The
court held that the defendant assumed control over the path and used it for parking, thereby
blocking the sidewalk and preventing its normal use. Consequently, the landowner had a duty to
insure that the sidewalk was in a reasonably safe condition.
127
Harris v. Old Kent Bank, 315 Ill. App. 3d 894, 735 N.E.2d 758 (2d Dist. 2000).
Burke v. Grillo, 227 Ill. App. 3d 9, 590 N.E.2d 964 (2d Dist. 1992).
129
Schuman v. Pekin House Restaurant and Lounge, 102 Ill. App. 3d 532, 430 N.E.2d 145 (1st Dist. 1981).
130
Thiede v. Tambone, 196 Ill. App. 3d 253, 553 N.E.2d 817 (2d Dist. 1990).
131
Thiede v. Tambone, 196 Ill. App. 3d 253, 553 N.E.2d 817 (2d Dist. 1990).
132
133
Id.
134
128
32
However, the fact that a sidewalk is used by customers of the defendant for ingress and
egress does not, necessarily, create a duty on the part of the business owner to maintain it.
Rather, the business owner must affirmatively appropriate the area for business purposes before a
duty will be imposed. In Thiede v. Tambone, the plaintiff brought suit against a landowner for
injuries caused by tripping over a raised surface of a sidewalk adjacent to the defendant’s
property.135 There was no evidence presented to suggest that the defendant prevented the general
public from using the sidewalk in any way, or that the defendant obstructed the sidewalk, parked
on the sidewalk, or conducted business on the sidewalk. As such, the business owner did not
owe the plaintiff a duty to maintain the area.
Further, an owner does not take an “affirmative step” to appropriate a walkway by merely
sweeping or cleaning the path, mowing the grass around the path, or by taking other actions to
keep the pathway clean. In Evans v. Koshgarian, the plaintiff brought suit against the landowner
for injuries sustained in a fall on a parkway between the sidewalk and the street. 136 The plaintiff
alleged that the defendant “was in possession and control” of the walkway and voluntarily
assumed a duty to maintain the path, in that he mowed the grass around the subject area. The
court however, held that merely because a landowner mows the grass or shovels snow from it is
not evidence to establish that he has “affirmatively appropriated the public sidewalk…for his
own use.”137
Ingress & Egress
A recent Illinois decision has affirmed court holdings that require a property owner to
keep the designated “means of ingress and egress” and the “assumed means through repeated
use,” safe.138 In Rogers v. Matanda, the defendant owned the bar the plaintiff entered as well as
property to the north of the bar where there was a substantial change in elevation via a retaining
wall between the two pieces of property. The only illumination in the area of the retaining wall
was the lighting from the beer sign at the defendant’s bar. Plaintiff, who was intoxicated,
claimed the lighting in and around the area where he fell created the illusion that the ground was
flat, that defendant failed to barricade the area, and failed to warn of the change in elevation.
The plaintiff appealed the court’s ruling in favor of the defendant on its summary
judgment motion. However, the appellate court held there was no evidence the defendant
prescribed an alternate route that would take plaintiff anywhere near the location of the
plaintiff’s fall. Furthermore, the court noted the only means of ingress and egress to the bar that
plaintiff used that evening, he used safely and there is no evidence of unsafe conditions in those
areas. The court held that the fact that the plaintiff “took a frolic beyond the prescribed means of
ingress and egress does not expand defendant’s duty.”139 The plaintiff chose to bypass a
perfectly safe entrance to the tavern and never alleged that the area in which he fell was either a
designated means of ingress or egress or that it had become the assumed means through repeated
use.
135
234 Ill. App. 3d 922, 602 NE.2d 27 (1st Dist. 1992).
137
Id.
138
Rogers v. Matanda, Inc., 393 Ill.App.3d 521, 913 N.E.2d 15 (3rd Dist., 2009).
139
Id. at 526.
136
33
The court cited to Seipp v. Chicago Transit Authority, which held that it is the duty of the
property owner to properly illuminate, give adequate warning of, or cause to be repaired a
known, dangerous condition.140 In Seipp, the defendant did prescribe a safely illuminated means
of ingress and egress, yet plaintiff chose to take another path. The plaintiff knew of this route,
but decided to take a shortcut to her home. Since there was no evidence that the defendant either
prescribed the alternate route to its patrons as a means of egress or ingress, or assumed it would
be used as such at the time of the accident, the directed verdict in favor of the defendant was
proper.
Natural Conditions on the Land
It has been long been the case that a landowner is not liable for physical harm caused to
others by a natural condition of the land.141 “Natural conditions of the land” include the natural
growth of trees and other vegetation upon land, not artificially made.142 However, a number of
courts have stated that a landowner in a residential or urban area has a duty to others outside of
his land to exercise reasonable care to prevent an unreasonable risk of harm arising from
defective or unsound trees on the premises.143 These cases establish a general trend to place a
greater responsibility upon the owner of the property where there are tree branches or roots that
extend off the landowner’s property onto a public sidewalk or roadway, which have the potential
to cause injury to a person passing by.
For example, in Ortiz v. Jesus People, U.S.A., a bicyclist was injured when a tree limb on
the defendant’s property fell on her.144 The tree in question was located on defendant’s property
and the limb, which extended over the public sidewalk, measured more than 19 feet and was
estimated to be up to 14 inches in diameter. Several witnesses, including the plaintiff, indicated
that, at the time of the incident it was a violently windy day. The injured bicyclist brought a
negligence action against the defendant property owner and the city for injuries she sustained
when the branch hit her.
The court determined that the defendant’s duty of reasonable care included inspection
and maintenance of a tree with a limb that hung over a busy public sidewalk. Moreover, the
Court noted that, “it would have been easy for the defendant to obtain information about the
condition of the tree, considering the defendant’s [30] years of ownership of the property and the
tree, the size of the limb, and the fact that it was over the public walkway.” Therefore, it was
incumbent upon the defendant to find out and to take appropriate action.145
In addition, in another recent case, Stackhouse v. Royce Realty and Management
Corporation, the court affirmed a jury verdict in favor of the plaintiff in the amount of
$4,529,322 after the plaintiff was severely injured when a tree located on a golf country club
property fell and struck her in the back.146 There, the plaintiff was walking her dog behind her
140
Seipp v. Chicago Transit Authority, 12 Ill. App. 3d 852, 299 N.E.2d 330 (1st Dist. 1973)
Restatement (Second) of Torts § 363(1), at 258 (1965).
142
Restatement (Second) of Torts § 363(1), comment b at 258 (1965).
143
Ortiz v. Jesus People, U.S.A., 939 N.E.2d 555, 560 (1st Dist. 2010).
144
Ortiz v. Jesus People, U.S.A., 939 N.E.2d 555 (1st Dist. 2010).
145
Ortiz, 939 N.E.2d at 562.
146
Stackhouse v. Royce Realty and Mgmt Corp., 2012 Ill. App. 2d 110602 (2d Dist. 2012).
141
34
house, near the thirteenth hole when a tree limb fell on her back and shoulders, knocking her to
the ground and severely injuring her. Notably, two years before, a broken tree limb fell from a
tree directly next to the one in question from apparent decay. At that time, the plaintiff informed
the country club employees that the trees looked rotten and that the country club should have
them checked out. Moreover, after the plaintiff was struck by the tree two years later, she
brought in an expert arborist that testified that both tree limbs broke because of structural
weaknesses due to excessive decay. Plaintiff’s expert further testified that had a certified
arborist been called to the country club to investigate the trees after the incident two years ago,
the arborist would have noticed the decay and alerted the country club that the tree limbs could
potentially fall with no wind at all.
In upholding the jury verdict, the court noted that even though the danger of a tree falling
on a golf course and hitting a person due to a naturally occurring fungus is not the type of event
that occurs so frequently that, in general, it could have been foreseen; in this case, the tree was
one in very close proximity to a cart path frequently used by golfers and pedestrians, as well as
immediately next to a tree of the same type that was known to be rotten. The court held that
based on this information, a reasonable person in the country club’s position should have known
that the tree at issue was also possibly rotten, and therefore, posed a danger of falling.
Based on the Ortiz and Stackhouse rulings, it is of the utmost importance that urban
landowners and retailers exercise reasonable care to determine the condition of trees on their
land. As was noted above, it is not enough for an urban landowner to merely take action on the
defective conditions it is made aware of. Instead, the Ortiz and Stackhouse cases set a precedent
that urban a landowner must obtain information about its trees by some means such as hiring an
expert and learning what conditions need to be remedied.
Dangerous Conditions Created by the Business Owner
As noted above, if a landowner creates a dangerous condition on a public sidewalk, he
can be held liable for injuries proximately caused by his actions. A landowner can be subject to
liability to others off of its land for physical harm caused by a structure or other artificial
condition on the land if:
147
(a)
The landowner created the condition;
(b)
The condition is created by a third person with the
landowner’s consent or acquiescence; or
(c)
The condition is created by a third person without the
landowner’s consent or acquiescence, but reasonable care is
not taken to make the condition safe after the land owner
knows or should know of the condition. 147
Restatement (2d) of Torts §364 (1965).
35
For example, in King v. Swanson, the plaintiff slipped on the public sidewalk shortly after
the defendant had dragged large bags across it, causing it to become slippery. 148 The court held
that, because the defendant conducted personal business on the walkway rendering it unsafe, the
defendant was liable for the injuries.
Similarly, in Donovan v. Raschke, a landowner placed building materials on a public
sidewalk in front of his building while performing remodeling work.149 The plaintiff tripped on a
piece of the material, sustaining injuries. The court held that the defendant had a duty to keep
the sidewalk free from any condition which may create a danger or a hazard to persons lawfully
upon the street and, as such, was liable for the plaintiff’s injuries.
However, an affirmative act on the part of the landowner is typically required before a
duty will be imposed. In Repinski v. Jubilee Oil Co., the plaintiff asserted that the defendant
created an unsafe condition by driving over the walkway, causing the cement to crack. 150 The
court held that driving over the walkway was not an affirmative act, and the landowner could not
be held liable for the natural deterioration of the walkway.
Cases Involving Miscellaneous Dangerous Conditions
In order to illustrate other various types of dangerous conditions that have been at issue,
several additional cases are analyzed below.
In Piper v. Moran’s Enterprises, the grocery store stacked cartons of soda on wooden
pallets.
The market used the pallet system to lower labor costs, but it required its employees
to move cases forward on the pallets so customers could reach the merchandise without getting
on the pallets. No signs were posted warning customers about stepping on the pallets. While
attempting to grab a carton of soda, the plaintiff stepped onto the wooden pallet. Her foot caught
on the pallet and she fell, breaking her ankle. The customer testified that after she fell, she
observed a hole in the wooden pallet. Evidence was presented that that all employees were
expected to use their spare time to keep products on the front of the pallet to avoid customers
stepping on them. The record was devoid of any evidence establishing that any employees gave
any attention to either the plaintiff or the pallet in question before her fall. Based on this
evidence, the Fifth District Appellate Court affirmed the jury’s award of $31,000 in favor of the
plaintiff, noting that the pallet was connected to the store’s business and, therefore, notice of a
defect was not required. The court also held that the risks associated with the pallet were not
open and obvious.
151
In Mueller v. Phar-Mor, Inc., a customer filed suit against a drug store seeking
compensation for an injury to her thigh, which she sustained when she was struck by a sliding
electric glass door while entering the store.152 The store had two automatic sliding glass doors
and two glass side panels adjacent to the sliding doors. Upon entering the store, the plaintiff
noticed that the side panel on the left side of the sliding glass doors was not in place, leaving an
148
216 Ill. App. 294 (1st Dist. 1919).
106 Ill. App. 2d 366, 246 N.E.2d 110 (Ill. 1969).
150
151
152
149
36
opening. Plaintiff attempted to walk through this opening, and upon doing so, activated the
sliding glass doors, which struck her right side and pinned her leg against the door’s outer frame.
The store manager testified that the system was designed so that the sliding doors should have
been inoperable if a side panel door had been removed. The trial court granted defendant’s
motion for a directed verdict holding that the plaintiff failed to prove that the defendants knew,
or in the exercise of ordinary care, should have known that the condition of the doors involved an
unreasonable risk of harm.
The appellate court affirmed, holding that knowledge of the open side panel was
insufficient where there was no evidence that such a condition would cause the sliding doors to
strike a person walking through the open panel. Additionally, there was no testimony of any
previous incidents of the sliding doors activating while a side panel was out of place, no
evidence that the store ever saw that happen to anyone, and no evidence that the store ever had to
call repairs to the door. Therefore, the trial court properly directed a verdict for the store.
In Day v. Menard, Inc., the plaintiff brought suit against the defendant store for injuries
she sustained when she fell attempting to open the tailgate of her vehicle to load landscaping
materials purchased at the store.153 The plaintiff claimed that store employees told her to drive to
a secure area so that they could load the merchandise in her vehicle; however, after waiting for
the employees for 15 minutes, the plaintiff decided to load the merchandise herself. The plaintiff
claimed that she specifically asked if an employee could open the tailgate of her vehicle. Under
the voluntary undertaking theory of negligence, a duty limited to the extent of the undertaking,
may be imposed on someone who voluntarily agrees to perform a service necessary for the
protection of another individual or their property.154 This theory applies to failure to perform the
undertaking, as well as negligent performance of the undertaking. The court affirmed summary
judgment in favor of the defendant, since the plaintiff could not show that she relied on the
defendant’s promise and suffered harm due to such reliance. The court emphasized that the
plaintiff knew the defendant failed to perform the undertaking, decided to load the materials
herself, and suffered injuries. Notably, the plaintiff did not obtain or attempt to obtain substitute
performance by asking another employee for help. The court also held that a 15 minute wait for
assistance was not a breach of the defendant’s duty to the plaintiff.
In Britton v. University of Chicago Hospitals, the plaintiff was attempting to enter the
Hospital through a revolving door when the door jammed and he decided to give it a "shove." 155
After he pushed, the door did not move, but the outer glass surrounding the door broke and
injured the plaintiff's left shin and knee. The plaintiff sued the University of Chicago Hospital
alleging that it was careless in its management of the revolving door. The plaintiff alleged that
the Hospital had a duty to maintain a proper ingress and egress from the premises, and stated that
the Hospital failed to make a reasonable inspection of the entrance and that the failure amounted
to constructive notice that the door was defective. The plaintiff also argued that whether the
Hospital made a proper inspection was a question of fact. The trial court granted summary
judgment for the Hospital, which the appellate court affirmed because the plaintiff was required
153
386 Ill. App. 3d 681, 899 N.E. 2d 501 (3d Dist. 2008).
Day v. Menard, Inc., 386 Ill. App. 3d 681, 899 N.E. 2d 501 (3d Dist. 2008).
155
Britton v. University of Chicago Hospitals, 382 Ill. App. 3d 1009, 889 N.E.2d 706, (1st Dist. 2008).
154
37
to have some evidence tending to prove that a specific condition under the Hospital's control
caused the glass to break.
There is nothing in the record regarding any defect in the glass or
the revolving door. There is nothing in the record regarding
maintenance of the revolving door. Further, there is nothing in the
record to indicate that the hospital had actual or constructive notice
of any defect in the revolving door. Here the record merely
contains general allegations against the defendant but no evidence
creating any issues of material fact. 156
The court also addressed the plaintiff's contention that the door's breaking constituted
evidence of negligence in-and-of itself under the legal doctrine of res ipsa loquitur (the thing,
for/to itself, speaks). The court rejected this argument stating that the plaintiff was operating the
door and caused it to revolve and “where a structure not obviously dangerous has been in daily
use for an extended period of time and has proven adequate, safe, and convenient for the
purposes to which it was being put, it may be further continued in use without the imputation of
negligence.”157 In addition, the court held that the operation of a revolving door is not within the
exclusive control of the premises owner, and persons using them take a role in their operation
and are required to exercise ordinary care in its use. This language is important because if the
plaintiff (or anyone) was using the door and taking a distinct part in the operation of the door,
then that person would be charged with the exercise of due care in its operation, as well.
The De Minimis Rule
The “de minimis rule” prevents actions against landowners for minor or slight defects in
sidewalks, walkways, and other outdoor surfaces.158 The defense was rooted in the scope of a
municipality’s duty to maintain its property in a reasonably safe condition. While municipalities
have a duty to keep their sidewalks and streets safe, they do not have duty to keep all walkways
in perfect condition at all times. Thus, as a matter of practicality, the de minimis rule was
adopted.
In 1993, the court in Hartung v. Maple Investment and Development Corp., extended the
de minimis rule to apply to all private landowners, including owners of businesses. In that case, a
customer brought suit against owners of several retail establishments for injuries sustained when
she tripped on a raised portion of a sidewalk. The court noted that landowners are not insurers
against all accidents that occur on nearby sidewalks. Rather, the court stated that they only have
a duty to exercise reasonable care in keeping the sidewalks and walkways reasonably safe, and
found that the de minimis rule should, therefore, be extended to include all private landowners as
well.
There is no bright-line test for determining what constitutes a “slight” defect, and there is
some variance in the opinions as to which defects are actionable. However, Illinois courts
156
Id. at 1011.
Id. at 1012.
158
Hartung v. Maple Investment Corp., 243 Ill. App. 3d 811, 612 N.E.2d 885 (2d Dist. 1993).
157
38
generally rely on the rule that a sidewalk defect is actionable only when a reasonably prudent
person would anticipate some danger to persons walking on it.
Case law has established that defects under two inches are generally considered de
minimis and, as such, are not actionable. In Gleason v. City of Chicago, the court held that a ¼
inch crack, in the absence of other aggravating circumstances, was too slight to be actionable.159
Similarly, in Warner v. City of Chicago, the court opined that, without more, a defect of 1 1/8
inches was not actionable because of its minimal nature. 160 In Birck v City of Quincy, the court
found a discrepancy of one and seven eighths inches in height to be non-actionable as being de
minimis.161
As in any negligence case, the plaintiff bears the burden of establishing that the defendant
owed him or her a duty to repair the defect. Hence, the plaintiff must prove that the defect was
not de minimis. A plaintiff, who fails to offer evidence of the size of the defect or the
aggravating circumstances of the defect, has not proven the prima facie case of negligence and,
therefore, the plaintiff’s cause of action must fail as a matter of law.162
Exceptions to the De Minimis Rule
There are three exceptions to the de minimis rule which, if present, could open the
landowner up to liability regardless of the size of the defect.
1. Distraction Exception: Pursuant to this exception, a landowner may be held liable for
a slight defect in a sidewalk or walkway where it is in an area of heavy pedestrian
traffic. Courts have reasoned that the harm in such an area becomes reasonably
foreseeable because pedestrians may be distracted and must be constantly alert to
avoid bumping into each other, such that they would not be paying attention to the
walkway in order discover a defect.163
2. Ingress/Egress Exception: A landowner has a duty provide a safe means of ingress
and egress to the premises. Accordingly, a landowner may be held liable for a slight
defect in a sidewalk or walkway when it exists on the sole pathway to the premises’
entrance/exit.164
3. Partially Enclosed Area Exception: Under this exception, a landowner may be held
liable for a slight defect in a sidewalk or walkway if it is enclosed in an indoor area.
Courts have held that the policy surrounding the de minimis rule would not be
advanced if the rule was applied to indoor patios and walkways, as indoor flooring is
not exposed to weather conditions and can be more easily monitored for defects and
repaired.
159
190 Ill. App. 3d 1068, 547 N.E.2d 518 (Ill. 1978).
72 Ill. 2d 100, 378 N.E.2d 502 (2d Dist. 1947).
161
162
Gillock v. City of Springfield, 268 Ill. App. 3d 455, 644 N.E.2d 831 (4th Dist. 1994).
163
Harris v. Old Kent Bank, 315 Ill. App. 3d 894, 735 N.E.2d 758 (2d Dist. 2000)
164
Id.
160
39
The court in Harris v. Old Kent Bank is illustrative of the distraction exception and the
ingress/egress exception.165 In that case, a customer was injured when she tripped and fell on the
sidewalk near the entrance to the bank. The defect in the sidewalk was measured only 3/4 of an
inch. In ruling in favor of the plaintiff, the court stated that despite the fact that the defect was
slight, because the defect was at the sole point of ingress/egress to bank, and was in area with
heavily congested pedestrian traffic, the de minimis rule did not apply.166 The court reasoned
that the risk of harm was reasonably foreseeable as the defendant was, in essence, forcing its
customers to encounter the defect, since the defect was located at the sole point of ingress/egress
to the bank.
In contrast to the case of Harris, the recent case of Morris v. Ingersoll Cutting Tool Co.
held that a 1 ½ inch crack located in the loading bay where Plaintiff’s semitrailer was parked,
constituted a de minimis defect, and there were no aggravating factors that removed it from de
minimis exception.167 In Morris, the court noted that while the sidewalk conditions are not to be
expected in an industrial parking lot used to load semitrailers, the loading bay area was not a
pedestrian means of ingress and egress to the facility, but was meant for vehicular traffic. Also,
whereas in Harris all customers entering or exiting the bank would traverse the sidewalk in
question, not all drivers parking at defendants' facility would encounter the defect while entering
or exiting their vehicles. Ultimately, in holding that the de minimis rule applied, the court
concluded that plaintiff’s injury was not reasonably foreseeable, as it occurred in an industrial
area used specifically for large semitrailers to be loaded with goods, not in an area for pedestrian
use.168
The case of Bledsoe v. Dredge discusses the partially enclosed area exception.169 In
Bledsoe, the plaintiff tripped on marble slabs located on a walkway in a covered corridor. The
defect that caused the plaintiff’s fall was measured at approximately 3/8 of an inch. The
appellate court held that the de minimis rule did not apply as the defect was located in a partially
enclosed area. The court reasoned that the policy surrounding the de minimis rule would not be
advanced if the rule was applied to indoor patios and walkways, as indoor flooring is not
exposed to weather conditions and can be more easily monitored for defects and repaired.
What to take from the Cases involving Dangerous Conditions
As evidenced by these cases, there are a number of instrumentalities, both inside and
outside of a retail establishment, that pose potential liability risks to a store. These cases illustrate
what conditions have been considered unreasonably dangerous with respect to the stocking of
shelves, as well as the maintenance of carpeting and mats, sidewalks, and store parking lots.
Moreover, as set forth in these cases, it is particularly important for premises owners to be
cognizant of any defects in areas of ingress and egress, as every customer will necessarily be
exposed to these defects when entering or exiting the establishment.
165
Id.
Id.
167
2013 IL App (2d) 120760, 1 N.E.3d 45, 48 (2d Dist. 2014)
166
168
Id.
169
40
Construction Statute of Repose
An additional issue landowners and retailers must consider when an individual is injured
from a dangerous condition on its premises is whether they can be protected against lawsuits and
claims under the Construction Statute of Repose. If the owner or retailer had involvement with
the design or construction of the dangerous condition, it may be protected by the Construction
Statute of Repose.
Illinois has enacted a statute of repose establishing the time period when an action
relating to the design, management, and supervision of construction projects may be brought. A
statute of repose is more than just procedural in nature and is not a true statute of limitations, but
rather functions as an absolute bar to an action.170 The Illinois statute of repose relating to
construction projects (735 ILCS 5/13-214) provides in part:
(b)
No action based upon tort, contract or otherwise may be brought against any
person for an act or omission of such person in the design, planning, supervision,
observation or management of construction, or construction of an improvement to
real property after 10 years have elapsed from the time of such act or omission.
However, any person who discovers such act or omission prior to the expiration
of 10 years from the time of such act or omission shall in no event have less than
4 years to bring an action as provided in subsection (a) of this section.
Essentially, the statute of repose bars claims after 10 years have elapsed from the time the
construction work was done, irrespective of when the plaintiff becomes aware that he had a
cause of action. The statute was enacted for the purpose of insulating all participants in the
construction process from the onerous task of defending against stale claims.171 A statute of
repose is not a statute of limitations, but rather it is a 10-year umbrella within which all actions
against construction entities must be brought, regardless of any statute of limitation which may
apply to an action.
A statute of repose differs from a statute of limitations, as a statute of limitations governs
the time period within which lawsuits may be commenced after a cause of action accrues, while
a statute of repose extinguishes an action before it arises. 172 The running of a statute of repose
extinguishes not only a plaintiff’s remedy, but the right to pursue an action by cutting off the
right of action, without regard to its accrual.
There are two requirements that must be met in order for the construction statute of
repose to apply: (1) it must involve an “improvement to real property”; and (2) the party
claiming the protection of the statute of repose must have participated in either the design,
planning, supervision, observation, management or construction.173
170
Sikora v. AFD Industries, Inc., 18 F. Supp. 2d 839 (N.D.Ill. 1998).
MBA Enterprises v. Northern Illinois Gas Co., 307 Ill. App. 3d 285, 7171 N.E.2d 849 (3d Dist. 1999).
172
Herriott v. Allied-Signal, Inc., 801 F.Supp.52 (N.D. Ill. 1992).
173
Wright v. Board of Education of the City of Chicago, 335 Ill. App. 3d 948 (Ill. 2002).
171
41
An improvement to real property for the purposes of the statute are additions which
amount to more than mere repairs or replacements and which substantially enhance the value of
the property.174 Ordinary maintenance, however, is not an improvement to real property, and the
statute of repose would not apply.175 Criteria that courts use to determine what constitutes an
improvement to real property include whether: (1) the addition was meant to be permanent or
temporary; (2) it became an integral component of the overall system; (3) the value of the
property was increased; and (4) the use of the property was enhanced.176 An improvement to
real property may not have an identity separate from the overall system or building in which it is
located.177 Examples of improvements to real property for the purposes of the statute of repose
include construction of an escalator and an overhead warehouse garage door.178 However, a
reactor tank that was installed at a manufacturing facility was held not to be an improvement to
real property because there was no evidence of any construction undertaken to integrate the
reactor as part of the overall system.179
In Wright v. Board of Education, a mother fell upon a concrete step at the main entrance
to her children’s school. The mother brought suit against the Board of Education, who had built
the school almost forty years prior. The mother alleged that the step was an unreasonably
dangerous condition, and was in violation of the Municipal Code and the Illinois Premises
Liability Act. The Board of Education asserted that the construction statute of repose barred the
plaintiff’s claims, as the main entrance to the school had been built over ten years before the
plaintiff’s fall, and the Board participated in the design of the stair. The court agreed and held
that the statute of repose applied and the action was barred. The court noted that the step had
remained unchanged since its construction, had been performing as it was designed to perform,
and there had been no allegations that the step was worn or damaged. As such, the court held
that the plaintiff was not asserting that the Board had violated its duty to maintain the step, but
rather that the Board had violated a duty to improve the step according to changing statutes and
ordinances. The court stated that imposing an ongoing duty to improve the property would
defeat the purposes of the construction statute of repose.
An issue to consider is whether the duty to maintain the property is separate and apart
from the construction work, and therefore, not subject to the statute of repose. In Ryan v.
Commonwealth Edison, the plaintiff was injured when a circuit breaker exploded while he was
working on a power system. 180 He sued ComEd alleging that it had negligently maintained and
repaired the circuit breaker. Because the power system was more than 20 years old, ComEd
argued the plaintiff’s claims were barred by the construction statute of repose. The Plaintiff
argued the negligent maintenance of that system was an activity not protected by the statute.
The court found that ComEd's status as an installer and any claims that arose from the
installation might fall under the statute of repose. However, the court also made a determination
174
Merrit v. Randall Painting Co., 314 Ill. App. 3d 556, 732 N.E.2d 116 (1st Dist. 2000).
Id. at 119.
176
Krueger v. A.P. Green Refractories Co., 283 Ill. App. 3d 300, 669 N.E.2d 947 (3d Dist. 1996).
177
St. Louis v. Rockwell Graphic Systems, Inc., 153 Ill.2d 1, 605 N.E.2d 555 (Ill. 1992).
178
Adcock v. Montgomery Elevator Co., 274 Ill.App.3d 519, 654 N.E.2d 631 (1st Dist. 1995); Garner v. Kinnear Mfg.
Co., 37 F.3d 263 (7th Cir. 1994).
179
Beals v. Superior Welding Co., 273 Ill. App. 3d 655, 653 N.E.2d 430 (4th Dist. 1995).
180
Ryan v. Commonwealth Edison Co., 381 Ill. App. 3d 877 (1st Dist. 2008).
175
42
that since ComEd had a duty to maintain the equipment (derived from its capacity as the power
supplier and not its status as the installer) the statute would not apply. The Ryan court decided to
focus upon the defendant’s activity that the plaintiff alleged was the cause of the injury, rather
than the improvement itself, or the fact that the defendant may have been the installer or designer
of that improvement. Other activities that do not receive protection under the statute, according
to Ryan, include manufacturing and sales, as well as the breach of a duty of one who undertakes
inspection and maintenance duties.181
The construction statute of repose applies to all parties engaged in construction activities,
including municipalities, and it also applies to improvements to roads and highways.182
Manufacturers are protected under the construction statute of repose only if the manufacturer can
demonstrate that its role in construction extended beyond furnishing standard products generally
available to the public.183 Under such an “activity” analysis, manufacturers are afforded
protection when they substantially participate in the incorporation or installation of the product at
a jobsite, or custom-design a product for a specific jobsite.184
In addition, another issue to be aware of is whether the alleged dangerous condition was
installed by another party. If the condition was installed by another party, the landowner or
retailer may be able to shift risk to that party. For instance, a bike rack, cart corral, railing, etc.,
may be considered a dangerous condition on the premises. In order to determine whether the
risk can be shifted to the entity who constructed that condition, the landowner or retailer can look
to the construction statute of repose for risk shifting, as well.
Applying Law on Dangerous Conditions to Store Policies and Procedures
Since a duty is imposed on a landowner or occupier to keep its property in a reasonably
safe condition for its customers, a landowner should regularly inspect its property for any
potential dangerous conditions. Further, its employees should be trained to report any potentially
dangerous conditions to management in the event that they are discovered. If any customer or
employee complaints are made with respect to a condition of the property that could potentially
cause injury, the landowner should take swift action to remedy or repair the condition. In the
interim, landowners should take efforts to place warning signs around the danger or, if possible,
barricade the danger off completely to prohibit access by its customers.
In defending against a claim in which the plaintiff was injured as a result of a dangerous
condition, there are three primary arguments for defending such a claim or lawsuit:

No dangerous condition existed.

The landowner did not have notice of the condition. If using this defense, the
landowner must square the lack of notice with the aforementioned Donoho rule,
which states that if the condition is connected to the store, notice is not required.
181
Ryan, 381 Ill. App. 3d 877.
O’Brien v. City of Chicago, 285 Ill. App. 3d 864, 674 N.E.2d 927 (1st Dist. 1996).
183
Risch v. Paul J. Krez Co., 287 Ill. App. 3d 194, 678 N.E.2d 44 (1st Dist. 1997).
184
Id. at 46.
182
43
Instead, only circumstantial evidence that the condition was caused by the store is
needed.

The condition was open and obvious.
Many of these defenses require formulation through a thorough post-accident
investigation, which documents relevant pieces of evidence a landowner may use to show that
the condition was not “dangerous,” there was no circumstantial evidence that the condition was
caused by the store, and that the condition was open and obvious. An analysis of what
constitutes a proper investigation is contained in the section of this article below entitled “Proper
Investigation Procedures.”
44
ACCUMULATION OF SNOW AND ICE
Slip and fall accidents are also common on sidewalks, parking lots and entrances to
businesses as a result of accumulations of ice and snow. Fortunately, Illinois law is very
favorable to landowners in this regard and does not impose a duty upon them to remove natural
accumulations of ice and snow. However, there are various exceptions to this general rule,
which are important to understand in order to better prevent liability by a landowner, and assess
a landowner’s potential liability for slip and fall injuries that do occur on the property.
General Rule
Illinois is one of the last states that follows the “natural accumulation rule,” which
is that a landowner or possessor of real property has no duty to remove natural accumulations of
ice, snow, or water from its property.185 Consequently, a landowner cannot be held liable for
injuries to patrons resulting from slip and falls on ice, snow or water on its property, so long as
the accumulations are the result of natural precipitation. Furthermore, a natural accumulation of
ice and snow does not transform into an unnatural one simply by the passage of time.186
Accordingly, in general, in order for a landowner to be liable for a slip and fall as the result of
snow or ice, it must have created, either directly or indirectly, an unnatural accumulation of snow
or ice that would not have been there absent the landowner’s actions.
The natural accumulation rule was first recognized by the Illinois Supreme Court in 1931,
in Graham v. City of Chicago.187 In that case, the plaintiff brought suit against the City of
Chicago after falling on a patch of ice on a city-owned sidewalk. The Court adopted the natural
accumulation rule, holding that it would be “unreasonable to compel a city to expend the money
and perform the labor necessary to keep its walks reasonably free from ice and snow during
winter months.”
This rule was later extended beyond municipalities to allow landlords to escape liability
for injuries incurred by tenants who slipped and fell on naturally accumulated snow and ice
while on the landlord’s premises. Even though other states have begun to abolish the rule,
Illinois courts, since 1931, have consistently applied the natural accumulation rule to all types of
businesses, including retail establishments. One rationale behind Illinois’ consistent application
of the natural accumulation rule is the unpredictability of weather conditions in Illinois. The
rationale for the rule is that in a climate where there are frequent snowstorms and sudden
changes in temperature, these dangerous conditions appear with a frequency and suddenness
which defy prevention, and usually, correction. Consequently, the danger from ice and snow in
such locations is an obvious one, and the occupier of the premises may expect that a customer on
his land will discover and realize the danger and protect himself against it.188
185
Restatement (2d) Torts, §363 (1965).
Frederick v. Professional Truck Driver Training School, Inc., 328 Ill. App. 3d 472, 765 N.E.2d 1143 (1st Dist.
2002); Foster v. George J. Cyrus & Co., 2 Ill. App. 3d 274, 276 N.E.2d 38 (1st Dist. 1971).
187
346 Ill. 638, 178 N.E. 911 (Ill. 1931).
188
62 Am.Jur.2d Premises Liability Sec. 699 (1980).
186
45
The natural accumulation rule also applies to snow, ice, or water that is tracked inside a
building from natural accumulations outside.189 In Roberson v. J.C. Penny, Co., a customer
slipped on water near the inside entrance of the department store.190 The court held that the
natural accumulation rule exonerated the store from any duty to remove the water from its
entrance. Hence, the operator/owner of a retail establishment does not have a duty to
continuously remove tracks left by customers who have walked through such accumulations.
Similarly, in Shoemaker v. Rush Presbyterian St. Luke’s Medical Center, the plaintiff (who was
on crutches) slipped and fell when her crutch slipped out from under her. 191 The court held that
the defendant was not liable for the plaintiff’s injures since tracked-in rainwater was a natural
accumulation. In addition, in Stypinski v. First Chicago Building Corp., a customer slipped and
fell on “slush” inside the defendant’s premises.192 The court held that the business operator
owed no duty of care to its patrons to remove slush or warn them of its presence unless the
accumulation was unnatural in origin and created, either directly or indirectly, by the landowner.
Moreover storeowners are generally under no obligation to install mats or other
safeguards on ramps immediately inside the entrance door, so as to protect against slip and falls
resulting from the natural accumulation of ice, snow, or water.193
However, courts have held that owners of retail establishments can be liable for injuries
caused by tracked-in water when the water causes the floor to become excessively slippery. But,
these cases typically focus on the construction of the floor itself. For example, in Sommese v.
Maling Brothers, Inc., a patron slipped and fell on a rainy day on an inclined terrazzo surfaced
entranceway in a covered foyer.194 An expert witness for the plaintiff testified that he did not
observe any “abrasive material” on the surface of the floor, and that, without such material,
exterior terrazzo floors, upon becoming wet, can become very slippery and hazardous. The
Supreme Court held that a business owner may be liable for injuries sustained by a patron
resulting from tracked-in water where the plaintiff can specifically allege that the material used
in the floor was particularly slippery and dangerous when wet.
Ice lines and ridges formed by vehicular traffic in parking lots are also included within
the natural accumulation rule and no duty is imposed upon the business owner to protect against
injuries caused by such lines and ridges.195 For example, in Stiles v. Panorama Lanes, Inc., the
plaintiff slipped and fell in the parking lot of the defendant’s establishment.196 The plaintiff
testified that she tripped on “ice ruts” in the parking lot caused by tires of automobiles. The
defendant admitted that he did not attempt to salt, shovel, plow, or otherwise remove the ice
and/or snow. The court affirmed the entry of summary judgment in favor of the defendant,
noting that the defendant did not create an unnatural accumulation by merely permitting its
customers to operate motor vehicles in the parking lot provided for their use. Moreover, the
189
Roberson v. J.C. Penny Co., 251 Ill. App. 3d 523, 623 N.E.2d 364 (3rd Dist. 1993); Wilson v. Gorski’s Food Fair,
190
251 Ill. App. 3d 523, 623 N.E.2d 364 (3rd Dist. 1993).
191
192
214 Ill. App. 3d 714, 158 Ill. Dec. 604, 575 N.E.2d 717 (1st Dist. 1991).
193
Branson v. R&R Invest. Inc., 196 Ill. App. 3d 1088, 554 N.E.2d 624 (1st Dist. 1999).
194
36 Ill. 2d 263, 222 N.E.2d 468 (Ill. 1956).
195
Stiles v. Panorama Lanes, Inc., 107 Ill. App. 3d 896, 438 N.E.2d 241 (5th Dist. 1982).
196
Id.
46
court held that the defendant’s conduct in leaving the ice and snow formation did not constitute
negligence.
Natural Accumulations & Safe Means of Ingress & Egress
An emerging issue in Illinois courts is whether a retail establishment’s duty to provide a
safe means of ingress and egress overrides the natural accumulation rule. The Illinois District
Courts are currently split on this issue. In the recent case of Reed v. Galaxy Holdings, Inc., the
First District Court held that the natural accumulation rule applies to all natural accumulations
regardless of their location. An owner of a business is not liable for injuries sustained due to a
natural accumulation of tracked in water, even at the sole point of ingress and egress.197
The Reed court held it is irrelevant whether a natural accumulation remains on the
property for an “unreasonable” amount of time. Since business owners are not liable for failing
to remove natural accumulations of water, they also have no duty to warn of such conditions.198
In addition, allowing saturated mats to remain in an entranceway does not, by itself, transform
the tracked-in water into an unnatural accumulation, nor does it suggest that defendant
aggravated the water’s natural accumulation.199 Reed cited Wilson v. Gorski’s Food Fair, which
also involved a mat in a store's entryway that became soaked with tracked-in rainwater.200
Wilson held that this soaked mat did not transform the water into an unnatural accumulation or
an aggravated natural accumulation of water, and therefore, the store owners were not liable
when a customer sued after slipping in water near the mat.
Contrary to the decision in Reed, the Second District cases of Johnson v. Abbott Labs and
McLean v. Rockford Country Club have held that a landowner’s duty to provide a safe ingress
and egress from its property trumps the natural accumulation rule. 201 In Johnson, the court held
that the natural accumulation rule did not preclude liability for the plaintiff’s injuries when there
was evidence that showed the plaintiff was injured when he slipped in approximately one foot of
snow while using the sole point of ingress and egress to work that the plaintiff and other
employees has used for several years. The court held, “in light of the fact that plaintiff had no
other reasonable means to get to his work place…the evidence supports a finding of liability
under these circumstances.”202
Likewise, in McLean, the plaintiff was injured by falling icicles when entering the front
entrance of the defendant’s place of business. McLean never ruled on whether the means of
ingress and egress present in that case was the sole point of entrance. However, it did hold that
Illinois courts have consistently imposed a duty upon property owners to provide reasonably safe
means of ingress to, and egress from, their places of business, and have explained that this duty
is not abrogated by the presence of a natural accumulation of ice, snow, or water.203
197
Reed v. Galaxy Holdings, Inc., 394 Ill.App.3d 39, 914 N.E.2d 632 (1st Dist. 2009).
Id.
199
Id.
200
Wilson v. Gorski’s Food Fair, 196 Ill. App.3d 612, 554 N.E. 2d 412 (1st Dist. 1990).
201
Johnson v. Abbott Labs, 238 Ill.App.3d 898, 605 N.E.2d 1098 (2d Dist. 1992); McLean v. Rockford Country Club,
202
Id. at 906.
203
Id. at 236.
198
47
The Plaintiff in Reed filed a Petition for Leave to Appeal to the Supreme Court, which
the Illinois Supreme Court declined to hear. If the Supreme Court would have heard the appeal
and sided with the Mclean court, retail establishments would have an on-going duty to remove
all ice, snow, and water, at or near all entrances and exits to their stores.
The effect of such a ruling on the retail establishment would be significant as far as the
attention its employees would have to pay to all the entrances and exits. Retail establishments
would be forced to:





Constantly monitor all entrances and exits;
Shovel and salt on a regular and continuing basis;
Place mats and rugs at the doors, and regularly inspect the area to insure that water is
not accumulating in the area;
Place warning signs and cones during any rain or snow; and
Increase its staff to monitor the area during bad weather.
However, such an on-going duty is not likely to be imposed in light of the 2010 Illinois
Supreme Court decision handed down in favor of the Chicago Transit Authority (“CTA”),
discussed below:
In Krywin v. Chicago Transit Authority, the Illinois Supreme Court held that it would be
unreasonable and impractical to impose a duty on the Chicago Transit Authority (“CTA”) to
remove a natural accumulation of ice and snow from its elevated train station platform or warn
passengers of the existence of the accumulation.204
In Krywin, an elderly woman sued the CTA for negligence and willful and wanton
conduct after she was injured when she slipped and fell on a natural accumulation of ice and
snow while exiting one of its elevated trains. The plaintiff claimed that the CTA breached its
duty to provide her with a safe place to disembark from the train when its conductor stopped the
train in front of a natural accumulation of ice and snow. The jury returned a verdict in favor of
the plaintiff in the amount of $372,141.00. The CTA appealed. On appeal, the defendant argued
that the plaintiff failed to prove that the CTA owed her any duty to remove the snow and ice on
its platform. By contrast, the CTA proved at trial that the accumulation that caused the plaintiff
to fall was natural. The plaintiff argued that the natural accumulation rule should not apply to her
case because, as a common carrier, the CTA owes its passengers the highest duty of care. The
plaintiff asserted that this heightened duty trumped the natural accumulation law in Illinois. The
appellate court agreed with the CTA, and reversed the trial court's entry of judgment against the
CTA. The Supreme Court affirmed the appellate court’s decision, holding that the CTA had no
duty to remove natural accumulations of ice or snow from the train platform, nor did it have a
duty to warn of those conditions.
This opinion is important for landowners in that it strengthens the applicability of the
natural accumulation rule. Despite the CTA owing its passengers the highest duty of care, and
204
238 Ill. 2d 215, 938 N.E.2d 440 (2010)
48
the plaintiff’s argument that the CTA had a duty to remove natural accumulations of ice and
snow from its platforms to provide a safe method of ingress and egress from its trains, the natural
accumulation rule prevailed. While the ruling did not directly involve a landowner of a retail
establishment, this ruling may afford landowners and store owners protection from being
required to constantly monitor all entrances and exits to ensure they are free from ice, snow, and
rain water.
Krywin also falls in line with the First District’s decision in Reed, which held that the
natural accumulation rule applies to all natural accumulations regardless of their location. An
owner of a business is not liable for injuries sustained due to a natural accumulation of tracked in
water, even at the sole point of ingress and egress. On the other hand, the Second District’s
ruling in McLean, in stark contrast to the ruling in Reed, held that Illinois courts have
consistently imposed a duty upon property owners to provide reasonably safe means of ingress
to, and egress from, their places of business and have explained that this duty is not abrogated by
the presence of a natural accumulation of ice, snow, or rain water. However, the opinion in
McLean appears to have been weakened by the Supreme Court’s decision in Krywin.
Since Krywin, courts in Illinois have strengthened landowners’ and store owners’
protection from being required to constantly monitor all entrances and exits. Recently, in
Beaumont v. J.P. Morgan Chase Bank, the plaintiff fell inside the entryway to a bank and
suffered injuries.205 The plaintiff alleged that she fell because the entryway surface was wet.
Inside the entryway to the bank was a mat, but the mat did not reach all the way to interior door,
leaving three feet of exposed tile. The plaintiff alleged that she fell on this portion of exposed
tile.
The defendant bank moved for summary judgment, arguing that the natural accumulation
rule applied to the moisture that had accumulated in the entryway to the bank. The court made
short work of the plaintiff’s claim by noting that the moisture that was present in the entryway
was likely tracked in on the shoes of other customers who had walked through natural
accumulations of snow or water. Such residue or tracks are considered to be natural
accumulations, and cannot form the basis of liability for a landowner. The court held that the
sum of the testimony supported the argument that the moisture would have been tracked in by
customers, including on the shoes of the plaintiff.
Even after finding the moisture to be a natural accumulation, the court went on to address
several of the plaintiff’s arguments, including her argument that the defendant’s failure to cover
the entire tile portion of the floor was the proximate cause of her fall. The plaintiff claimed that
had the mat been placed differently, and covered the tile floor completely, she would not have
fallen. The plaintiff seemed to argue that the defendant had a duty to create a safe means for her
to enter the bank. The court first noted that the plaintiff made no allegations that the mats were
in a state of disrepair or that the mat itself aggravated the natural accumulation. The only claim
by the plaintiff was that the placement of the mat was negligent. The court cited several cases
holding that defendants had no duty to put down additional mats to cover all possible wet spots,
but merely had to maintain, with reasonable care, the mats that had already been placed down.206
205
206
Beaumont v. J.P. Morgan Chase Bank, 782 F. Supp. 2d 656 (N.D.Ill. 2011).
Lohan v. Walgreens Co., 140 Ill. App. 3d 171 (1st Dist. 1986); Reed, 394 Ill. App. 3d 39 (1st Dist. 2009).
49
Therefore, the court dismissed this argument and granted the bank’s motion for summary
judgment.
Moreover, another recent Illinois Appellate Court decision, Dabrowski v. Young Men’s
Christian Association of Chicago, solidified the premise that where a property owner voluntarily
institutes safety measure to prevent people from slipping on natural accumulations of snow, ice,
or rain, and then that property owner subsequently discontinues such safety measures, it may not
be held liable for such nonfeasance.207 In that case, the plaintiff filed a negligence action after he
slipped while attempting to climb the steps at the front entrance of the YMCA building and
fractured his left ankle. The steps at the front entrance of the YMCA building had traction tape
that was installed in the 1990s, but that traction tape had not been replaced since 1993 and had
become very worn, leaving the stairs in the same condition as before the tape was installed. The
plaintiff asserted that once the YMCA chose to install traction tape on the steps, it voluntarily
assumed the duty to maintain that traction tape. However, the court disagreed, stating that the
plaintiff does not argue that the traction tape installed was ripped, torn or defective in such a way
as would increase the risk of harm to the plaintiff. Moreover, the court noted that while property
owners have a general duty to provide a safe means of ingress to and egress from their
properties, the plaintiff would seem to urge an unreasonable new general duty on the part of
property owners to place traction tape or other safeguards on steps to prevent slipping.
As these decisions indicate, Illinois courts continue to hold that a defendant cannot be
liable for tracked in accumulations of snow and water. In addition, as was the case in Beaumont
and Dabrowski, Illinois Courts also continue to find that no duty exists to place mats on the floor
or traction tape on the stairs of your premises. The only duty that exists for landowners and
retailers is to maintain any existing mats or stairs in a reasonably safe condition. Moreover,
Zimmer is instructive that expert opinions are not always sufficient to establish that a duty
existed; there must actually be a factual basis behind such expert’s opinion.
Exceptions to Natural Accumulation Rule
Voluntary Undertaking
One of the exceptions to the natural accumulation rule is when the landowner negligently
performs a voluntary undertaking of snow or ice removal. Under this exception, if a business
owner voluntarily attempts to remove the natural accumulation of snow and ice and does so in a
manner that creates an unnatural accumulation, it may be held liable for injuries arising out of
that removal. 208 A voluntary undertaking by a landowner to remove snow and ice in the past
does not create an obligation to do so in the future.209
Despite this noted exception, Illinois courts have not been enthusiastic about finding
voluntary and gratuitous undertakings. For example, courts have held that the mere fact that an
owner had a maintenance program in effect under which, on rainy or snowy days, it would mop
the floor periodically and place mats in the entrance way, cannot be considered evidence that the
207
Dabrowski v. Young Men’s Christian Ass’n of Chicago, 2012 Ill. App. 112648 (1st Dist. 2012) (unreported).
Restatement (2d) Torts Sec. 324A(a) and (c)(1965).
209
Frederick v. Professional Truck Driving Training School, 328 Ill. App. 3d 472, 765 N.E.2d 1143 (1st Dist. 2002).
208
50
store owner voluntarily assumed a duty to remove tracked-in water. In Roberson v. J.C. Penny
Co., a customer tripped as she stepped off mats that were placed near the entrance of the retail
store.210 The woman did not notice whether the mats were saturated with water. However, the
plaintiff testified that she observed water around the interior entrance on the floor away from the
mats. The customer asserted that the store’s placement of the mats constituted a “voluntary
undertaking” and, therefore, the store had a duty to remove moisture tracked into the store from
outside. The court held that placement of indoor mats did not constitute a voluntary undertaking.
By utilizing mats, the store’s only duty was to ensure that the mats were in a reasonably safe
condition (i.e., no tears or rips). In this case, the plaintiff never alleged that that the mats,
themselves, were defective in any way.
Moreover, landowners who make minimal efforts, such as sprinkling salt, to alleviate the
risks associated with snow and ice, do not assume a duty to remove the hazard completely. In
DeMario v. Sears, Roebuck & Co., a customer was injured after falling on “slush” outside the
defendant’s store after the defendant had salted.211 The appellate court held that although a
voluntary undertaking can be the basis for liability under the natural accumulation rule, the
“mere removal of snow, which may leave a natural ice formation remaining on the premises,
[such as slush,] does not itself constitute negligence.”
Similarly, in Tzakis v. Dominick’s Finer Foods, Inc., a customer filed suit against a
grocery store after slipping and falling on an accumulation of snow and ice in the store’s parking
lot.212 The plaintiff had gone to the store for lunch just after a mild snow fall and fell in the
driveway area in front of the store. She maintained that she slipped on the remnants of an effort
made to melt ice by the application of salt to the area five days before the accident. Therefore,
the plaintiff argued the application of salt allowed the melted ice to re-freeze which constituted
an unnatural accumulation. The court rejected this argument, holding that the mere sprinkling of
salt does not aggravate a natural condition so as to form a basis of liability against the store.
Additionally, the plaintiff presented nothing beyond speculation in the record to suggest that the
presence of ice when she fell was a direct result of the salting days prior to the accident.
Accordingly, the court reversed summary judgment for the plaintiff.
Recently, an Illinois Appellate Court extended the “salting” aspect of the natural
accumulation rule to snowplows as well. In Barger v. G.J. Partners, Inc., the plaintiff slipped
and fell on a circular spot of ice on defendant’s parking lot.213 In that case, a significant amount
of snow fell in the defendant’s parking lot, and in order to help remedy the situation, an
independent contractor plowed the lot and put salt down. In ruling for the defendant, the court
cited the “salting” aspect of the natural accumulation rule; that the application of salt to a natural
accumulation of snow and/or ice that causes it to change composition into a “wintery mix,”
which then freezes, does not change the snow/ice into an unnatural accumulation. Further, the
court stated that while a “snowplow traversing a snowy parking lot may change the composition
of what is below the plow… what remains does not amount to an unnatural accumulation.”
Therefore, the court held that the parking lot contained a natural accumulation from defendant’s
210
251 Ill. App. 3d 523, 623 N.E.2d 364 (3rd Dist. 1993).
212
213
Barber v. G.J. Partners, Inc., 2012 Ill. App. 110992 (4th Dist. 2012).
211
51
plowing and salting, and the defendant had no duty to remove it and could not be liable for the
plaintiff’s injuries.
Unnatural Accumulations or Aggravations of a Natural Condition
Liability can also be imposed if the plaintiff establishes that the defendant landowner (1)
created an unnatural accumulation of snow, or (2) caused an aggravation of a natural
condition.214
A finding of an unnatural accumulation or aggravation of a natural condition must be
based upon an identifiable cause of the snow/ice formation. Whether the condition constitutes a
natural or unnatural one is generally a question for the court to decide as a matter of law.215
However, if reasonable minds differ as to whether the condition is natural or unnatural, a court
may allow the case to go the jury for resolution.
It is initially important to note that the mere passage of time does not transform a natural
accumulation, for which liability is not imposed, into an unnatural accumulation.216 For
instance, in Frederick v. Professional Truck Driver Training School, the plaintiff filed suit for
injuries he sustained when he slipped and fell while exiting a semi-truck owned by the defendant.
The plaintiff asserted that snow on the step of the truck accumulated over a long period of time,
causing the condition to become unnatural. The court disagreed. The court looked to whether the
plaintiff had produced any evidence to show that the defendant “caused” or “aggravated” the
condition. Since there was no evidence of either, the court found that the condition was
“natural”; therefore, no liability could be imposed.217
The following are examples of the types of unnatural accumulations that Illinois courts
have analyzed.
Parking Lots
Slip and falls on ice and snow often occur in a retail establishment’s parking lot.
Common examples of unnatural accumulations in a parking lot are depressions in the pavement,
when the slope of the parking lot causes water to pool, or when a landowner aggravates a natural
condition by plowing snow into large piles that thereafter thaw and refreeze.
In Gilberg v. Toys “R” Us, Inc., a customer filed suit against the store alleging that the
defendant permitted ice to accumulate in a depression in the pavement, which he claimed
proximately caused his injuries.218 The court stated that while a depression in the pavement
could constitute an unnatural accumulation, plaintiff failed to present evidence as to how the
alleged defective design actually caused his injures. That is, he failed to establish that the
placement of the ice was created by the design of the sidewalk, not the natural accumulation of
214
DeMario v. Sears, Roebuck & Co., 6 Ill. App. 3d 46, 282 N.E.2d 330.
Johnson v. National Super Markets, 257 Ill. App. 3d 1011, 630 N.E.2d 934 (5th Dist. 1994).
216
Frederick v. Professional Truck Driving Training School, 328 Ill. App. 3d 472, 765 N.E.2d 1143 (1st Dist. 2002).
217
Id.
218
215
52
snow and ice. As such, the court held that the defendant did not owe a duty to the plaintiff to
remove the ice.
In the case of Wells v. Great Atl. & Pac. Tea Co., plaintiff slipped on a patch of ice that
he claimed was caused by a slope in the defendant’s parking lot that caused water to run down,
pool and then freeze.219 The court stated that when a plaintiff alleges that the design of a sloping
surface created an unnatural accumulation of ice, there must be evidence presented of the
dangerous nature of the slope or that the slope was “excessive,” that the slope was the proximate
cause of the plaintiff's injuries and that the landowner had notice of the defect. The plaintiff
presented the affidavit of an expert that stated that the slope of the parking long was 4.5 inch
drop over a 65.3 foot length. The court stated that minor nature of the slope was insufficient to
constitute an unnatural accumulation.
Where an establishment has removed a natural accumulation of snow and ice, depending
on the factual circumstances of the case, it may be held liable for negligent removal, or
“aggravating a natural condition.” For example, in Johnson v. National Super Markets, Inc., the
court affirmed a jury verdict in favor of the plaintiff, for injuries sustained when a customer
slipped on a patch of ice in the parking lot of the defendant’s store.220 Evidence was presented
that snow had been plowed around the light posts and piled more than five feet high. Melted
snow was running off the snow pile, forming slush, and when temperatures dropped, the water
refroze. The court held that the ice formation was an unnatural condition caused by the
placement of the snow from plowing.
Similarly, in Hornacek v. 5th Avenue Property Management, the plaintiff slipped and fell
on ice in the defendant’s parking lot.221 The plaintiff, through deposition testimony, presented
evidence that the defendants had plowed snow from the parking lot and pushed it into a large pile
on the side of the building. She presented evidence that the snow would melt from these piles to
form an “ice flow” in the parking lot and it was on this ice that she slipped and fell. She also
presented evidence that the defendants knew or should have known about the ice in the parking
lot because they had plowed the snow and ice in the same manner for several years and ice in the
parking lot had been a problem throughout this time. The Court ultimately found that the
plaintiff had raised sufficient evidence to withstand the defendant’s motion for summary
judgment because she had provided evidence from which a trier of fact could reasonably
conclude that the defendants created the defective condition in the parking lot that caused her
injuries.
However, as with any negligence case, the plaintiff must establish that the unnatural
accumulation was the proximate cause of his/her injuries. In Strahs v. Tovar’s Snowplowing,
Inc., the plaintiff slipped on ice in a parking lot and acknowledged that she felt the ice after her
fall. It had recently rained, and she had assumed that the ice formation was created by the
melting snow piles that were in the vicinity of where the plaintiff fell. The court held there was
not a sufficient nexus between the snow piles and the ice formation in the parking lot.222
219
171 Ill. App. 3d 1012, 525 N.E.2d 1127 (1st Dist. 1988)
221
Hornacek v. 5th Ave. Prop. Mgmt, 2011 WL 4579590 (1st Dist, 2011).
222
Id.
220
53
In a similar case, Crane v. Triangle Plaza, Inc., the plaintiff believed that she was 99%
sure that she slipped on ice that had formed when the piled-up snow melted, collected in
depressions in the defendant’s lot, and refroze.223 The plaintiff’s belief as to how the ice formed
did not constitute a sufficient factual basis for her assertion that the ice upon which she allegedly
slipped and fell was created by the unnaturally accumulated snow piles encircling the parking
lot.224 Summary judgment was granted for the defendant because the plaintiff had failed to show
any “nexus,” other than complete speculation.
Additionally, Crane held that the snow removal company’s contract with the store’s
landlord required a reasonable removal of the snow. Therefore, a reasonable removal of the
snow meant that removing all the snow present was not required.225 Further, if a business has
exercised reasonable caution to prevent snow and ice from accumulating on its property, it
normally will not be held liable, and such owner should not be placed in the position of an
absolute insurer of the safety of its business invitees.226
One Illinois court decision saw no compelling reason to require possessors of land to
maintain sidewalks perfectly at all times in order to avoid creating an unreasonable risk of
harm. “To require private landowners to monitor sidewalks and to maintain them perfectly at
all times seems to us unduly harsh and impractical – especially where, for example, in a
shopping center, the outside area exposed to the elements might cover hundreds of thousands of
square feet.”227 The court also took into account the extreme and changeable weather
conditions in Illinois that create expected, slight variations in sidewalk elevations.228
Rooftops or Building Defects
There are exceptions where the accumulation of ice and snow becomes unnatural due to
the design and construction of the landlord’s building.229 The construction and maintenance of
the landlord’s premises are within his control. Accordingly, courts typically hold that it is not
imposing an undue burden on the landowner to require it not to add to the difficulties facing
Illinois residents from natural accumulations of ice and snow by permitting unnatural
accumulations due to defective construction or improper maintenance of the premises. 230
“Protrusions” in a building are enough to raise a factual question as to whether they were
defectively designed or whether their mere presence created a hazard, thereby precluding entry
of summary judgment.231 The plaintiff must show that the accumulation was somehow created
by the defendants or that the property owner had actual or constructive knowledge of the
condition and failed to take a reasonable precaution to avoid injury to its patrons and others.
223
Crane v. Triangle Plaza, Inc., 228 Ill. App. 3d 325 (2d Dist. 1992).
Id.; Grant v. Kaps Café, 2012 Ill. App. 3d 110914 (3d Dist. 2012) (unreported).
225
Id. at 329-330. See, Timmons v. Turksi, 103 Ill. App. 3d 36, 38 (5th Dist. 1981) (removal of snow that leaves an ice
formation does not constitute negligence).
226
Bakeman v. Sears, Roebuck & Co., 16 Ill. App. 3d 1065, 1071 (2d Dist. 1974).
227
Hartung v. Maple Inv. and Development Corp., 243 Ill. App. 3d 811 (2d Dist. 1993).
228
Id.
229
Id. at 711.
230
Id.
231
Id.
224
54
For example, in Lapidus v. Hahn, the plaintiff brought suit against the landowner for
injuries sustained when she slipped on ice while leaving the defendants building.232 The building
was constructed with a sloped roof. The entrance to the building, which was also sloped, or
uneven, was not under the roof, but was open to the sky. Testimony was offered indicating that
whenever it rained or snowed, water would drip off the roof and accumulate in a puddle near the
entrance. The jury held that the accumulation was unnatural, caused by the defective nature of
the roof and the depression in the walkway near the entrance. The appellate court affirmed the
verdict of $350,000.00 in favor of the plaintiff.
Another example is the case of Linde v. Welch, in which the plaintiff slipped and fell on
an ice patch caused by water dripping from a leaky gutter above the stairs to his apartment. 233The
court found this to constitute an unnatural accumulation, and the jury entered a verdict in favor
of the plaintiff. Of note is that the court stated that if the ice formed from the natural overflow of
the gutter, as opposed to a hole in the gutter, the accumulation would be considered natural.
In addition, the natural accumulation rule that a property owner generally owes no duty to
remove snow or ice that accumulates naturally on the premises applies to falling ice and snow
that forms on a building, as well as in slip and fall cases.234
Inadequate Lighting
In addition to the natural accumulation of snow, ice, and water, Illinois case law also
takes into account whether there was adequate lighting at the points of ingress and egress.
Property owners may be liable for injuries resulting from an accumulation of ice, water, or snow
if a plaintiff establishes that the means of ingress and egress was unsafe for any reason other
than a natural accumulation. Compare Branson v. R&L Investment Inc., (holding that since
there was no evidence that the means of ingress and egress was unsafe for any reason other than
a natural accumulation of water, there was no duty on the defendant), with Kittle v. Liss, (holding
that although the plaintiff slipped and fell on a natural accumulation of ice, there was a triable
issue of material facts as to whether the owner provided adequate lighting in accordance with his
duty to provide a reasonably safe means of ingress or egress).235
The Plaintiff’s burden is met if he establishes that a defendant failed to meet his duty to
properly illuminate the premises or to repair or give adequate warning of other known,
dangerous conditions.236 An exception to the natural accumulation may occur when it is unclear
whether an accumulation of ice or snow, as opposed to poor lighting or something else, was the
proximate cause of the plaintiff’s injuries.237
232
Linde v. Welch, 95 Ill. App. 3d 581, 420 N.E.2d 490 (1st Dist. 1981)
234
Bloom v. Bistro Restaurant Limited Partnership, 304 Ill.App.3d 707, 710 N.E.2d 121 (1st Dist. 1999).
235
Branson v. R&L Investment Inc., 196 Ill. App. 3d 1088, 554 N.E.2d 624 (1990); Kittle v. Liss, 108 Ill. App. 3d 922,
439 N.E.2d 972 (1982).
236
Richter v. Burton Investment Properties, Inc., 240 Ill. App. 3d 998, 608 N.E.2d 1254 (1993).
237
Weber v. Chen, 184 Ill. App. 3d 847, 540 N.E.2d 957 (1st Dist. 1989).
233
55
Store Protocol Not Followed
The Reed case is also important for retail establishments to know that they are not
automatically liable for an injury if they do not follow a rainy or snowy day policy. In Reed, the
plaintiff went to the landowner’s business on a rainy day.238 Due to the wet conditions outside,
the defendant’s employee put a mat in the vestibule and another mat beyond the second set of
doors leading to the business.239 But the employee did not follow the laundromat's standard
practice of drying the floor and placing cones near the entrance. However, the court held, if the
water tracked inside of the premises at the point of ingress and egress is naturally accumulated,
the store owner still is not liable even if it failed to follow its rainy day protocol by mopping and
towel drying the floor and placing cones and mats by the entranceway on rainy days. 240
Generally, businesses do not assume liability for natural accumulations by simply
adopting a rainy or snowy day maintenance program.241 Therefore, the business is not subject to
the voluntary undertaking doctrine in this situation. The question would not be whether the
business laid down two mats instead of four. The question is whether the business laid down
those mats negligently. In this instance, there was no evidence that the defendant failed to lay
down the mats with reasonable care.
Contractual Obligation to Remove Natural Accumulations
While there is no common law duty for a retail operator or landowner to remove natural
accumulations, a contract or lease agreement that requires snow or ice removal can create a
contractual duty to remove natural accumulations.242 In cases in which a contractual duty is
created, the injured person need not be a party to the contract, as long as he or she is a
foreseeable user of the premises.243
For example, in the case of Schoondyke v. Heil, Heil, Smart & Golee, Inc., the plaintiff
resident of a condominium owned by her parents sued the defendant condominium association
after she slipped and fell on snow on the sidewalk in the parking lot. The “Declaration of
Condominium” and “Condominium By-Laws” entered into between the defendant condominium
association and unit owners stated that the defendant was responsible for removal of snow and
ice in the common areas, and imposed an assessment fee to the unit owners for snow removal.
The defendant argued that the plaintiff was not privy to the Declaration of Condominium and
Condominium By-Laws, as she was not a unit owner, but merely a resident living with her
parents, and thus it did not owe a contractual duty to the plaintiff. The court rejected the
defendant’s argument and held that because defendant, by virtue of the Declaration of
Condominium and Condominium By-Laws, voluntarily assumed a duty of snow removal not
imposed upon it by common law, it concluded that as a matter of law, defendant owed a duty to
238
Reed, 394 Ill. App. 3d 39.
Id.
240
Id.
241
Id.
242
Schoondyke v. Heil, Heil, Smart & Golee, Inc., 89 Ill. App. 3d 640, 411 N.E.2d 1168 (1st Dist.1980).
243
Id. at 642
239
56
all foreseeable users of the condominium building to remove natural accumulations of snow and
ice, including the plaintiff resident.244
While a duty to remove natural accumulations of ice and snow may arise by virtue of a
contract, it does not create a strict liability standard. A plaintiff still must establish that the
defendant knew or should have known of the dangerous condition and failed to take proper steps
to guard against it before it can be held liable.245 For example, in the case of Burke v. City of
Chicago, the defendant City leased several gates at Midway Airport to Northwest Airlines. The
lease provided that the City was required to keep the area free from obstruction, including the
removal of snow, vegetation, stones and other foreign matter, as reasonably as may be done.246
Plaintiff, an employee of Northwest Airlines, sustained injury when he slipped and fell on ice
located on the ground near one of the gates of Midway Airport that was under the City’s lease.
The court held that while City had duty under lease to remove snow from area, the City
did not breach its duty, when the area had been plowed before the plaintiff’s fall, there was no
evidence that the snow removal was performed negligently, and no snow had fallen after
plowing.247 The Court reasoned that the mere presence of snow and ice does not demonstrate
negligence on the landlord's part. Where the precipitation is recent or continuous, the duty to
remove such obstruction as it forms cannot be imposed, and the dangers arising therefrom are
viewed as the normal hazards of life, for which no owner or person in possession of property is
held responsible. Since the City had taken steps to remove the snow that accumulated earlier in
the day, and no subsequent snow had accumulated prior to plaintiff’s fall, it could not be said
that the City knew or should have known of the dangerous condition and failed to take proper
steps to guard against it. Accordingly, the court held that the City did not breach its duty of care
to the plaintiff.248
Residential Landowners and Occupants
While retail establishments can be held liable for a negligent voluntary undertaking to
remove snow or ice, or aggravating a natural condition, Illinois has carved out an exception for
residential landowners and occupants in the Snow and Ice Removal Act.249 The Snow and Ice
Removal Act provides owners, lessors, occupants, or other persons in charge of residential
property immunity for injuries caused by snow and ice removal efforts, unless their acts or
omissions constitute willful and wanton misconduct.250 By shielding residential owners from
negligence claims under the Snow and Ice Removal Act, the Illinois legislature sought to
encourage the cleaning of snow and ice from sidewalks abutting residences.251
In the case of Pikovsky v. 8440-8460 N. Skokie Blvd. Condo. Ass'n, Inc., plaintiff slipped
and fell on the rear entrance sidewalk of her condominium building on ice that was formed by
244
Id. at 645
Tressler v. Winfield Vill. Coop., Inc., 134 Ill. App. 3d 578, 481 N.E.2d 75 (4th Dist.1985).
246
160 Ill. App. 3d 953, 513 N.E.2d 984 (1st Dist. 1987)
247
Id. at 956.
248
Id.
249
745 ILCS 75/1 (West 2008).
250
745 ILCS 75/2.
251
Greene v. Wood River Trust, 2013 IL App (4th) 130036, 998 N.E.2d 925 (4th Dist. 2013).
245
57
snow that was plowed from the parking lot onto the rear sidewalk.252 The owner of the snow
removal company testified that sometimes he plowed snow from the parking lot onto the rear
entrance sidewalk, and the plaintiff stated that the snow and ice mounds were melting and
freezing over on the rear entrance sidewalk during the entire winter. Plaintiff filed her complaint
against her condominium association and management company, alleging that as owners,
operators and controllers of the condominium building, they failed to remove an unnatural
accumulation on the rear entrance sidewalk.
In affirming the trial court’s granting of summary judgment, the First District held that
the defendants were immune from liability under the Snow and Ice Removal Act. The court
stated that while under the common law, the contractor’s plowing of snow into large mounds that
melted and then refroze would have been considered an unnatural accumulation, the Snow and
Ice Removal Act provided immunity to the defendants, as they were residential owners of the
condominium building, and thus liability could not be imposed for their failure to remove the
unnatural accumulation.253
In contrast, in the recent case of Greene v. Wood River Trust, the court held that the Snow
and Ice Removal Act does not to apply to a residential owner when the unnatural accumulation
of ice was caused by a defect in the construction of the building or improper or insufficient
maintenance of the premises, as opposed to the snow and ice removal efforts of the defendant.254
In Greene, the plaintiff slipped and fell on an alleged unnatural accumulation of ice on the
walkway near the entrance of a residence she leased from defendants. The plaintiff alleged that
the unnatural accumulation was caused by a gutter and downspout on the building. The court
held that the plain language of the Act does not provide immunity for injuries if the unnatural
accumulation of ice was caused by defective condition of the building, as opposed to snow and
ice removal efforts. Accordingly, the Act did not apply and the defendant landowner was not
immune from liability.255
Chicago City Ordinance
In Chicago, the city enacted section 10-8-180 of the Chicago Municipal Code, which
states that, in general, “every owner, lessee, tenant, occupant or other person having charge of
any building or lot of ground in the city abutting upon any public way or public place shall
remove the snow and ice from the sidewalk in front of such building or lot of ground. If the
sidewalk is of greater width than five feet, it shall not be necessary for such person to remove
snow and ice from the same for a space wider than five feet.” In other words, people are
generally charged with the responsibility to shovel and remove ice or snow from the section of
sidewalk in front of their home or business.
The ordinance appears to address only the question of what the repercussions are for
failing to remove ice/snow and does not address what the repercussions are for removing
ice/snow in a negligent manner.
252
2011 IL App (1st) 103742, 964 N.E.2d 124 (2012).
Id. at 130.
254
2013 IL App (4th) 130036, 998 N.E.2d 925
255
Id. at 931.
253
58
Section 10-8-190 states that “any person, who removes snow or ice from the public
sidewalk or street, shall not, as a result of his acts or omissions in such removal, be liable for
civil damages.” In other words, the Chicago ordinance suggests that a business or property owner
may be considered negligent for failing to shovel, salt, or remove ice from the sidewalk, but not
for removing snow/ice in a careless manner.
The City Ordinance is in stark contrast to Illinois case law on the “natural accumulation”
rule for slip and fall accidents, which states that a property owner has no duty to remove a
natural accumulation of snow or ice from property. However, a property owner may be held
liable for a “voluntarily undertaking” to remove ice and snow, and doing so in a negligent
manner. Or, a property owner may also be held liable for slips and falls on an “unnatural
accumulation” of ice or snow (often caused by the negligent snow/ice removal).
What to take from the Natural Accumulation Cases:
It is clear that the natural accumulation rule remains one of the most effective tools to
defeat slip and fall claims that occur on a landowner’s property. As seen in the Illinois Supreme
Court’s recent decision in Krywin, the natural accumulation rule has been strengthened because it
now likely applies to all natural accumulations regardless of their location, even at the sole point
of ingress and egress. It is not likely that property owners need to worry about being held liable
for merely putting out a mat or sprinkling salt to treat natural accumulations of snow or ice.
However, any mats used by a property owner should be free from defects. Property owners
should also be on the lookout for defective conditions which cause water, snow, or ice, to
accumulate in an unnatural way, and should also take careful measures with their snow removal
procedures so as not to create unnatural accumulations of snow and ice, as they will be liable for
injuries caused by such conditions, and will not be protected by the natural accumulation rule.
Applying Law on Natural Accumulations to Store Policies and Procedures
A set forth above, a landowner or occupier has no duty to remove natural accumulations
of snow and ice from its property. Accordingly, while it is not necessary that a landowner
implements a policy of snow/ice remove in order to protect itself from liability, doing so will
likely prevent slip and falls on a landowner’s property. However, as set forth above, if a
landowner does opt to voluntarily perform snow or ice removal efforts, or contract a third party
to do so, it must take measures to ensure that its snow and ice removal efforts do not cause any
unnatural accumulations where one did not previously exist. For example, efforts should be
made to ensure that snow that is plowed or shoveled is not done so into large piles that can later
thaw and refreeze. If this is not feasible given the large area to be plowed, then landowners
should at least ensure that the snow is piled are away from any common areas where a customer
could potentially be walking.
In order to prevent liability resulting from an unnatural accumulation of ice, a landowner
should regularly inspect its property for any defects that cause water, snow or ice to “pool” in a
given location. As set forth above, these can be caused by anything from a gutter system
protruding from a building, to a slope of the parking lot. In the event that a landowner or its
employees notice any locations where water, snow or ice unnaturally accumulates, or are
59
informed of any such accumulations by a customer, it should take appropriate measures to
remedy or repair the condition causing the unnatural accumulation.
In the event that a landowner or occupier is responsible for removal of ice and snow
under a contract such as a lease, it is important to that it have a written policy in place that sets
forth the establishment’s procedures for snow and ice removal. It is also important to create a
written log and keep track of when snow and ice removal measures are performed so as to create
record that the policy was followed. A written snow removal policy should include the following
factors:



Any accumulations of snow or ice on walkways or parking lots should be
shoveled and/or plowed and salted prior to the opening of the establishment.
If precipitation is continuous, employees should continue to shovel and/or salt on
a regular basis (every hour or two depending on the level of precipitation and the
size of the area required to be maintained under the contract) in order to prevent
any substantial accumulation of ice or snow.
Snow that is shoveled should not be piled in areas near where customers
frequently walk, in order to avoid thawing and refreezing.
It is important here to note that when a contractual duty is imposed to remove natural
accumulations of ice and snow, a landowner is only required to use reasonable measures in order
to keep its premises free of ice and snow – it is not required that a landowner keep its premises
free of ice and snow at all times. By implementing the procedures set forth above, this will help
establish that the property owner exercised reasonable care in its snow and ice removal efforts.
60
MUNICIPAL IMMUNITY
Municipalities are considered extensions of the State, and, thus, may be immune from tort
liability. Most states have some form of statute codifying a municipality’s tort immunity, setting
forth the requirements for application of immunity, as well as any exceptions. In Illinois, the
Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101,
serves this purpose. Each state’s statute will contain its own unique language, and so it is
important to examine your state’s immunity provisions for any specific inquiries. Usually, a
statute will cover a wide range of municipal immunities; however, this section will be limited to
immunity from actions related to injuries on municipal property. It is also important to note that
immunities generally must be raised and pled as an affirmative defense, or else they are
waived.256
Permitted and Intended Users
A municipal corporation will generally only owe a duty to those that are rightfully and
lawfully using its property for the property’s intended purpose. In Illinois, those rightfully using
a municipal property are deemed “permitted and intended users.” Section 3-102(a) of the Tort
Immunity Act, which pertains to care in maintenance of property, states in pertinent part:
Except as otherwise provided in this Article, a local public entity has the duty to
exercise ordinary care to maintain its property in a reasonably safe condition for
the use in the exercise of ordinary care of people whom the entity intended and
permitted to use the property in a manner in which and at such times as it was
reasonably foreseeable that it would be used.257
The Illinois Supreme Court has emphasized the importance of this section, and held that the Act
only imposes a duty on municipal corporations to maintain property for uses that are both
permitted and intended.258 A claimant, therefore, cannot maintain an action against a municipal
corporation unless he is both permitted and intended to use the subject property in a particular
way by the municipality.
Whether a particular use of property is permitted and intended by a municipal corporation
is determined by examining the nature of the property itself.259 The intent of the local public
entity is controlling in this regard. Illinois courts have consistently held that when someone
violates a municipal ordinance prohibiting use of municipal property in a certain way, that
individual is not an intended user of the property under the Tort Immunity Act. A municipality’s
failure to enforce an ordinance does not transform a prohibited use of the property into an
intended use.260
256
Mazin v. Chicago White Sox, et al., 358 Ill. App. 3d 856, 832 N.E.2d 827 (1st Dist. 2005).
745 ILCS 10/3-102(a).
258
Boub v. Township of Wayne, 183 Ill. 2d 520, 702 N.E.2d 535 (Ill. 1998).
259
Id.
260
Montano v. City of Chicago, 308 Ill. App. 3d 618, 720 N.E.2d 628 (1st Dist. 1999).
257
61
Alleys, Sidewalks, Streets, and Parkways
Municipal immunity statutes may provide that local public entities have different duties
of care depending on the property at issue. In Thomas v. Town of Cicero, the plaintiff broke
every finger in her right hand after tripping and falling on a crack in an alley behind her house. 261
Thereafter, she sued the Town for failing to maintain the alley. The Town described the alley as
an easement for people to get to their garages, utilities, electric, cable, and garbage, and asserted
that the plaintiff was not an “intended and permitted user of the alley” under the Tort Immunity
Act. Furthermore, the Town maintained that the subject alley was intended to be used by
vehicles, rather than pedestrians.
In holding for the Town, the court stated that a municipality’s duty depends on whether
the plaintiff was a permitted and intended user of the defective public property on which she was
injured.262 The court held that alleys, like streets, are intended for use by vehicles, not
pedestrians such as the plaintiff.263 Furthermore, the plaintiff was not walking in an area of the
alley connecting two sidewalks, which would be an area intended for use by pedestrians. Instead,
she was walking directly down the center of the alley as a shortcut to a neighbor’s garage and as
a substitute for using the sidewalk.264 Therefore, because the plaintiff was not an intended user of
the alley, the town owed no duty to the plaintiff to maintain the alley in a reasonably safe
condition. 265
Similarly, in Montano v. City of Chicago, the court held that a furniture delivery man was
neither a permitted nor intended user of a city alley under the Tort Immunity Act, when he fell
over uneven pavement and injured himself while delivering a couch.266 The City alleged that the
plaintiff was not an intended user of the alley because he violated a section of the Chicago
Municipal Code, which made it unlawful to “park” any vehicle in an alley longer than was
necessary for the expeditious loading or unloading of materials from the vehicle. Even had he not
violated the Code, the plaintiff would not have been an intended user. The court explained that
pedestrians entering or exiting legally parked vehicles on the street are intended and permitted
users of the street in the area around the vehicle because the City manifests an intent that people
should walk in and around that area.267 However, the court rejected the plaintiff’s argument that
he was subject to this exception because there were no pavement markings denoting that the area
was for standing vehicles, or street signs designating the alley as a loading zone. 268 Therefore,
the court held that without these physical manifestations it could not assume that the City
intended vehicles to stand in its alleys or intend the exiting and entering of pedestrians from
these vehicles because such an intention would subject to the City to a large and ill-defined
burden.269
261
Thomas v. Town of Cicero, 307 Ill. App. 3d 840, 719 N.E.2d 187 (1st Dist. 1999).
Thomas v. Town of Cicero, 307 Ill. App. 3d 840, 844, 719 N.E.2d 187 (1st Dist. 1999).
263
Id.
264
Id. at 845.
265
Id.
266
Montano, 308 Ill. App. 3d 618, 720 N.E.2d 628.
267
Id. at 625.
268
Id. at 627.
269
Id.
262
62
In addition to distinguishing between alleys and sidewalks, courts may also have to make
a determination as to whether the municipal instrumentality causing a person’s injury is a
sidewalk or parkway. The difference is crucial in Illinois because a municipality’s duty with
respect to a parkway is limited to maintaining the area to be free of pitfalls, traps, snares, and the
like.270 In contrast, if the area is a sidewalk, defects that do not rise to the level of a pitfall, trap,
or snare may, depending on the circumstances, subject the municipality to liability.271
The court examined these differences in Mazin v. Chicago White Sox.272 In that case, the
plaintiff was injured after getting his foot caught in a tree grate, a rectangular cutout in the
sidewalk in which a tree grows. The plaintiff’s foot became stuck in the five to six inch gap
between the top of the grate and the soil surface. In determining whether the area where the
plaintiff fell was a sidewalk or parkway, the court agreed with the City, and reasoned that the
area more closely resembled a parkway because the grate was clearly intended to beautify the
walkway and interrupted the flow of the traffic on the adjacent sidewalk.273
Next, the court addressed whether the City breached its duty in properly maintaining the
tree grate. The court explained that the City would not be liable for customary parkway
conditions, even if such conditions are slightly dangerous.274 Furthermore, the City’s duty would
be limited to protecting pedestrians from unreasonably dangerous conditions in the nature of a
pitfall, trap, snare, or other like obstruction.275 Ultimately, the court held that the five to six inch
differential between the grate and the soil underneath, as well as the space between the tree trunk
and the center of the grate, were customary conditions of the parkway, rather than hazards.276
Therefore, because these conditions did not create an unreasonably dangerous condition or
obstructions for which the City owed a duty of care, the City was immune from liability. 277
In First Midwest Trust Company v. Greg Britton, a child’s guardian brought suit against
the Village of Round Lake Beach, the owner of vacant property on which the child was injured
in an off-road motorbike accident.278 The child was riding his motorbike over “jumps” on the
property when he collided with another rider, and sustained a brain injury. The Village claimed
immunity under the Illinois Tort Immunity Act, arguing that the child was not an intended user
of its property, and, therefore, it did not owe the child a duty to maintain the property in a
reasonably safe condition. At the time of the child’s accident, there existed a municipal
ordinance that specifically prohibited operation of motorbikes on publically owned property.
The Appellate Court held in favor of the Village, agreeing that the child was not an intended or
permitted user of the property.
The Britton court also rejected application of certain exceptions to the Act. Section 3106 of the Act states that a municipality does not have immunity for willful and wanton conduct
that proximately causes an injury on public property intended or permitted to be used
270
Mazin v. Chicago White Sox, et al., 358 Ill. App. 3d 856, 861, 832 N.E.2d 827, 832 (1st Dist. 2005).
Id.
272
Id.
273
Id. at 862.
274
Id.
275
Id.
276
Id. at 863.
277
Id.
278
271
63
recreationally.279 The Plaintiff also claimed application of Section 3-109, which provides that a
municipality may not claim immunity for an injury to a person who participates in a hazardous
recreational activity on public property when the municipality fails to guard or warn such
individual of a dangerous condition, of which it has actual and constructive notice, and of which
the individual is unaware.280 The Appellate Court held that, where no duty is owed to a plaintiff
under Section 3-102, no duty exists under any exceptions found in the Act, either. Furthermore,
since the subject property was not intended for recreational use, the exceptions claimed by the
plaintiff were inapplicable.
Recreational Property
Section 3-106 of the Illinois Tort Immunity Act provides public entities and their
employees with immunity for injuries caused by a “condition” of any public “recreational
property.” When a public entity intends that its property be used for recreation, the immunity
found in Section 3-106 should apply.281 The statute defines recreational property as “public
property intended or permitted to be used for recreational purposes, including but not limited to
parks, playgrounds, open areas, buildings or other enclosed recreational facilities.”282 Whether an
area is a “recreational property” entitled to protection by Section 3-106 depends on the character
of the property in question, not the activity being performed at a given time.283 Characteristics of
the property itself, such as painted markings, are good indicators of the public entity’s intent as
to the nature of the use.
In the 2014 case of Abrams v. Oak Lawn-Hometown Middle School the First District
ruled on the issue of what constitutes “recreational property” under Section 3-106. In Abrams,
the defendant school district sought immunity under Section 3-106 when the plaintiff student of
the middle school sustained injury when she tripped and fell on an uneven floor surface in the
school’s combined cafeteria/auditorium.284 The court stated that in determining whether 3-106
applies, the court must look to the character and nature of the property as a whole, not the injured
party's use of the property or her activity at the time of her injury. This includes an analysis of
whether the property has been used for recreation in the past or whether recreation has been
encouraged there.
The court held that the combined cafeteria auditorium did not constitute “recreational
property” under the Act. For the purposes of Section 3–106, recreation typically includes sports,
physical activities, and passive activities that are for relaxation and pleasure, instead of
instruction. Here, the uses of the cafeteria/auditorium facility were educational or incidental to
educational uses, in that the facility was used as school's lunch room, as setting for assemblies,
club meetings, and school ceremonies, and, although school band, chorus, and drama programs
gave performances in the facility, such practices and performances were part of the educational
process rather than recreational uses. The court noted that the school had a separate gymnasium
for recreational activities.
279
745 ILCS 10/3-106; First Midwest Trust Company v. Britton, 322 Ill. App. 3d 922, 751 N.E.2d 187 (2d Dist. 2001).
745 ILCS 10/3-109; First Midwest Trust Company v. Britton, 322 Ill. App. 3d 922, 751 N.E.2d 187 (2d Dist. 2001).
281
Bubb v. Springfield Sch. Dist. 167 Ill.3d 372 (1995).
282
745 ILCS 10/3-106
283
Dinelli v. County of Lake, 294 Ill. App. 3d 876 (2d Dist. 1998).
284
2014 IL App (1st) 132987 (1st Dist. 2014).
280
64
An Illinois Appellate Court recently analyzed what is considered a “condition” of
recreational property under Section 3-106. In Grundy v. Lincoln Park Zoo, the plaintiff brought
suit to recover damages for injuries sustained after she tripped over the steel leg of a movable
sign at a restaurant within the public zoo.285 The court considered whether a stationary, but
movable, warning sign sitting in the same location in an outdoor food court constitutes a
‘condition of any public property’ under section 3-106 of the Tort Immunity Act. The Court
looked to two prior Illinois Supreme Court decisions to make the determination that a
“moveable, non-affixed item” may constitute a “condition” of the property. As such, Section 3106 immunity extends to injuries caused by the condition of movable personal property, and that
a misplaced movable item can constitute a “condition” of public property. Therefore, the court
found that the Tort Immunity Act applied to the present case and the zoo could not be found
liable for the plaintiff’s injuries.
In addition, in late 2012, the Illinois Supreme Court ruled that accumulations of snow and
ice, whether natural or unnatural, are considered “conditions” of the property for purposes of
immunity under Section 3-106. In Moore v. Chicago Park District, the plaintiff fell in the
parking lot as she was leaving the Fernwood Park Fieldhouse, which was owned and operated by
the Chicago Park District.286 Prior to the fall, three inches of snow had fallen in the parking lot
and the defendant had plowed, shoveled and salted the parking lot. Due to her fall, the plaintiff
required hip surgery, which led to complications and brain damage, and the plaintiff
subsequently died. In her claim, the daughter, on behalf of the plaintiff, argued that the
defendant was negligent in its shoveling and plowing of snow into mounds in the pedestrian
walkways and ramps, which created an unnatural condition to walk upon or step over. The
defendant moved for summary judgment based on immunity under Section 3-106.
The Illinois Supreme Court relied on Grundy and held that whether snow and ice
accumulated naturally or unnaturally was irrelevant to the issue of immunity for a condition of
public property used for recreational purposes. Moreover, the court held that accumulated snow
and ice in a parking lot are a “condition,” albeit “passive” conditions, of the property for
purposes of immunity, and immunity is not limited to only those conditions that are affixed to
the public property. In making its ruling, the court noted that the accumulation of snow and ice
was not an activity conducted on the defendant’s property, but rather a condition of the property
because absent any actions by the defendant, the condition of snow and ice still would have
existed on the property.
The Grundy and Moore decisions are both directed to what constitutes a “condition” of
recreational property. Both cases seem to illustrate intent by the courts to apply a broad scope to
the definition of a “condition,” even including what the Illinois Supreme Court labeled as
“passive” conditions in snow and ice.
285
286
Grundy v. Lincoln Park Zoo, 2011 WL 3370405 (1st Dist. 2011).
Moore v. Chicago Park Dist., 978 N.E.2d 1050 (Ill. 2012).
65
Willful and Wanton Conduct
An exception to a municipality’s immunity under the Tort Immunity Act is when a
municipal corporation’s willful and wanton conduct is the cause of the plaintiff’s injury. Under
the Tort Immunity Act, willful and wanton conduct is defined as “a course of action which
shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter
indifference to or conscious disregard for the safety of others or their property.”287
Importantly, a plaintiff must first establish that the defendant owed a duty before he can
even allege willful and wanton conduct.288 In Carter v. New Trier East High School, the plaintiff
argued that defendant’s willful and wanton conduct caused him to sustain injuries while playing
tennis on a court maintained by the defendant.289 The court found that the plaintiff pled facts
showing willful and wanton conduct; that is, that the defendant showed a conscious disregard for
the defective condition of the tennis court, when it failed to respond to complaints and inspect
the court when it knew others had been injured as a result of the court’s defective condition and
failed to remedy the condition.
Special Duty Exception
Municipal corporations in states with immunity statutes must still be aware of certain
exceptions to their immunity. These exceptions, which may be set forth in the statute itself or
case law, will have certain nuances that are particular to each state and statute. One exception to
the Illinois Tort Immunity Act, is the “special duty exception” which provides that a
municipality may be held liable where a special relationship exists between the municipality or
its agent and the plaintiff, which creates a duty different from the duty owed to the general
public.290 Four elements must be shown in order to apply the special duty exception:
(1)
(2)
(3)
(4)
the municipality must be uniquely aware of the particular danger or risk to
which the plaintiff is exposed;
there must be specific acts or omissions on the part of the municipality;
the specific acts must be affirmative or willful in nature; and
the injury must occur while the plaintiff is under the direct and immediate
control of employees or agents of the municipality.291
An example of a case that analyzed the special duty exception is Lawson v. City of
Chicago. In Lawson, the mother of a student who was fatally shot at school filed wrongful death
and negligence actions against the City of Chicago and the Chicago Board of Education.292 The
defendants argued immunity under the Tort Immunity Act, however, the plaintiff claimed that
the special duty exception applied.
287
Id.
A.D. ex rel. J.D. v. Forest Preserve District of Kane Co., 313 Ill. App. 3d 919, 731 N.E.2d 955 (2d Dist. 2000).
289
Carter v. New Trier East High School, 272 Ill. App. 3d 551, 650 N.E.2d 657 (1st Dist. 1995).
290
Lawson v. City of Chicago, 278 Ill. App. 3d 628, 662 N.E.2d 1377 (1st Dist. 1996).
291
292
Id.
288
66
In analyzing the above elements of the special duty exception, the court held that the first
element of “unique awareness” was not sufficiently alleged by the plaintiff as to either
defendant. To establish unique awareness, the defendant must have actual knowledge of a
particular risk to the particular plaintiff. The court held that the plaintiff only alleged awareness
of a general danger or risk to the entire student body, not awareness that there was a specific
danger to the decedent, different from all others lawfully on the premises. The plaintiff also
failed to meet the fourth element required under the special duty exception. The control factor
arises when it is the public entity or its employees that initiate the circumstances which create the
dangerous situation. The court held that any control that was exercised by the City or the Board
over the decedent was no different from the control exerted over the entire student body.
Furthermore, it was not the Board that created a dangerous situation through random use of metal
detectors, but rather, the student who brought the weapon on to the premises that created such
situation.
Notice
Ordinarily, in order to impose tort liability on a municipality, it must be shown that the
municipality had actual or constructive notice of the condition which caused the injury. The
Illinois Tort Immunity Act follows this general rule, setting forth different notice requirements
for municipal corporations than those pertaining to private businesses. Section 3-102(a) and (b)
of the Act, state in relevant part:
(a) [A] local public entity…shall not be liable for injury unless it is proven that it
has actual or constructive notice of the existence of such a condition that is not
reasonably safe in reasonably adequate time prior to an injury to have taken
measures to remedy or protect against such condition.
(b) A public entity does not have constructive notice of a condition of its property
that is not reasonably safe within the meaning of Section 3-102(a) if it
establishes either:
(1) The existence of the condition and its character of not being
reasonably safe would not have been discovered by an inspection
system that was reasonably adequate considering the practicability
and cost of inspection weighed against the likelihood and
magnitude of the potential danger to which failure to inspect would
give rise to inform the public entity whether the property was safe
for the use or uses for which the public entity used or intended
others to use the public property and for uses that the public entity
actually knew others were making of the public property or
adjacent property; or
(2) The public entity maintained and operated such an inspection
system with due care and did not discover the condition.293
293
745 ILCS 10/3-102
67
Simply stated, unlike private businesses, a municipal corporation is not liable for injury on its
land unless it had actual or constructive notice of an unsafe condition, and enough time to have
taken measures prior to the injury to protect against the condition which caused the injury.
Actual and constructive notice is determined as otherwise set forth in this article.
General Considerations
Individual state immunity statutes aside, general premises liability guidelines presented in
this article are also applicable to municipal corporations, should a duty be found on the part of
the defendant. For instance, the general rule in Illinois that property owners are under no
obligation to clear naturally accumulating snow and ice from their property is similarly
applicable to municipal corporations.294 The Illinois Supreme Court has also held that under
Section 3-102 of the Act, a public entity that undertakes snow-removal operations must exercise
due care in doing so.295 Rules pertaining to de minimis defects and criminal acts of third parties
apply to cases involving municipal corporations as well.
What to take from the Municipal Immunity Cases:
The case law shows that municipalities generally will not be liable to injured plaintiffs
that were not permissive users of the municipal property, such as pedestrians injured in alleys.
The cases distinguishing between sidewalks and parkways are also significant for municipalities,
as municipalities are held to a higher standard in maintaining sidewalks, than parkways. Finally,
cases like Carter confirm that municipalities may still be liable for willful and wanton conduct,
and should be careful to avoid actions intentionally causing harm, or actions that may be
considered a conscious disregard for the safety of people or property.
Applying Law in Cases in Which a Municipality is a Defendant
As set forth in the cases above, one of the first issues that should be analyzed whenever a
plaintiff files a lawsuit against a municipality is whether immunity applies to bar the plaintiff’s
claim. If it is clear from the facts alleged in the complaint that the plaintiff’s claim is barred by
the Tort Immunity Act, a motion to dismiss can quickly dispose of the claim before any
significant expenses are incurred in order to defend against the claim.
294
295
Rose v. United States, 929 F. Supp. 305 (N.D. Ill. 1996); see also 745 ILCS 10/3-105(a).
Ziencina v. County of Cook, 188 Ill. 2d 1, 719 N.E.2d 739 (Ill. 1999).
68
AFFIRMATIVE DEFENSES
Even if the jury finds that (1) the defendant owed the plaintiff a duty of care, (2) the
defendant breached that duty, (3) the plaintiff’s injuries were proximately caused by the breach,
and (4) the plaintiff suffered damages, the plaintiff still might not be entitled to a full damage
award. The defendant can assert that the plaintiff’s allegations are barred, in full or in part,
because of some action, or inaction, on the part of the plaintiff. These assertions are termed
“affirmative defenses,” and, unlike in the underlying cause of action, the defendant bears the
burden of establishing these defenses by a preponderance of the evidence. This section sets forth
an explanation of the three major affirmative defenses typically asserted by defendants in a
negligence claim.
In the event that a defendant landowner is found to be liable to a plaintiff for negligence,
its liability may be reduced, either in whole or in part, if the plaintiff is also found to be at fault
for his own injuries. The portion of fault attributed to the plaintiff for his/her own injuries is
known as “contributory negligence.”
A plaintiff has a duty to exercise ordinary care and caution for his own safety, before, at
the time of, and after a subject incident.296 “Ordinary care” means the care a reasonably careful
person would use under circumstances similar to those shown by the evidence in each particular
case.297 A plaintiff is contributorily negligent if he:
(1)
Fails to use ordinary care for his own safety or for the safety of his
property; and
(2)
Plaintiff’s failure to use such ordinary care was the proximate cause of the
alleged injury.298
The plaintiff’s contributory negligence, if any, generally does not bar his recovery.
Rather, the total amount of damages he would otherwise be entitled to is reduced by the
proportion of his negligence. For example, consider the following scenario:
A customer observes a banana peel in the aisle of a grocery store.
Instead of walking around the banana peel, the customer attempts
to step over the peel, slips, and is subsequently injured. A jury
might find the defendant at fault for failing to discover the banana,
and award damages in the amount of $20,000. The jury might also
hold the plaintiff 20% at fault for failing to avoid the peel. In such
a case, the plaintiff’s award would be reduced by 20%, and he
would ultimately recover $16,000.
296
Illinois Pattern Jury Instruction, Civil, No. B10.03 (2000).
298
297
69
However, under Illinois law, if the plaintiff is found to be more than 50% at fault for his/her
injuries, the plaintiff is completely barred from recovering any damages.299 For instance, using
the same example listed above:
If the jury finds that the plaintiff is 60% liable for failing to avoid
the peel, and the defendant is 40% at fault for failing to remove a
foreign substance, the plaintiff cannot recover any damages
because he was found to be more than 50% contributorily
negligent.
As with any affirmative defense, the defendant bears the burden of establishing that the
plaintiff’s actions, or inactions, contributed to, and were the proximate cause of, his injuries.300
Mitigation of Damages
Similarly, once the plaintiff determines that he is injured, he must exercise reasonable
care in obtaining appropriate medical treatment.301 Based upon the mitigation of damages
principles, a plaintiff’s award of damages will be reduced to the extent that the injuries were
caused by the plaintiff’s refusal of reasonable medical treatment.302 For example, if a physician
recommends a simple surgical procedure that would alleviate a plaintiff’s pain from an injury,
and the plaintiff elects not to undergo the procedure, the defendant could argue that any future
pain that the plaintiff suffers is due, not because of the defendant’s negligence, but the plaintiff’s
failure to undergo the procedure and mitigate his damages.
As a general rule, the question of whether the medical treatment is “reasonable,” depends
upon the following factors:






The gravity of the plaintiff’s original injury;
The intrusiveness of the proposed medical procedure and its attendant risk of
complications;
The feasibility of alternative medical procedures;
The expense of the proposed medical treatment;
The likelihood of increased recovery if the proposed medical procedure had
been accepted by the plaintiff; and
Other relevant factors.303
Based upon these factors, courts have generally held that a plaintiff has a duty to accept
“reasonable” medical treatment, but has no obligation to undergo a serious operation, in order to
mitigate his damages.304
299
301
Illinois Pattern Jury Instruction, Civil, No. 33.01 (2000).
302
Corlett v. Caserta, 204 Ill. App. 3d 403, 562 N.E.2d 257 (1st Dist. 1990).
303
Id.
304
Corlett v. Caserta, 204 Ill. App. 3d 403, 562 N.E.2d 257 (1st Dist. 1990); See also Illinois Pattern Jury Instructions,
Civil, No. 33.01, Comment (2000).
300
70
“Statutes of limitations” are laws that place time deadlines on how long a plaintiff has to
file a lawsuit for his/her injuries. The time period set forth in the statute of limitations begins to
run on the date that the plaintiff’s claim “accrues.” In actions for personal injury and property
damage, an action accrues on the date that the injury occurs.305 Once the statute of limitations
has run, the plaintiff will forever be barred from filing a claim for his/her injuries.
In Illinois, the statute of limitations for claims involving personal injury is two years from
when the cause of action accrues,306 and five years from the date of when the cause of action
accrues for claims involving property damage.307 Thus, for example, if a patron of a store is
injured in a slip and fall on January 1, 2014, the patron has until January 1, 2016 to file a lawsuit
for his injuries. If the lawsuit is filed after that date, the claim will be barred by the statute of
limitations.
A statute of limitations defense should be one of the first issues analyzed whenever a
plaintiff files a new lawsuit, or whether to pursue an investigation of a claim. If it is clear that
the plaintiff’s claim is barred by the statute of limitations, a motion to dismiss can quickly
dispose of the claim before any significant expenses are incurred in order to defend against the
claim.
305
Del Bianco v. American Motorists Ins. Co., 73 Ill. App. 3d 743, 747 (Ill. App Ct. 1979)
735 ILCS 5/13-202
307
735 ILCS 5/13-205
306
71
PROPER INVESTIGATION PROCEDURES
As set forth above, the successful defense of a claim may very well turn on performing a
proper investigation of the claim after the injury occurs. A defense is only as strong as the proof
one has to support it, and thus a proper investigation is necessary in order to obtain the evidence
to negate the elements of a plaintiff’s cause of action. A proper investigation should begin with
the store employees and personnel immediately after the injury occurs, and continues with the
adjuster and, if necessary, defense counsel. This section sets forth the individuals that should
undertake an investigation and the proper procedures for investigating a claim.
Store Personnel
Store managers and assistant managers play an important role in the initial investigation
of any accident. Store personnel need to make the first contact with the injured party. Staff
should make general observations of the injured party and their condition, and take note of the
conditions of the scene of the accident. Store personnel should also be the first to speak with the
injured party regarding the accident.
After making initial observations of the scene of the accident and contact with the injured
party, store personnel need to complete a customer accident report. The accident report should
contain the time and location of the accident. The report needs to have the name of the person
involved, and a report on the injuries the person suffered. A summary of the occurrence should
be written. All witnesses to the accident should be identified in the report. After the report has
been completed, the injured party needs to sign the report. The report should then be forwarded
to the appropriate corporate headquarters or claims department.
A landowner and his employees must be careful as to whether to take photographs of a
condition. If the alleged condition that caused the injury is one that a jury would likely consider
to present an unreasonable risk of harm to its entrants, then photographs of the condition would
only harm any defense strategy, and should not be taken.
Claims Representatives
Claims representatives conduct the initial evaluation of liability and damages. The claim
representatives will determine the best course of action for the investigation. They will decide
whether to take any recorded statements, whether to retain legal counsel, whether to take
photographs of the area in question, whether to secure any type of surveillance footage, and
whether to retain any products or objects at issue.
Site visits with any employees working near the accident scene at the time of the
occurrence, and interviews with any eyewitnesses would also be helpful in placing yourself in
the plaintiff’s shoes at the time of the accident. In addition, evidence that proves the complete
accident history relative to the condition, or the absence of such accidents, is important in
arguing that the given condition is not “dangerous.”
72
Recorded Statements
There are certain situations where taking the recorded statement from the injured party or
a witness should be done by a claims representative. There are pros and cons to using a recorded
statement. There also may be certain privileged communication issues with recorded statements
of which store personnel must be aware.
Before taking a recorded statement, the claims representative needs to be familiar with
the elements of the claim and must be aware of the available defenses. When asking questions
during the recording, the claims representative should ask pointed questions regarding each
element and each defense.
The injured party should be interviewed before a formal or recorded statement is taken.
If the information from the injured party helps the defense, then the claims representative should
ask to record the party’s statement. The questions should narrow the issues of damages and
liability and should not elicit answers that will prove dangerous conditions or liability for the
store owner.
Collecting Evidence
The type of evidence required to defend against a claim includes the following types of
proof:

Testimonial Proof and Witnesses: Typically, customers will allege that a
condition on the property caused their accident. While a plaintiff is obligated to identify all
eyewitnesses, and those who possess “material knowledge,” of the accident and condition, store
management should interview and independently identify those who are likely to be familiar
with the condition and who can testify at trial. After these informal interviews are taken, if
favorable information is gathered from these witnesses, taking a formal, recorded statement
would aid in the defense of the matter.

Documentary Proof: Accident reports, customer reports, employee reports, as well
as any report from any outside agency that responded to the scene, must be obtained early on.
Other types of documentation may differ on the kind of retail establishment, or by the type of
accident involved. Whether your business’s records help or hurt is initially irrelevant. You must
identify and secure all (potentially) relevant records including: incident/accident reports, leases,
complaint logs/records, maintenance logs/dispatch sheets, security logbooks/daily reports, repair
records/work slips, tenant files, any proposals for repair/renovation, property surveys, contractor
records/contracts, payroll/timesheet records, government permits, correspondence, photographs,
and citations/violations. Defense counsel will need all of this information, and will be able to
determine which information is relevant and/or privileged before producing it during discovery.
Retaining all of this information will not allow the plaintiff to make a spoliation of evidence
claim. It is imperative that the management researches the complete accident history relative to
the subject condition. The absence of similar accidents involving the condition at issue is
admissible and would be relevant in arguing that the given condition is not “dangerous.”
73

Demonstrative Proof: Ultimately, the most persuasive proof will be what the jury
actually sees, particularly if the condition is not as bad as plaintiff claims or if the theory of
liability defies common sense or physical laws. Therefore, preserve all "evidence" (whenever
possible) or alternatively, ensure that the photographic evidence is a fair and accurate depiction
of the condition as it existed at the time of the accident. Also, photographs may present
circumstantial evidence of a defect. However, as set forth above, it is important to emphasize that
the decision of whether or not to take photographs of the scene of the accident needs to be made
on a case-by-case basis. The compelling nature of demonstrative evidence to refute the plaintiff's
contention as to how the accident happened, and/or to bolster a defense theory, is often not
capitalized on in the presentation of defendant's proof. In addition, a site visit is recommended
to gain a realistic appreciation of the circumstances involved in the happening of the accident. 308
The decision to secure any type of surveillance footage also needs to be made early in the
investigation. Obtaining the injured party’s medical records is also an option to be explored in
order to decide whether the claim should be settled right away, or whether the claimant should
file a lawsuit because medical records suggest the claimed injury is related to prior pre-existing
medical issues for which the store owner is not responsible.
Large Loss Cases
In the case of a large loss, the claims representative will consider retaining legal counsel.
All evidence related to the accident will need to be preserved. Litigation hold letters may need to
be sent out to the store to ensure evidence preservation.
308
Id.
74
CONTRIBUTION and JOINT AND SEVERAL LIABILITY
Contribution
Contribution refers to a tortfeasor's right to collect from others responsible for the same
tort after the tortfeasor has paid more than his or her proportionate share. Each party’s respective
share is determined as a percentage of fault.309 Contribution is not to be confused with
indemnity, as indemnity shifts the burden of the entire loss from one party to another, while
contribution allows the parties to split damages according to their respective percentage of fault.
Illinois has codified when an individual has a right to contribution in the Joint Tortfeasor
Contribution Act (740 ILCS 100/2). The act provides in part:
(a)
Where 2 or more persons are subject to liability in tort arising out of the same
injury to person or property, or the same wrongful death, there is a right of
contribution among them, even though judgment has not been entered against any
or all of them.
(c)
The right of contribution exists only in favor of a tortfeasor who has paid more
than his pro rata share of the common liability, and his total recovery is limited to
the amount paid by him in excess of his pro rata share. No tortfeasor is liable to
make contribution beyond his own pro rata share of the common liability.
The Joint Tortfeasor Contribution Act serves to sort out the relative rights of multiple
defendants after the plaintiff has collected from those defendants who are each fully responsible
for all of the damages.310 The Contribution Act serves two equally important public policies. It
allows for an equitable sharing of damages according to fault, and it encourages settlements.311
All that is required to establish a co-tortfeasor’s legal culpability for the purposes of the
Contribution Act is that the persons seeking contribution and the persons from whom
contribution is sought be potentially capable of being held liable to the plaintiff in a court of law
or equity.312
The Contribution Act provides a cause of action for contribution among joint tortfeasors
that may be asserted by a separate action before or after payment, or by counterclaim or thirdparty complaint in a pending action.313 However, the Illinois Supreme Court has interpreted the
statute to require that a tortfeasor bring a claim for contribution by either a counterclaim or a
third-party complaint within the injured parties pending action. If a tortfeasor fails to bring the
contribution claim within the injured party’s action, the tortfeasor is barred from pursuing the
contribution claim in a separate action.314
309
Skinner v. Reed-Prentice, 70 Ill.2d 1, 374 N.E.2d 437 (Ill. 1978).
BHI Corp v. Litgen Concrete Cutting and Coring Co., 346 Ill. App. 3d 300, 804 N.E.2d 707. (1st Dist. 2004).
311
Id. at 712.
312
Vroegh v. J&M Forklift, 165 Ill.2d 523, 651 N.E.2d 121 (Ill. 1995).
313
740 ILCS 100/5
314
Harshman v. DePhillips, 218 Ill.2d 482, 844 N.E.2d 941 (Ill. 2006).
310
75
The statute of limitations for contribution actions is outlined in 735 ILCS 5/13-204. If no
underlying action has been brought by an injured party, then a tortfeasor may not bring an action
for contribution more than 2 years after payment to the injured party was made. However, if an
underlying action has been filed by the injured party, then a tortfeasor may not bring a claim for
contribution more than 2 years after being served with process in the underlying action, or no
more than 2 years after the tortfeasor knew or should have known of an act or omission giving
rise to the claim for contribution, whichever period expires later.
Illinois courts have held that intentional tortfeasors have no right to contribution under
the Act.315 However, a party found to be guilty of willful and wanton conduct that is
unintentional is entitled to contribution from other joint tortfeasors who are found to be merely
negligent. 316 Also, punitive damages are not subject to contribution.
A separate issue arises under the Contribution Act when one of the multiple tortfeasors
settles its claim with the plaintiff. In such an instance, The Contribution Act (740 ILCS 100/2)
provides in part that:
(c) When a release or covenant not to sue or not to enforce judgment is given in good
faith to one or more persons liable in tort arising out of the same injury or the same
wrongful death, it does not discharge any of the other tortfeasors from liability for the
injury or wrongful death unless its terms so provide but it reduces the recovery on any
claim against the others to the extent of any amount stated in the release or the covenant,
or in the amount of the consideration actually paid for it, whichever is greater.
(d) The tortfeasor who settles with a claimant pursuant to paragraph (c) is discharged
from all liability for any contribution to any other tortfeasor.
(e) A tortfeasor who settles with a claimant pursuant to paragraph (c) is not entitled to
recover contribution from another tortfeasor whose liability is not extinguished by the
settlement.
Therefore, if a tortfeasor settles with a plaintiff, it effectively extinguishes that
tortfeasor’s liability and they no longer are liable for contribution to any other tortfeasors.317
However, if a joint tortfeasor wishes to settle with a claimant and then seek contribution from
another tortfeasor, that tortfeasor must secure the other tortfeasor’s release in order to preserve
the right to contribution.318 Once a tortfeasor has settled with a claimant, all non-settling
tortfeasors are entitled to a full set-off in the amount of the settlement.
For a tortfeasor to discharge his liability for contribution to any other tortfeasor, the
settlement must have been made in good faith. It is on the settling parties to carry the initial
burden of making a preliminary showing of good faith.319 At a minimum, the settling parties
must show the existence of a legally valid settlement agreement, and that it is fair and reasonable
315
Tornabene v. Paramedic Services of Illinois, Inc., 314 Ill. App. 3d 494, 731 N.E.2d 965 (1st Dist. 2000).
Ziarko v. Soo Line R. Co., 161 Ill.2d. 267, 641 N.E.2d 402 (Ill. 1994).
317
Palmer v. Freightliner, LLC, 383 Ill. App. 3d 57,889 N.E.2d 1204 (1st Dist. 2008).
318
State Farm Fire and Cas. Co.v. Jones, 329 Ill. App. 3d 219, 768 N.E.2d 805 (2d Dist. 2002).
319
Johnson v. United Airlines, 203 Ill.2d 121, 784 N.E.2d 812 (Ill. 2003).
316
76
in light of the statutory policies.320 When considering the amount of settlement in the good faith
analysis, the amount must be viewed in relation to the probability of recovery, the defenses
raised, and the settling party’s potential legal liability. 321 A settlement will not be found to have
been made in good faith, for contribution purposes, where there has been collusion, unfair
dealing, or wrongful conduct by the settling parties.322 Although no single factor is
determinative, considerations also may include whether the settlement amount was reasonable
and fair, whether the parties had a close personal relationship, whether the plaintiff sued the
settling party, or whether information about the settlement agreement was concealed.323
However, there is no single precise formula for determining when a settlement has been entered
into in good faith, and courts must look to the totality of the circumstances when making a
determination.324
In Pecoraro v. Balkonis, a high school hockey coach was assaulted by a player, and
subsequently brought suit against the player and the hockey association.325 The hockey
association filed a claim for contribution against the player, but the coach later settled his claim
with the hockey player for $5,000. The hockey association argued that the settlement was not
made in good faith, as the coach had suffered severe injuries, even slipping into a coma for
several days. While the appellate court noted that the settlement seemed suspiciously small for
such severe injuries, it upheld the trial court’s determination that the settlement was made in
good faith. The court cited the fact that the hockey player had produced affidavits that he had
little or no assets, and if a large judgment was rendered against him there would be little
probability he would be able to pay it. The court found that the $5,000 settlement was therefore
made in good faith, and the hockey association could not seek contribution from the player.
In contrast, an example of a case where the court held that the totality of the
circumstances surrounding the settlement indicated a lack of good faith is Warsing v. Material
Handling Servs.326 There, the court emphasized the close personal relationship of the settling
parties because their families were close friends, and the fact that the plaintiff, without
explanation, never sued the third-party defendant directly despite the fact that he was driving the
forklift that caused the plaintiff’s injury. The court further cited the fact that the third-party
defendant paid only $1,000. While courts have held that a de minimis settlement amount would
be insufficient standing alone to establish bad faith, the court coupled it with other relevant
factors in finding that the settlement was not in good faith. The court indicated that the amount
was disproportionate in a wrongful death claim if, as the defendant/third-party plaintiff asserted,
the third-party defendant was the primary cause of the accident. The court observed that the
deposition testimony supported the defendant/third-party plaintiff's assertion regarding fault.
320
Chicago Province of Society of Jesus v. Clark and Dickens, LLC, 383 Ill. App. 3d 435, 890 N.E.2d 650 (1st Dist.
2008).
321
Pecoraro v. Balkonis, 383 Ill. App. 3d 1028, 891 N.E.2d 484 (1st Dist. 2008).
322
In re Guardianship of Babb, 162 Ill.2d 153, 642 N.E.2d 1195 (Ill. 1994).
323
Wreglesworth v. Arctco, Inc., 317 Ill.App.3d 628, 633, 740 N.E.2d 444 (1st Dist. 2000).
324
Pierre Condominium Ass’n v. Lincoln Park West Associates, LLC, 378 Ill. App. 770, 881 N.E.2d 588 (1st
Dist. 2007).
325
Pecoraro, 891 N.E.2d at 495.
326
Warsing v. Material Handling Servs., Inc., 271 Ill. App. 3d 556, 648 N.E.2d 1126 (2d Dist. 1995) abrogated on
other ground by Johnson v. United Airlines, 203 Ill. 2d 121, 784 N.E.2d 812 (2003).
77
Joint and Several Liability
Illinois is a joint and several liability state. Under the theory of joint and several liability
each liable defendant is individually responsible for the entire amount of the plaintiff’s damages,
but a paying party may have a right of contribution and indemnity from nonpaying parties.327
The Illinois joint and several liability statute (735 ILCS 5/2-1117) provides in part:
In actions on account of bodily injury or death or physical damage to property,
based on negligence, or product liability based on strict tort liability, all
defendants found liable are jointly and severally liable for plaintiff's past and
future medical and medically related expenses.
The statute also establishes a modified form of joint and several liability by making liability for
damages other than medical expenses several for a tortfeasor whose liability is less than 25% of
the total fault of the plaintiff. This is known as the “25% rule.” Under several liability, a
tortfeasor's liability is limited to the portion of the injury allocated to that tortfeasor's conduct.
The 25% rule is also codified in 735 ILCS 5/2-1117, which states in relevant part:
Any defendant whose fault, as determined by the trier of fact, is less than 25% of
the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and
any third party defendant except the plaintiff's employer, shall be severally liable
for all other damages. Any defendant whose fault, as determined by the trier of
fact, is 25% or greater of the total fault attributable to the plaintiff, the defendants
sued by the plaintiff, and any third party defendants except the plaintiff's
employer, shall be jointly and severally liable for all other damages.
Therefore, a tortfeasor whose fault is found to be less than 25% of the total fault is only
jointly and severally liable for all medical expenses, but will only be liable for his or her share of
the other damages. However, the statute does not apply where several individuals act in concert
to cause a single, indivisible harm.328 A tortfeasor who settles with a plaintiff is no longer
considered in the apportionment of fault among the remaining non-settling tortfeasors.329 The
reasoning behind the modified system was to ensure that minimally responsible defendants
would not have to pay entire damage awards, as they normally would be liable for under the
traditional joint and several liability doctrine.330
For example, in Unizicker v. Kraft Food Ingredients Corp. a welder was caused to fall
from the top of a “manlift” as the result of a forklift crash.331 The welder was severely injured,
and sued both the owner of the plant he was working in, and his employer. After a jury trial, the
plaintiff was awarded $788,000 in nonmedical damages and $91,400 in medical damages. The
jury apportioned 99% of the fault to the welder’s employer, and 1% to the owner of the plant the
welder was working in. Under the apportionment of fault, both the employer and the plant
327
Black’s Law Dictionary (8th Ed. 2004).
Woods v. Cole, 181 Ill.2d 512, 693 N.E.2d 333 (Ill. 1998).
329
Ready v. United/Goedecke Services, Inc., 232 Ill.2d 369, 905 N.E.2d 725 (Ill. 2008).
330
Unzicker v. Kraft Food Ingredients Corp., 203 Ill.2d 64, 783 N.E.2d 1024 (Ill. 2002).
328
331
Id at 1029.
78
owner were jointly and severally liable for the welder’s medical damages of $91,400. However,
the plant owner was found to be only 1% at fault, and therefore was only severally liable for
nonmedical damages. In other words, the plaintiff was only able to recover $7,880 in
nonmedical damages from the plant owner, or 1% of $788,000. The employer was liable for the
remaining 99% of the nonmedical damages.
79
RISK MANAGEMENT ISSUES IN
PREMISES LIABILITY CASES
While prevention of a lawsuit is ideal, it is not practical to avoid litigation entirely.
Therefore, every business owner needs to be aware of certain issues when an accident does occur
to help minimize potential liability.
Spoliation of Evidence
One major concern in terms of risk management is preventing spoliation of evidence.
Two types of spoliation issues exist. First, plaintiffs may bring separate causes of action for
spoliation of evidence when a defendant destroys evidence that prevents them from proving their
cause of action. The elements for pleading a spoliation of evidence claim are identical to those
of a negligence claim. That is, plaintiffs must show that: (1) the defendant had a duty to preserve
the evidence; (2) the defendant failed to preserve the evidence; (3) the plaintiff sustained injury;
and (4) the injury was proximately caused by the defendant’s failure to preserve the evidence. In
other words, plaintiffs are required to establish that they would have been successful in their
claim but for the defendant’s spoliation of evidence. Often times, spoliation of evidence is
pleaded in the alternative to the primary claim.
Boyd v. Travelers Insurance Company is the leading case in Illinois regarding spoliation.
In Boyd, the plaintiff was injured on the job when a portable heater exploded in a vehicle owned
by his employer.332 Representatives of the employer’s insurance company collected the heater
from the plaintiff’s home in order to investigate the plaintiff’s claim. Sometime thereafter, and
before any testing was done, the heater was lost by the insurance company. The plaintiff claimed
that since the insurance company lost the heater, and failed to test it prior to the loss, he was
deprived of a key piece of evidence in his suit against the heater’s manufacturer. The court
found that these allegations were sufficient to support the plaintiff’s theory that the insurance
company caused the plaintiff to be unable to prove his case against the heater’s manufacturer.
The court in Boyd articulated a two-prong test regarding preservation of evidence. First,
while there is generally no duty to preserve evidence, a duty may arise through an agreement,
contract, statute, or another special circumstance.333 A defendant may also voluntarily assume a
duty through affirmative conduct.334 In other words, if a defendant, preserves evidence for its
own benefit, this constitutes a voluntary undertaking, which imposes a duty on the defendant to
continue to exercise due care to preserve the evidence for the benefit of any other potential
litigants.335 Second, if a duty exists, a defendant must then use due care to preserve evidence if a
reasonable person in the defendant’s position should have foreseen that the evidence was
material to a potential civil litigation.336 If both prongs are not met, there is no duty to preserve
the evidence at issue.
332
166 Ill.2d 188, 652 N.E.2d 267 (Ill. 1995).
Id. at 194.
334
Id.
335
Jones v. O’Brien Tire and Battery Service Center, Inc., 374 Ill. App. 3d 918, 927, 871 N.E.2d 98, 108 (5th Dist.
2007).
336
Boyd v. Travelers Insurance Company, 166 Ill.2d 188, 194, 652 N.E.2d 267, 271 (Ill. 1995).
333
80
Therefore, when any accident occurs of a substantial magnitude – for example, where
serious injury or death occurs – the defendant may be held to be on notice of a potential lawsuit,
and the defendant should secure all available evidence. This may include forwarding “litigation
hold” letters to key employees who could potentially have evidence advising the company of the
potential litigation, and instructing these employees to secure evidence in their possession. The
litigation hold letter should include all key evidence, correspondence, written materials, email
transmissions, or any item deemed relevant. The litigation hold letter should be sent out
periodically to remind employees to preserve such evidence.
Security cameras also pose a significant risk for inadvertent spoliation. Usually, security
camera tapes are either recorded over or discarded after a certain amount of time passes. While a
business owner may act in accordance with their standard practice when it comes to deleting
footage, if litigation is suspected or threatened, the business owner may be responsible for
preserving the evidence. Thus, with higher value cases, care should certainly be taken to
preserve tapes that may be relevant to future litigation.
The second type of spoliation claim involves instances where a defendant may file a
claim against a plaintiff for not preserving evidence. The defendant’s claim for spoliation of
evidence is one for sanctions, and not a separate cause of action. In Illinois, a defendant may file
a Motion for Sanctions under Illinois Supreme Court Rule 219(c), and ask for a wide variety of
remedies, including barring the evidence, barring testimony on the evidence, or even dismissal of
the claim.
For example, in American Family Insurance v. Black & Decker, Inc., the plaintiff filed
suit against the manufacturer of a toaster oven, for fire damage caused to the home of its
insured.337 The plaintiff claimed that the toaster oven was defective, and caused the fire. The
plaintiff’s consultant fire investigator inspected the premises in spring 1996, and determined that
the toaster oven was the cause of the fire. Following the inspection, the kitchen of the home was
renovated, and other appliances and an electrical switch were discarded. The condition of the
subject toaster oven was also altered by the plaintiff’s expert witness. Subsequently, in fall 1997,
the defendant was notified of the fire. Due to the aforementioned actions of the plaintiff, the
defendant was unable to conduct a meaningful investigation of the scene of the fire, and was not
able to rule out other appliances as the cause of the incident. The court found that the plaintiff
had a duty to preserve evidence of all alternate causes of the fire, and failed to do so. 338 As such,
the plaintiff deprived the defendant of the ability to establish its case. The court granted the
defendant’s motion to bar plaintiff from introducing evidence, including expert testimony,
concerning the cause of the fire, as a sanction for spoliation of evidence. This ruling was
tantamount to a dismissal of the claim.
Based on the above, defendants should be aware of the potential for a motion for
sanctions, and hold a plaintiff and plaintiff’s expert witnesses to a high standard with its
investigative tactics and techniques.
337
338
2003 WL 22139788 (N.D. Ill.).
Id.
81
Contract Risk-Shifting Measures
Contracts are drafted to govern expectations in a relationship and guard against surprises.
This section provides an overview of particular issues to examine when reviewing contracts an
organization may have with different vendors and/or outside parties.
A contract is an agreement between two or more parties to do, or not do, something for
an agreed exchange of “consideration.” Contracts can be oral, but for the purposes of this
section, the focus is written contracts. Contracts can be labeled differently. A contract may be
called an “agreement,” a “memorandum of understanding,” a “purchase order,” or it may not be
labeled at all. While a contract can be as simple as an exchange of promises, most contracts will
contain additional terms and conditions. It is within these terms and conditions that the riskshifting provisions normally fall. To be a valid and enforceable contract, it does not need any
risk-shifting provisions. These clauses only add clarity to the agreement between the parties
under particular circumstances. Therefore, many contracts do not contain any of the language
discussed in this section. Moreover, there may be many other terms and conditions within a
given contract that are not discussed in this section. For the most part, parties can design a
contract and add as many terms as they so choose. This section is designed only to address the
risk-shifting terms of a contract like “indemnification,” “coverage,” and “insurance.”
This section is designed to help you review and negotiate contracts with independent
service providers such as custodians, landscapers, snow and ice removal contractors, elevator
maintenance companies, etc. Moreover, while this section will provide a basic framework of
what to look for within your contracts, it is certainly advisable that you consult with your own
legal counsel and insurance professional to deal with all of the particulars of a specific contract,
as well as all of the other terms and provisions within a contract that are not discussed within this
section.
Risk-shifting is not designed to put onerous responsibilities and burdens on others for the
simple sake of protecting the more powerful party. Instead, the allocation of risk should be
based upon the ability to control the risk. Thus, the party who has the greatest ability to control a
risk-factor should assume responsibility for that risk. The company who removes the snow and
ice from a parking lot is in the best position to make sure the snow and ice is removed properly;
the custodian from a third-party vendor is the best person to ensure he does not leave a slippery
mess behind; and the elevator repair contractor is the best person to know whether she fixed the
elevator. The contracts, then, with these vendors should state that the vendors will take
responsibility for all of the risks involved.
The focus of any contract review and negotiation for purposes of risk-shifting will be the
language within a particular contract (or lack thereof) dealing with indemnification and
coverage. A landowner is encouraged to have its own counsel and insurance professional review
any contract before agreeing to the contract’s terms, to review all of the provisions within the
contract. For the purposes of shifting risk within a contract, some of the language and issues
discussed below may need to be altered to comply with the needs of the parties and applicable
local law. However, with every contract that requires an insurance clause and indemnity clause,
the following questions must be asked:
82
Indemnity Clause



Does the contract contain an indemnity clause? An indemnity clause should
indemnify, defend and hold harmless the other party or parties from and against any
and all claims and liabilities resulting from a negligent act or omission in the course
of any work done.
Does the indemnity include “reasonable attorney fees?”
Are all parties subject to an indemnity clause? At the very least for your business,
indemnity provisions should be reciprocal and mutual among all parties. The best
case scenario is that the other party agrees to indemnify your business regardless of
whether your business was negligent.
Insurance Clause





Is there an insurance clause in the Contract?
Does the insurance clause specify the types of insurance required?
Are the limits per occurrence and annual aggregate specified?
Does the contract require exchange of information via Certificates of Insurance?
Is the other party required to name your business as an additional named insured
under its policies of insurance?
Indemnity provisions are valuable, but only if the indemnification obligations are clear
and if the indemnitor has sufficient assets to pay claims against the indemnitee. Further,
indemnity may be unavailable where the proposed indemnitee is partially at fault. Insurance
applies regardless of whether an indemnification provision exists. Further, insurance provides a
direct relationship between the insurer and the additional insured. It creates an independent duty
of good faith from the insurer to the seller or lessor.
Insurance has its limits as well. Insurance may be cancelled or its renewal denied. The
party intended to procure insurance could fail to procure that insurance in the first instance. The
party procuring insurance could fail to property maintain the insurance, resulting in cancellation
of the policy and exposing your business to liability.
Contract Risk-Shifting Measures: What to Look For
While there are many things to look for in a contract, for the purposes of risk-shifting, the
primary issues to look for in a contract with another party are the provisions concerned with
indemnification and insurance coverage. While more fully discussed below, these provisions
will allow your organization to shift the risks involved in a given activity to the other party to the
agreement.
83
Indemnification
An indemnity clause obligates one party of a contract to pay for any loss or damage that
has been or might be incurred by the other party. Indemnification provides an avenue to contract
your exposure to risk and claims to another party. In effect, when and if a party agrees to
indemnify, defend, and hold you harmless, if a claim arises that fits within the parameters of the
subject indemnification clause, you may “tender” the cost of the defense for such a claim to the
other party, and, if a settlement or judgment is reached, the other party will pay your proportional
share.
There are several ways to draft and phrase an indemnification clause in order to shift risk.
However, you should be looking for key components within these provisions that will ultimately
allow your organization to shift the risk if a claim arises.
Indemnified Parties
Look to see which parties will be indemnified and which parties will provide
indemnification. For an organization or business entity, the language in the agreement should
protect all affiliated entities, officers, directors, trustees, employees, servants, volunteers, and
agents. Depending on the particular organization, specific mention of other individuals is
advisable. For example, if the organization is a school, the indemnification provision should also
include teachers and coaches.
Types of Claims
When reviewing an indemnification clause, first look to see what types of claims and
losses the provision covers. For the most part, you should draft an agreement whereby the
vendor is required to indemnify and defend the organization for any claims that arise based on
the negligent and/or intentional conduct of the vendor or any employee, agent, or person under
the control of the vendor.
You should also include language within the contract covering criminal conduct, which,
arguably may be subsumed into negligent and/or intentional conduct. Of course, if your
organization has been able to negotiate a very favorable contract, the indemnification provision
may also protect your organization if a claim arises due to the organization’s own conduct.
Depending on the particular state, and the type of contract, agreeing to indemnify a party for its
own negligence may be in violation of public policy. The organization should consult with an
attorney regarding these issues.
Finally, depending on the agreement, you should also look for language that would
indemnify the organization if the third-party violates a law or local ordinance. For example,
many municipalities have ordinances that subject retail establishments to fines if they offer for
sale food items that weigh less than advertised. Most of the time, these items arrive at the retail
establishment already weighed. Therefore, in a contract with a food supplier, the contract should
have language protecting the retail establishment in the event it is fined or penalized because the
item was not weighed properly.
84
Indemnification and Defense
You will want to make sure the indemnification clause not only protects the organization
from any possible judgment or settlement, but also the cost of defending a claim, including the
payment of attorneys’ fees. Be on the look-out for an indemnification provision that only
provides indemnity, but not a defense. In those instances, the organization will need to pay for
its own attorneys to defend the matter, and the clause would only become effective if the matter
resolves with a monetary settlement or a verdict against the organization. While most
indemnification provisions will also include an agreement to pay for a defense, there is no legal
requirement to provide both.
Mutual Indemnity
In the event the organization has also agreed to indemnify the other party, make certain
the organization has not agreed to indemnify the other party for its own conduct, whether it be
negligent or intentional conduct. Moreover, if the organization has agreed to indemnify and
defend another, make certain the provision does not provide that the indemnified party can select
its own counsel and control the defense of any claim. If the organization will be paying for the
defense of a matter, the organization, through its coverage provider, should select appropriate
counsel and make all decisions related to the litigation.
Examples
The following examples are taken from real contracts, although the names have been
changed to protect all confidences. The following examples are just a few ways a party may
attempt to draft indemnity into a contract.

The Best Indemnity Language
The indemnity provisions that follow are good examples of risk-shifting provisions to
look for in a contract. While you may not find the exact wording used in your contracts, these
provisions are intended as examples of what you may find. Moreover, your organization may
use these examples as guideposts for future contract negotiations.
These sample indemnity clauses are the standards that many owners should use because
the owner is indemnified for any and all claims, even if they result from its own negligence.
Depending on the relative degree of bargaining power, your organization may be able to
negotiate the following one-sided indemnity provisions:
The Contractor agrees to indemnify and hold the owner, the owner’s employees and agents, wholly
harmless from any and all damages, claims, demands or suits by any person or persons arising out
of any acts or omissions by the Contractor, his agents or employees in the course of any work done,
regardless of whether Owner, its employees or agents are solely or partially negligent.
85
Contractor, and its subsidiaries, agree and covenant to hold harmless, defend, and indemnify
Owner and its affiliates, employees, servants, volunteers, and agents from and against any and all
actions, causes of action, obligations, expenses, liabilities, losses, penalties, fines, fees
(including reasonable attorneys’ fees), costs, claims, suits and damages, including damages for
personal injury (including death), property damage, or violation of laws, as a result of any
intentional and/or negligent act or negligent failure to act of Contractor and/or its employees,
subcontractors, assignees, independent contractors, which Owner may incur, be exposed to,
become responsible for, or pay out allegedly or actually arising out of or incidental to the Work,
whether same should be contributed to by the sole or partial negligence of Owner, its
employees and agents.
VENDOR, INC., shall, during the term of this agreement, hold harmless, defend, and indemnify
ORGANIZATION, and its parent companies/entities, subsidiary companies/entities, affiliate
companies/entities, directors, trustees, officers, employees, servants, volunteers, and agents
(hereinafter collectively known as “ORGANIZATION”) from and against all actions, causes of
action, lawsuits, obligations, liabilities, losses, penalties, fines, costs, including damages for
personal injury, including sickness, disease, death, property damage, economic losses, or a
violation of law, and expenses, including reasonable attorneys’ fees, all legal expenses, and fees
incurred on appeal and interest thereon, accruing and resulting to any persons, firms, or any other
legal entity as a result of any negligent actions or failure to act by VENDOR and/or its parent
companies/entities, subsidiary companies/entities, affiliate companies/entities, directors, trustees,
officers, employees, servants, volunteers, and agents (hereinafter collectively known as
“VENDOR”), and/ or the ORGANIZATION, or as a result of any intentional, criminal, and/or
reckless actions or failure to act by VENDOR, which ORGANIZATION may incur, be exposed
to, become responsible for, or payout. VENDOR shall assume the investigation, defense, and
expense of all
such claims and causes of action. Any and all costs, expenses, damages, and
losses incurred in connection with this Paragraph shall be due and paid by VENDOR within
fifteen (15) days of written demand thereof by ORGANIZATION. ORGANIZATION agrees to
notify VENDOR of the existence of any such claims or causes of action as soon as
ORGANIZATION is aware of the same.

Mutual Indemnity Language
If your organization cannot negotiate the previously noted provisions because the other
party will not agree to indemnify your business for its own negligence, we recommend the
following “mutual indemnification clause”:
Mutual Indemnity Language
VENDOR, INC., shall, during the term of this agreement, hold harmless, defend, and indemnify
ORGANIZATION, and its parent companies/entities, subsidiary companies/entities, affiliate
companies/entities, directors, trustees, officers, employees, servants, volunteers, and agents
(hereinafter collectively known as “ORGANIZATION”) from and against all actions, causes of
action, lawsuits, obligations, liabilities, losses, penalties, fines, costs, including damages for
personal injury, including sickness, disease, death, property damage, economic losses, or a
violation of law, and expenses, including reasonable attorneys’ fees, all legal expenses, and fees
incurred on appeal and interest thereon, accruing and resulting to any persons, firms, or any other
legal entity as a result of any negligent actions or failure to act by VENDOR and/or its parent
companies/entities, subsidiary companies/entities, affiliate companies/entities, directors, trustees,
86
officers, employees, servants, volunteers, and agents (hereinafter collectively known as
“VENDOR”), which ORGANIZATION may incur, be exposed to, become responsible for, or pay
out. VENDOR shall assume the investigation, defense, and expense of all such claims and causes
of action. ORGANIZATION agrees to notify VENDOR of the existence of any such claims or
causes of action as soon as organization is aware of the same.
ORGANIZATION, shall, during the term of this agreement, hold harmless, defend, and indemnify
VENDOR from and against all actions, causes of action, lawsuits, obligations, liabilities, losses,
penalties, fines, costs, including damages for personal injury, including sickness, disease, death,
property damage, economic losses, or a violation of law, and expenses, including reasonable
attorneys’ fees, all legal expenses, and fees incurred on appeal and interest thereon, accruing and
resulting to any persons, firms, or any other legal entity as a result of any negligent actions or
failure to act by ORGANIZATION, and/or its parent companies/entities, subsidiary
companies/entities, affiliate companies/entities, directors, trustees, officers, employees, servants,
volunteers, and agents (hereinafter collectively known as “ORGANIZATION”) which VENDOR
may incur, be exposed to, become responsible for, or pay out. ORGANIZATION shall assume the
investigation, defense, and expense of such claims and causes of action. VENDOR agrees to
notify ORGANIZATION of the existence of any such claims or causes of action as soon as vendor
is aware of same.

Sufficient Indemnity Language
Below are two additional indemnity provisions that would be good risk-shifting
provisions to look for in a contract. While not necessarily the gold standard, these clauses are
much better than the two examples of the bad indemnity language that are shown later. The first
indemnity clause provides that the contractor will indemnify and defend the client for any and all
claims arising out of the contractor’s intentional and/or negligent act or failure to act. The only
language that would make this provision better would be an agreement to indemnify and defend
the organization against claims based on the organization’s own actions. However, as discussed
previously, such language may be against the public policy in some states and/or situations.
Again, your organization should consult with a local attorney regarding the legality of such
language.
Contractors, and its officers, directors, trustees, affiliates, subsidiaries, employees, servants, and
agents shall hold harmless, defend, and indemnify Owner and its officers, directors, trustees,
affiliates, employees, servants, volunteers, and agents from and against all actions, causes of
action, obligations, expenses, liabilities, losses, penalties, fines, fees (including reasonable
attorneys’ fees), costs, claims, suits and damages, including damages for personal injury (including
death), property damage, or violation of laws, as a result of any intentional and/or negligent act or
negligent failure to act of Contractor and/or its employees, subcontractors, assignees, independent
contractors, which Owner may incur, be exposed to, become responsible for, or pay out.
Contractor shall assume the investigation, defense, and expense of all such claims and causes of
action. Owner agrees to notify Contractor of the existence of any such claims or causes of action
as soon as Owner is aware of the same.
The following indemnity clause is very similar to the clause above, but it specifically
excludes the Manager’s duty to provide indemnity and a defense if the claim is based on the
community’s negligent, reckless, and/or intentional actions or failure to act. It is likely that this
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language is included within the contract to avoid the indemnity provision from being entirely
void by law.
Manager is responsible for the day-to-day operation of the Community. Therefore, Manager shall
defend, indemnify and hold Community, its affiliates, employees and agents, harmless from all
such costs, taxes, damages, penalties and fines incurred by them in the defense of any claims
relating to the Community or any action relating to the Community in which any of them is named
as a party, (including, without limitation, any action brought by any person or entity for tortuous
interference with any prior contract to which Manager has been a party), including reasonable
attorney fees, costs of investigation, court costs and other such expenses, unless such costs, taxes,
damages, penalties or fines were caused by the negligent, reckless, and/or intentional actions or
failure to act of Community and/or its affiliates, employees or agents. Community shall promptly
notify Manager of any such claims made against Community. All expenses incurred by
Community in the investigation or defense of any such claim or action shall be reimbursed to
Community. This indemnification obligation shall survive termination of this Agreement, and is
subject to the waiver of subrogation provisions of paragraph 6.1.

Unfavorable Indemnity Language
The first set of examples includes indemnity provisions that intend to shift the risk upon
the organization, not the vendor hired to perform the subject work. These examples are frowned
upon and, when possible, should be changed before an organization executes a contract. Be on
the look-out for language like the following examples in order to protect your business.
Unfavorable Language
Purchaser shall indemnify, defend and hold harmless Contractor from and against any and all
losses, claims, liability, damages, demands, suits, actions, costs, expenses (including without
limitation, settlement costs, attorney’s fees and court costs and judgment recovered from or
asserted against Contractor, on account of injury (including without limitation, death) to any
person, whether or not that person is an employee of the Purchaser, or damage to or loss
(including, without limitation, theft) of any property, whether or not such claims are based upon
Contractor’s active or passive negligence (i) for any such injury, damage or loss arising out of, or
caused, wholly or in part, by any act, omission, negligence or misconduct on the part of the
Purchaser or any of its students, agents, servants, employees, contractors, licensees or invitees or
(ii) when any such injury, damage or loss is the result, proximate or remote, of the violation by the
Purchaser or any of its students, agents, servants, employees, contractors, licensees or invitees of
any law, ordinance or governmental order of any kind of any term of the Agreement or (iii) when
any such injury, damage or loss may in any other way arise from, out of, or in connection with the
Purchaser’s or any of its employee’s performance or failure to perform under this Agreement.
The Purchaser expressly and specifically agrees that its obligation to indemnify, defend and save
harmless Contractor, as provided in this Agreement, shall not in any way be affected or
diminished by a statutory or constitutional immunity it enjoys from suits or from limitation of
liability or recovery under the workers compensation laws of any state.
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Purchaser shall indemnify, defend and save harmless Contractor from and against liabilities,
losses and claims of any kind or nature imposed on, incurred by, or asserted against Contractor
arising out of the concurrent, active or passive negligence of Contractor in any way connected
with the services provided under this Agreement or the use or operation of the equipment.
Purchaser hereby waives any and all rights of recovery, arising as a matter of law or otherwise,
which Purchaser might now or hereafter have against Contractor.
As you can see from the two indemnity clauses noted above, the purchaser has agreed to
indemnify and hold the contractor harmless not only against claims based on the purchaser’s own
negligence, but also for claims arising out of the contractor’s negligence. As discussed more
fully above, if and when an organization is asked to indemnify another, it should never agree to
indemnify the other party for that party’s own negligence and/or wrongful conduct.
The indemnity clause that follows below appears to be “mutual,” however, the contractor
has promised to indemnify the client only for claims arising out of the “sole negligence” of the
contractor. Conversely, the client has agreed to indemnify the contractor in connection with
“any claims” arising out of the negligence of the client. It is a subtle difference, but an important
distinction. Specifically, the client is responsible to indemnify the contractor, even if the client’s
conduct is only slightly responsible for the claim. On the other hand, the contractor will only be
required to indemnify the client if the contractor’s conduct is the sole, or only, reason for the
claim.
CONTRACTOR agrees to indemnify and hold harmless CLIENT, its directors, officers,
employees, and agents from and against any and all claims, actions, or liabilities which may be
asserted against them by third parties in connection with the sole negligent performance of
CONTRACTOR, its directors, officers, employees or agents in providing Services under this
Agreement. CLIENT agrees to indemnify and hold harmless CONTRACTOR, and its directors,
officers, shareholders, employees and agents, from and against any and all claims, actions, or
liabilities which may be asserted against them by third parties in connection with the negligent
performance of CLIENT, its directors, officers, employees, contractors or agents under this
Agreement.
Other Considerations for Specificity of Indemnity Provisions
One thing to be aware of with certain standard short-form indemnification provisions, is
that it may fail to adequately address key, specific issues that need to be addressed by both
parties. For example, standard language such as:
A agrees to defend, indemnify, and hold harmless B, from any and all damages, liability, and
claims, arising from A’s work and conduct.
This language, even if the terms were expanded and defined, may not deal with a number
of potential issues that may be relevant to your situation. For example:
89

Should there be more than one indemnitor? And if so, should it be joint and
several liability?

What losses and expenses are covered by the indemnity? Do attorney fees
incurred in enforcing the indemnification provision count?

What is the duration of the indemnity?

Do third parties have the right to enforce the indemnification provision?

Does the indemnity limit, or even eliminate, the right to pursue common law
remedies?

What are the procedural mechanisms by which the indemnitee is to enforce
the indemnity? 339
Retail Tenant and Landlord Issues
Retail tenants will try to limit their indemnity obligations as well, limiting their
indemnification obligations to losses arising out of the retail tenant’s negligence. Depending on
the bargaining power possessed by the tenant, tenants may wish to avoid phrases such as liability
arising in whole or in part in the indemnity provisions, and limit their indemnity obligations to
those for their own “sole” negligence.
Retail landlords and tenants must also consider the geographical scope of the indemnity
agreement. Indemnity agreements often specify that indemnification is owed for the leased
premises only, which depending on the definition of the premises in the lease, may omit the
doors and hallways immediately accessing the leased store. Landlords and tenants must properly
define the premises in the lease for this purpose. For example, what constitutes the common
areas? Some courts may include in the definition of the leased premises the ways of ingress and
egress that are for the sole use of the leased premises. To avoid confusion, indemnification
provisions should clearly detail the intended scope of indemnity (i.e. adjacent sidewalks, etc.)
and not rely solely on the premises description.
Leases generally mandate that the landlord be added as an additional insured on the
tenant’s policy for liability arising out of the leased premises and often provide that the landlord
is required to name the tenant as additional insured for liability arising out of common areas.
Also, if the landlord is responsible for repairs, a tenant should be wary of language in the lease
which indemnifies the landlord for property damage or injuries that occur due to poor
maintenance.
339
D. Hull Youngblood and Peter N. Flocos, Drafting and Enforcing Complex Indemnification Provisions, American
Law Institute, Practical Lawyer (August, 2010).
90
Indemnity in Construction
Specifically excluded from discussion in this section are construction contracts. The
construction industry is highly regulated and very specific rules and laws can and do apply to
construction contracts. Therefore, construction contracts need to be dealt with individually and
according to the particular rules and laws that govern the industry. Many states have antiindemnity statutes. For instance, in Illinois, when drafting a construction contract, a party cannot
be indemnified for its own negligence.
A summary of whether each state has an anti-indemnity statute, as it relates to
construction cases, is set forth in the chart below:
STATE BY STATE ANTI-INDEMNITY STATUTES
State
Sole
Negligence
Alabama
Alaska
Sole or Partial
Negligence
X
Arizona
X
(Private Work)
Arkansas
X
California
X
X
(Public Work)
Colorado
X
(See
Comments)
Connecticut
X
Delaware
X
D.C.
Florida
X
91
Closes A.I.
Loophole
Comments
No statute.
Alaska Stat. §
45.45.900. Except for
hazardous substances.
Ariz. Rev. Stat. §§ 321159, 34-226, 41-2586.
Except for entry onto
adjacent land.
A.C.A. §§ 4-56-104
(private) & 22-9-214
(public)
Civ. Code §§ 2782 et
seq. Except for entry
onto adjacent land.
Colo Rev. Stat. §§ 1321-111.5 (private)
(exception for contracts
pertaining to property
owned by railroads) &
13-50.5-102 (public)
Conn. Gen. Stat. § 52572k (P.A. 01-155).
(See comments) Del. Code, Title 6 §
2704. (Additional
insured requirement
may be unenforceable
but endorsement is not.)
No statute.
Fla. Stat. § 725.06. If
Georgia
X
(See comments)
Hawaii
X
Idaho
X
Illinois
Indiana
X
X
Iowa
Kansas
X
Kentucky
X
Louisiana
X
X
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the project is a private
property indemnity is
allowed if there is
monetary limitation and
reproduction in bid
documents.
GA. Code § 13-8-2 has
been gutted by
intermediate level
appellate courts creating
exception for hold
harmless obligations that
are insured.
Hawaii Rev. Stat. §
431:10-222.
Idaho Rev. Stat. § 29114.
Ill. Complied Stat. 740
ILCS 35/1-3.
Ind. Code § 26-2-5,
highway construction
exception
No statute.
Kansas Stat. § 16-121
(also bars additional
insured coverage for
negligence of the
additional insured); see
also Kansas Fairness in
Private Construction
Contract Act [SB 33
(2005)], § 3(b)(3) (bars
waivers of subrogation
on claims paid by
liability and workers’
compensation
insurance).
Kentucky Rev. Stat.,
chap 371.180.
La. Rev. Stat. §
38:2216.G only
protects prime
contractors on public
works. The Louisiana
Oilfield Indemnity Act,
La. Rev. Stat. Ann. §
Maine
Maryland
X
Massachusetts
X
Michigan
X
Minnesota
X
Mississippi
Missouri
9:2780, as applied has
been held to void both
hold harmless and
additional insured
clauses.
No statute.
Md. Code, Cts and Jdcl
Pro, §5-401.
Mass. Gen. Laws, ch.
149 § 29C.
Mich. Comp. Laws §
691.991
X
X
(See comments)
Montana
X
Nebraska
X
Nevada
New
Hampshire
X
X
93
Minn. Stat. §§ 337.01,
337.02
Miss. Code § 31-5-41.
Mo. Rev. Stat. §
434.100. Also contains
an exception for
construction work
pertaining to “railroads
regulated by the FRA.”
Montana Rev. Code §
28-2-2111 prohibits
requirements to “insure
or defend” but
authorizes owners and
contractors protective
liability coverage
(OCP), and project
management protective
liability coverage
(PMPL) and permits
indemnity for the
negligence,
recklessness, or
intentional misconduct
of a third party or of the
indemnifying party.
Neb. Rev. Stat. § 25-21,
187.
No statute.
N.H. Rev. Stat. § 338A:1 only prohibits
indemnity of design
professionals.
New Jersey
New Mexico
X
N.J. Stat. § 2A;40A-1.
X
N.M. Stat. § 56-7-1
prohibits requirements
to “insure of defend”
but authorizes OCP,
PMPL and indemnity
clauses limited to
extent of liability of
indemnifying party.
N.Y. Gen. Oblig. Laws
§ 5-322-1.
N.C. Gen. Stat. § 22B1.
N.D. Cent. Code 9-0802.1. Only applies as
between the contractor
and the owner for errors
or omissions of the
owner.
(See comments) Ohio Rev. Code §
2305.31. Split of
authority as to
applicability of statute
under additional
insured obligations.
X
Okla. Stat. § 15-221.
X
Ore. Rev. Stat. § 30.140
prohibits
subcontractor’s surety
or insurer from
indemnifying another’s
negligence.
Pa. Stat., Title 68, §
491, prohibits
indemnity of design
professionals only.
R.I. Gen. Laws § 6-341.
S.C. Code § 32-2-10.
X
New York
X
North
Carolina
North Dakota
X
Ohio
X
Oklahoma
Oregon
X
X
X
Pennsylvania
Rhode Island
South
Carolina
South Dakota
Tennessee
Texas
X
X
X
X
X
(Public works
only; injuries
94
S.D. Codified Laws §
56-3-18.
Tenn. Code 62-6-123.
Government Code §
2252.902. Civ. P&R
Code § 130.002 only
excluded)
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
X
X
X
X
X
Wyoming
prohibits indemnity of
design professionals.
Utah Code § 13-8-1
exception permits
indemnity of owner.
No statute.
Va. Code § 11-4-1.
Wash. Rev. Code §
4.24.115. Indemnity is
valid for current
negligence under
specific conditions.
W. Va. Code § 55-8-14.
Wis. Stat. § 895.447.
Does not apply to
workers’ compensation
or insurance contracts.
No statute.
Coverage
An indemnification clause is a promise to protect and defend another in the event a
particular set of circumstances, as outlined within the clause, occurs that leads to a loss, or
potential loss, suffered by another party. Coverage – usually in the form of an insurance policy –
provides the financial means to support and honor the promise to indemnify and defend.
Additional Insured
The amounts and types of coverage necessary can be different for each specific
circumstance. However, when looking through a contract, you should be looking for language
that provides the organization with protection outside of your own coverage provider.
Specifically, the contract language should provide that the vendor will purchase and maintain
coverage, in an agreeable amount, naming the organization as an “additional insured.” Also, to
protect the organization and your coverage provider further, the language should provide that all
coverage the vendor has agreed to provide will be primary with respect to claims made, and any
similar or additional coverage maintained by the organization will be excess to any coverage
carried by the vendor, including any excess coverage carried by the vendor. This way, the
organization’s coverage will only be affected if and when the resources of the vendor’s coverage
have been fully exhausted.
Proof of Coverage
It is also advisable to include language within the coverage clause that the vendor will
provide proof of coverage in the form of a “Certificate of Insurance,” naming the organization as
an “additional insured.” The Certificate should be provided prior to any performance under the
contract; however, if it is not given to the organization before work under the contract is
95
performed, the language should provide that the organization has not waived its right to such
protection. Moreover, if the vendor ultimately fails to procure the agreed upon coverage, the
clause should provide that the organization will be entitled to pursue a claim against the vendor,
including a claim for all attorneys’ fees and costs associated with such a claim.
Timing
Finally, documented on the Certificate of Insurance should be the relevant policy period
for which the coverage will be effective. Typically, the policy period covers a calendar year.
Therefore, depending on the term of the particular contract, the organization may need to request
subsequent Certificates of Insurance evidencing coverage for the appropriate time period.
Moreover, at the time the contract is executed, the organization should make certain the original
Certificate of Insurance provides for coverage beginning on day one of the contract and for a
reasonable time period thereafter. The organization needs to be aware of any lapses in coverage.
Below is an example of a coverage clause. While you may not find the exact wording
used below in your contracts, this provision is intended as an example of what you may find. As
with the indemnification clause, we recommend following the one-sided coverage requirement.
Therefore, if any claim or loss is asserted related to the Agreement, the vendor’s carrier will
defend and indemnify you against such a claim.
COVERAGE: Throughout the term of the Agreement, VENDOR shall purchase and maintain
professional liability coverage with limits of not less than $1,000,000 per occurrence and
$3,000,000 annual aggregate. VENDOR shall purchase and maintain comprehensive general
liability coverage for VENDOR and its parent companies/entities, affiliate company/entities,
directors, trustees, officers, employees, servants, volunteers, and agents with limits of not less than
1,000,000 per occurrence and $3,000,000 annual aggregate, adding ORGANIZATION as an
additionally covered party for any and all claims arising out of, or in association with, this
Agreement, including, but not limited to, the “services” provided by the VENDOR, and any and
all ongoing operations and completed operations. All such coverage shall be primary with respect
to claims made, and any similar or additional coverage maintained by ORGANIZATION shall be
excess to any coverage carried by VENDOR, including any excess coverage carried by VENDOR.
Before VENDOR is allowed on the ORGANIZATION’S premises, pursuant to this Agreement,
VENDOR shall furnish a certificate from its carrier and all endorsements evidencing compliance
with this Section, including a thirty (30) day written notice of cancellation or change of coverage.
Any failure on the part of the ORGANIZATION to insist upon the receipt of the Certificate of
Coverage and applicable endorsements is not a waiver of any rights that the ORGANIZATION
has under this Paragraph. In the event VENDOR fails to purchase or procure this said coverage,
as required above, the parties expressly agree that VENDOR shall be in default under this
Agreement, and that the ORGANIZATION may recover all attorneys’ fees and costs expended in
pursuing a remedy, or reimbursement, at law or in equity, against VENDOR. Lastly, VENDOR
shall purchase and maintain workers’ compensation coverage in an amount not less than the limits
required by law with employer’s liability coverage.
Examples
Like the examples above in the indemnification portion of this section, the following
examples were taken from real contracts, although some of the names have been changed to
protect all confidences. While the language used above may be preferable, most coverage
clauses within the contracts you will see on a day-to-day basis will likely not be very similar.
96
Therefore, the following examples are just a few ways a party may attempt to draft coverage
requirements within a contract.

Good Coverage Language
The first example provides good language requiring the manager to purchase and
maintain coverage naming the community as an additional insured, along with many of the other
areas discussed above, including the primary and non-contributory language.
2.6
Manager’s Insurance. Manager shall procure and maintain, at Manager’s expense
policies of insurance to insure itself and its employees for medical malpractice liability,
management errors and omissions liability, workers’ compensation, employees dishonesty
insurance, employment practice liability relating to Manager’s employees, automobile liability,
commercial general liability (including personal injury liability and contractual liability insurance)
and excess liability, adding Community as an additionally covered party for any and all claims
arising out of, or in association with, this Agreement. All such coverage shall be primary with
respect to claims made, and any similar or additional coverage maintained by Community shall be
excess to any coverage carried by Manager, including any excess coverage carried by
Community. Before Manager is allowed on Community’s premises pursuant to this Agreement,
Manager shall furnish a certificate from its carrier and all endorsements evidencing compliance
with this Section, including a thirty (30) day written notice of cancellation or change of coverage.
Any failure on the part of Community to insist upon the receipt of a certificate of coverage and
applicable endorsements is not a waiver of any rights that Community has under this Paragraph.
In the event Manager fails to purchase or procure this said coverage, as required above, the
parties expressly agree that Manager shall be in default under this Agreement, and that
Community may recover all attorneys’ fees and costs expended in pursuing a remedy, or
reimbursement, at law or in equity, against Manager.

Unfavorable Coverage Language
This second example does not provide much protection to the organization in that the
contractor has simply agreed to purchase and maintain coverage for its sole negligence.
Moreover, the coverage language does not provide that the client will be named as an additional
insured.
2.5
Insurance. CONTRACTOR will maintain (at its sole expense), or require the individuals it
provides under this Agreement to maintain, a valid policy or insurance evidencing general and
professional liability coverage of not less than $1,000,000 per occurrence and $3,000,000 in the
aggregate, covering the sole negligent acts or omissions of Personnel occurring in connection with
the provision of Services under this Agreement. CONTRACTOR or its sub-contractor will provide a
certificate of insurance evidencing such coverage upon request by CLIENT. CONTRACTOR and
any sub-contractor further agree to maintain any statutorily required worker’s compensation
insurance for all of its Personnel providing Services to CLIENT under this Agreement.
Certificates of Insurance
Along with the promise to indemnify and to purchase and maintain additional coverage
naming the organization as an “additional insured,” the vendor should produce a Certificate of
Insurance to the organization. A Certificate of Insurance is a document acknowledging that an
insurance policy has been written, and setting forth in general terms what the policy covers.340
340
Blacks Law Dictionary 256. (9th Ed. 2009).
97
Parties’ reliance on Certificates of Insurance as proof of coverage is misplaced. Despite
their widespread use as proof coverage, certificates of insurance do not establish that proper
insurance is in place. They are simply evidence of insurance, and the actual coverage is
determined by the policy language. The only way to confirm proper coverage is in place is to
obtain a copy of the policy. This is advantageous for two reasons. First, it allows the additional
insured to confirm that proper coverage is in place. Second, it gives the additional insured access
to the policy conditions. An additional insured has the same rights and obligations as the named
insured under a policy.
Most Certificates of Insurance used in the insurance industry are published by a company
called Acord. The forms produced by Acord are a convenient way of providing proof that an
organization has coverage under the vendor’s policy. However, the Acord forms do have some
limitations, and it is imperative to understand what information needs to be present on any
Certificate of Insurance. Along with the contract itself, the Certificate of Insurance should be
kept by the organization in its records for at least ten (10) years after the subject contract has
been completed. A claim may not arise until years after the relationship between the vendor and
the organization has ended. While a Certificate of Insurance is not absolute proof of coverage, it
is strong evidence that the vendor agreed to purchase and maintain such coverage on the
organization’s behalf.
In some cases, Illinois courts have found that conflicts between a Certificate of Insurance
and the insurance policy create ambiguity in the coverage, and that ambiguity is interpreted in
favor of providing coverage to the insured.341 However, a Certificate of Insurance may contain a
disclaimer indicating that it is for information purposes only, and does not modify the coverage
set forth in the policy. Where Certificates of Insurance contain these types of disclaimers and
limitations, Illinois courts frequently hold that the language of the policy, itself, must govern,
regardless of statements made in, or conflicts with, the certificate.342
The additional insured (organization) should ensure the following:

The vendor should update the organization with new certificates if the coverage
changes, or the policy period noted on the Certificate has ended.

The organization should request an endorsement from the insurance carrier, which
should evidence the specific coverage afforded, along with any exceptions or
limitations to coverage.

There should be a provision within the contract that requires the vendor to produce
the Certificate of Insurance before the contract begins and before the vendor is
allowed on the premises.
341
342
John Bader Lumber Co. v. Employers Insurance of Wausau, 110 Ill. App. 3d 247 (1982).
United Stationers Supply Co. v. Zurich American Insurance Co., 386 Ill. App. 3d 88 (2008).
98

Within the same clause, the contract should provide that the organization does not
waive any of its rights, including the right to coverage, if the vendor fails to produce
the Certificate of Insurance in a timely manner.

Along with the Certificate of Insurance, the contract should provide that the vendor
will purchase insurance and maintain coverage for the organization. Without such
contract language, even with a Certificate of Insurance, coverage would most likely
not be provided.

The organization should always request a copy of the policy
Examples
The following examples demonstrate the differences between a Certificate of Insurance
with additional insured language, a Certificate of Insurance simply naming your organization as
a Certificate Holder, and a document simply designed to demonstrate proof of coverage.
The first three examples, the Certificates of Insurance, are the types of documents that
you should be looking for. However, in the third example, you will see that your organization is
simply identified as a Certificate Holder, as opposed to an additionally insured party. The
organization’s name should be found in the lower, left-hand corner of the document titled,
“Certificate Holder.”
Moreover, there should be some explanation as to what type of coverage is provided and
any exceptions to the coverage listed in the box directly above the box that identifies the
Certificate Holder. Like the language in the first example, you should be looking for language
naming your organization as an “additional insured,” and that the coverage provided will be
primary as to any coverage carried by your organization. The last document in this section
merely provides evidence that the other party has insurance, not that its carrier will indemnify
and defend your organization.
99
Certificate of Insurance (Example #1)
Certificate of Insurance-Naming Your Organization as an Additional Insured
PRODUCER
THIS CERTIFIATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON
THE CERTIIFCATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND, OR ALTER THE
COVERAGE AFFORDED BY THE POLICES BELOW.
COMPANIES AFFORDING COVERAGE
INSURED
Vendor
123 South Street
C
O
TYPE OF INSURANCE
L
GENERAL LIABILITY
COMPANY A
ABC Insurance
COMPANY B
123 Insurance
POLICY
NO#
1068870604
EFFECTIVE
DATE
08/01/06
EXPIRATION
DATE
08/01/07
LIMITS
GENERAL AGGREGATE
Aggregate
$1,000,000
PRODUCTS COMP/OP
PERSONAL & ADV
EACH OCCURRENCE
FIRE DAMAGE (Any One
MED EXP (Any One Person)
COMBINED SINGLE
$1,000,000
$500,000
$1,000,000
$50,000
$5,000
$1,000,000
BODILY INJURY (Per
$
BODILY INJURY (Per
$
PROPERTY DAMAGE
Medical Payments
$5,000
X COMMERCIAL GENERAL
Claims Made
X
OCCU
OWNERS & CONTRACTORS
AUTOMOTIVE LIABILITY
X ANY AUTO
Physical
Damage
Deductibles:
Comp: $100
Coll: $500
ALL OWNED AUTOS
SCHEDULED AUTOS
HIRED AUTOS
NON-OWNED AUTOS
B
*The limits of liability shown reflect the limits at inception.
Producer does not assume any responsibility for notification in
the event of depletion of the aggregate.
1068870697
07/01/06
08/01/07
EXCESS LIABILITY*
7976-03-98
08/01/06
08/01/07
X UMBRELLA FORM
OTHER THAN UMBRELLA FORM
EACH OCCURRENCE
$5,000,000
AGGREGATE
$5,000,000
$10,000
A
A
WORKERS COMPENSATION AND
EMPLOYERS LIABILITY
1072602313
08/01/06
08/01/07
THE
PROPRIETOR/PARTNER
S/EXECUTIVE OFFICERS
ARE:
107602313
08/01/06
08/01/07
INCL
EXCL
OTHER PROPERTY
1068887064
08/01/06
X
WC
STATUT
ORY
LIMITS
EL EACH ACCIDENT
OTHER
$500,000
EL DISEASE POLICY
$500,000
EL DISEASE EA
$500,000
08/01/07
Blanket Limit: $150,000
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
Your Organization is an additional insured with respect to the General Liability policy and the coverage is primary
CERTIFICATE HOLDER
CANCELLATION
Your Organization
555 Main Street
Anywhere, IL 606005
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEROF,
THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER
NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OF LIABILITY OF
ANY KIND UPON THE COMPANY, ITS AGENS OR REPRESENTATIVES.
[Signature of Authorized Agent]
ACCORD 25-S (3/83) if you have any questions, please call (630) 773-0800
EXCONGL5FRP ACORD
100
Acord updates and revises their form Certificates of Insurance as needed. The form below
shows the most recent Acord Certificate of Liability Insurance, and again lists the Organization
as an additional insured.
Most Recent Certificate of Insurance (Example #2)
101
Certificate of Insurance (Example #3)
Certificate of Insurance- Simply Identifying Your Organization as a Certificate Holder
PRODUCER
THIS CERTIFIATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO
RIGHTS UPON THE CERTIIFCATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND,
OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
COMPANIES AFFORDING COVERAGE
INSURED
Vendor
123 South Street
Anywhere, IL 60611
CO
L
TYPE OF INSURANCE
COMPANY A
ABC Insurance
COMPANY B
123 Insurance
POLICY
NO#
1068870604
GENERAL LIABILITY
EFFECTIVE
DATE
08/01/06
EXPIRATION
DATE
08/01/07
LIMITS
GENERAL AGGREGATE
Aggregate
$1,000,000
PRODUCTS COMP/OP
PERSONAL & ADV
EACH OCCURRENCE
FIRE DAMAGE (Any One
MED EXP (Any One Person)
COMBINED SINGLE
$1,000,000
$500,000
$1,000,000
$50,000
$5,000
$1,000,000
BODILY INJURY (Per
$
BODILY INJURY (Per
$
PROPERTY DAMAGE
Medical Payments
$5,000
X COMMERCIAL GENERAL
Claims Made
X
OCCU
OWNERS & CONTRACTORS
AUTOMOTIVE LIABILITY
X
ANY AUTO
ALL OWNED AUTOS
SCHEDULED AUTOS
HIRED AUTOS
NON-OWNED AUTOS
B
EXCESS LIABILITY*
X
*The limits of liability shown reflect the limits at inception.
Producer does not assume any responsibility for notification in
the event of depletion of the aggregate.
1068870697
Physical
Damage
Deductibles:
Comp: $100
Coll: $500
07/01/06
7976-03-98
08/01/06
08/01/07
08/01/07
UMBRELLA FORM
OTHER THAN UMBRELLA FORM
EACH OCCURRENCE
$5,000,000
AGGREGATE
$5,000,000
$10,000
A
A
WORKERS COMPENSATION AND
EMPLOYERS LIABILITY
1072602313
08/01/06
08/01/07
THE
PROPRIETOR/PARTNER
S/EXECUTIVE OFFICERS
ARE:
107602313
08/01/06
08/01/07
INCL
EXCL
OTHER PROPERTY
1068887064
08/01/06
X
WC
STATUT
ORY
LIMITS
EL EACH ACCIDENT
OTHER
$500,000
EL DISEASE POLICY
$500,000
EL DISEASE EA
$500,000
08/01/07
Blanket Limit: $150,000
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
Your Organization is a Certificate Holder with respect to the General Liability policy in conjunction with this Agreement.
CERTIFICATE HOLDER
CANCELLATION
Your Organization
555 Main Street
Anywhere, IL 606005
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
EXPIRATION DATE THEROF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 30 DAYS
WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO
MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OF LIABILITY OF ANY KIND UPON THE
COMPANY, ITS AGENS OR REPRESENTATIVES.
[Signature of Authorized Agent]
ACCORD 25-S (3/83) if you have any questions, please call (630) 773-0800
EXCONGL5FRP ACORD
Again, looking at the examples above, your organization’s name should be located in the
box identified as “CERTIFICATE HOLDER” and the description of the coverage provided
should be included in the box immediately above labeled, “Description of Operations/ Locations/
Vehicles/ Exclusions Added by Endorsement/ Special Provisions.”
102

Proof of Insurance
The following is an example of a “proof of insurance.” While proof of insurance is
certainly important, it is more important that the other party provide proof that the organization
has also been named as an “Additional Insured” on the vendor’s insurance policy. Proof of
insurance simply demonstrates that the other party carries insurance, but does not evidence the
organization’s right to submit a claim to that carrier. Proof of insurance and proof that the
organization has been identified as an “additional insured” provides evidence that the other party
not only carries insurance, but that the insurance policy will protect your organization, as well.
Budget ZZ153
Fund 068
Certificate of Proof of Liability Insurance
Licensed Personal Emergency Response System (PERS) Provider
Texas Department of State Health Services – Professional Licensing and Certification Unit
Mail this completed form to;
PERS Licensing Program
Telephone (512) 834-6602
Texas Department of State Health Services
Fax
(512) 834-6677
1100 West 49th Street MC-1982
E-mail
pers@dshs.state.tx.us
Austin, Texas 78756-3183
Website
http:/www.dshs.state.tx.us/pers
Name of Insured:_______________________________________________________________________________
(Name of Insured must appear exactly as in the records of Texas Department of State Health Services or the license application form.)
Address of Insured: _______________________________________________________________________________
(Address of Insured must appear exactly as in records of Texas Department of State Health Services or on license application form.)
PERS License Number of Insured (Put N/A if license not yet issued): _____________________________________________
Name of Insurance Company: ___________________________________________________________________________
Policy Number: _______________________ Effective Date: _______________ Expiration Date: _______________
Limits of Liability
Bodily Injury/Property Damage: __________________________________________________________________________
Personal Injury: _______________________________________________________________________________________
Aggregate: ___________________________________________________________________________________________
Type of Insurance (Circle One):
Commercial
General Liability
The insurance company hereby states that it has issued to the insured named hereon a policy of insurance to meet the requirements of Texas Health and Safety Code, Chapter
781 (formerly Texas Occupations Code, §1702.124). It is understood that the provisions of that statute require a licensed PERS provider to maintain on file with the Texas
Department of State Health Services a Certificate of Insurance as proof of a policy of public liability insurance executed by a local agent licensed in the state of Texas or a
Certificate of insurance as proof of surplus lines coverage obtained under Article 1.14-2, Texas Insurance Code, through a licensed Texas surplus lines agent resident in Texas.
The law provides that the insurance policy must contain minimum limits of $100,000.00 per occurrence for bodily injury and property damage and $50,000.00 for each
occurrence for personal injury, with a minimum total aggregate amount of $200,000 for all occurrences. There shall be no exclusions to any coverage required of State Health
Services to determine fitness and qualifications for a license as a Personal Emergency Response System Provider in Texas. This certificate does not amend, extend, or alter
the coverage afforded by the policies listed.
Insurance Agent’s Printed Name: _________________________________________________________________________
Insurance Agent’s Signature and Date: ____________________________________________________________________
Address: ____________________________________________________________________________________________
City, State, Zip ________________________________________________________________________________________
Texas Insurance License Number: ______________________________ Telephone Number: _________________________
NOTE: No other form or document will be accepted as proof of insurance.
With few exceptions, you have the right to request and be informed about information that the State of Texas collects about you. You are entitled to receive and review the
information upon request. You also have the right to ask the state agency to correct any information that is determined to be incurred. See http://www.dshs.state.tx.us for more
information on Privacy Notification. (Texas Government Code, Section 522.021, 522.023 and 559.004)
Paper Publications Number F02-12272
PERS Certificate of Proof of Liability Insurance
103
When to Tender
Following an accident, and before any claim is made, a party should proactively
determine sources of potential indemnification. The first step is to gather information and
conduct an investigation. Identify and interview any witnesses to the accident. Secure any
objects that were involved in the accident, and place the objects in safekeeping.
As part of the investigation, information should be gathered regarding potential causes of
the accident, including any unusual circumstances. Contemporaneous with the investigation, the
relevant contracts should be obtained and reviewed to determine whether the accident potentially
falls within the scope of indemnity. Likewise, insurance information, including policies on which
the store may be an additional insured, should be reviewed and all possible carriers placed on
immediate notice of the occurrence.
If the investigation indicates that the accident may fall within the scope of the indemnity
agreement, even before a lawsuit is filed, the indemnitee should place the potential indemnitors
on notice of the loss and the basis for indemnity. To be safe, it is best to tender to any possible
indemnitor or responsible party.
Determination of the Duty to Defend
As Illinois courts have long held, once the duty to defend is found to exist with respect to
some of the allegations contained in the underlying complaint, the insurer must defend the
insured with regards to all of the allegations contained in the complaint, including those that may
be uncovered.343
To determine whether an insurer has a duty to defend its insured in a lawsuit, a court
should generally apply an “eight corners rule” – that is, the court should compare the four
corners of the underlying tort complaint with the four corners of the insurance policy and
determine whether the facts alleged in the underlying complaint fall within, or potentially within,
the insurance policy’s coverage. 344 This general rule has been applied in numerous Illinois cases
and one line of cases precludes the consideration of any facts outside the allegations of the
complaint. There is, however, another line of cases that follows the “true but unpleaded facts”
doctrine. Under this line of cases, the insurer must consider facts in its possession at the time of
the tender and if those facts suggest that there might be coverage, the insurer is obligated to
accept the tender of the defense. There is some disagreement as to whether the insurer must
consider facts supplied to it by other parties versus facts obtained by its own investigation. The
former facts are sometimes considered to be suspect. There are several that are all in agreement
with respect to their holdings that the allegations of a third party complaint must be considered
by the insurer in determining its duty to defend.
The Illinois Supreme Court has recently decided this controversy in its holding in Pekin
Insurance Co. v. Wilson, where the Court authorizes judges in coverage cases to look beyond the
allegations in a tort plaintiff’s complaint when determining whether the duty to defend is
343
344
National Union Fire Ins.Co. of Pittsburgh, Penn. v. Glenview Park District, 158 Ill.2d 116, 124 (Ill. 1994).
Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill.2d 384, 620 N.E.2d 1073 (1993).
104
triggered under an insurance policy.345 For instance, the Court may now look to the language of
a subcontractor agreement to determine whether the allegations state facts which bring the case
within, or potentially, within the policy’s coverage. Pekin Insurance Co. succeeded in many
coverage disputes, prior to Wilson, because tort complaints did not allege that the additional
insureds were vicariously liable for the conduct of the named insureds. Therefore, if an
insurance provider has a policy which limits coverage to cases where the additional insured was
liable “solely as a result of some act or omission of the named insured and not for its own
independent negligence or statutory violation,” the insurance company would have won in those
disputes prior to Wilson.
One of the earlier cases to articulate the “true but unpleaded facts” doctrine was La
Rotunda v. Royal Glove Insurance Co., in which the court held that there is a duty to defend
where “true but unpleaded facts” possessed by the insurer and known to be true were discovered
during its own investigation. 346 The court held that Royal Globe had a duty to defend where the
results of its own investigation disclosed the true but unpleaded fact that all of the land in
question was not used as a junkyard or refuse dump. Therefore, smoke from the land, which
caused a driving accident on a neighboring road, might have come from the vacant part of the
land and not the junkyard, making the business exclusion in Royal Globe’s policy inapplicable.
The doctrine requiring the consideration of evidence outside the complaint was applied
when a court ruling on the coverage issues considered allegations in the third party complaint for
contribution.347 In this case, a carpenter employed by a subcontractor, was injured at a
construction site. The carpenter filed a complaint against the general contractor, Sundance
Homes, which was insured by Great American Insurance Companies. Sundance Homes was an
additional insured under a West Bend policy issues to the general contractor. West Bend refused
to defend Sundance, “maintaining that the complaint contained no allegation imputing liability to
Sundance as a result of the actions or conduct of [the general contractor].” In a Declaratory
Judgment action brought by West Bend, the court considered Sundance’s third party complaint
against the general contractor for contribution as well as statements by co-workers finding that
“this evidence raised the possibility that Szarek may also have been at fault.” 348 The court held
that West Bend had a duty to defend Sundance Homes.
Two recent cases followed the same doctrine. These two cases found that the allegations
of a third party complaint and other facts known to the insurer had to be considered and gave rise
to a duty to defend. For example, in American Economy Ins. Co. v. DePaul University, the
complaint filed against DePaul did not mention Metrick’s installation of the lighting that
allegedly caused the Plaintiff’s injuries, but the third party complaint filed by DePaul against
Metrick did.349 The court rejected American Economy’s assertion that no evidence beyond the
allegations of the original complaint could be considered in determining the duty to defend. The
court also noted that, “In addition to the third party complaint, true but unpleaded facts should
have alerted American Economy to the possibility that Metrick installed the lighting.”350
345
237 Ill.2d 446, 903 N.E.2d 1011 (Ill. 2010).
87 Ill. App. 3d 446, 408 N.E.2d 928 (1980).
347
West Bend Mutual Ins. Co. v. Sundance Homes, Inc., 238 Ill. App. 3d 335, 606 N.E.2d 326 (1992).
348
West Bend, 238 Ill. App. 3d at 337.
349
383 Ill. App. 172, 890 N.E.2d (2008).
350
Id.
346
105
The court also reiterated the principle stated in numerous Illinois decisions, that “the
phrase ‘arising out of’ is ‘both broad and vague’, and must be liberally construed in favor of the
insured; accordingly, ‘but for’ causation, not necessarily proximate causation, satisfies this
language.” 351
Similarly, in American Economy Insurance Co. v. Holabird and Root, the insurer for an
electrical subcontractor brought a declaratory judgment action against general contractor seeking
to establish that it had no duty to defend or indemnify the general contractor in an action brought
by an individual who worked in a building and who alleged that she was injured by exposure to
unfiltered ultraviolet light from fluorescent lighting.352 The appellate court held the court could
consider the contractor’s third party complaint against the subcontract to determine the duty to
defend and that the insurer had a duty to defend the general contractor. This case relied on a
long line of Illinois cases that have held that in some circumstances an insurer may or must look
at extrinsic evidence it its possession in determining whether it has a duty to defend, stating,
“Even though the complaint standing alone, may not fairly apprise the insurer that the third party
is suing the putative insured on an occurrence potentially within the policy’s coverage, the
insurer is obligated to conduct the putative insured’s defense if the insurer has knowledge of true
but unpleaded facts, which, when taken together with the complaint’s allegations, indicate that
the claim is within or potentially within the policy’s coverage.” 353
What is Considered Late Notice to the Insurer?
The purpose of a notice requirement in an insurance policy is to provide insurance
carriers with an adequate opportunity to (1) investigate claims brought against their
policyholders, (2) to prevent fraudulent claims, and (3) to determine their rights and liabilities
before they are obligated to pay a claim.354 The notice requirement provides the insurance carrier
with an opportunity to make a timely and adequate investigation of the circumstances
surrounding the incident to minimize or avoid liability.
If a policy states that the insurer be notified “as soon as practicable,” an Illinois court will
likely rule that notice must be provided within a reasonable time.355 Under Illinois law, the
determinative issue is whether notice was timely considering all the facts and circumstances
and/or whether there was a recognized legal excuse for the delay. 356 The insurer does not have
to show that it was prejudiced by the delay. While the absence of prejudice can be considered as
a factor in determining reasonableness, prejudice has never been the key issue in Illinois.357
However, there are other states which require that the insurance carrier suffered prejudice as a
result of the delay.
351
Id. citing Maryland Casualty Co. v. Chicago & Northwestern Transportation Co., 126 Ill. App. 3d 130, 466 N.E.2d
1091 (1984); see also, Casualty Ins. Co. v. Northbrook Property & Casualty Ins. Co., 150 Ill. App. 3d 472, 50 N.E.2d
82 (1986).
352
382 Ill. App. 3d 107, 886 N.E.2d 1166 (2008) appeal allowed 229 Ill.2d 617, 897 N.E.2d 249 (2008).
353
Id. citing, Associated Indemnity Co, of North America, 68 Ill. App. 3d 807, 386 N.E.2d 529 (1979).
354
See Couch on Insurance 3d, § 186:14.
355
Northern Insurance Company of New York v. City of Chicago, 325 Ill. App. 3d 1086, 1091 (1st Dist. 2001).
356
Id.
357
Twin Cities Fire Insurance Co. v. Old World Trading Co., 266 Ill. App. 3d 1, 708 (1994).
106
An additional defense to a late notice position by an insurance carrier is that the carrier
had “actual notice” of the lawsuit, which was sufficient to preserve its position. An additional
insured may assert that the carrier had notice of the lawsuit through its own insured. Therefore,
any alleged late notice provided by the additional insured should not bar coverage because there
is no prejudice to the carrier.
Other factors to consider in determining whether the notice was late include the language
of the notice provision, the insured’s sophistication in commerce and insurance matters, its
awareness that a suit was pending, and, once aware, its diligence in ascertaining whether policy
coverage is available.358 In Northern Insurance, for example, the City of Chicago waited two
and half years after suit was filed against it to notify the insurance carrier for one of its
contractors under whose policy the City was entitled to coverage as an additional insured. The
underlying suit involved a plaintiff who tripped on a defective sidewalk that had been installed
by the contractor. The court looked not to whether Northern, the carrier, had been prejudiced,
but whether the City had a justifiable excuse for its delay. Because the City’s delay was
unreasonable, in light its sophistication and experience with claims of this nature, the court
upheld Northern’s denial of coverage based on late notice. 359
The court’s determination of an insured’s reasonableness in its delay to notify its insurer
is, again, dependent upon the facts and circumstances of the case it issue. In contrast to the
court’s holding in Northern Insurance, for example, in Brotherhood Mutual Insurance Co. v.
Roseth, the court held that the insured’s two year delay in providing notice of a claim to its home
owners’ carrier was justified under the circumstances.360 In Rseth, the court concluded that it
was not unreasonable for the insured, a relatively unsophisticated homeowner, to two years after
causing an injury, until suit was filed against him, to notify its insurer of the claim. The court
also considered the fact that insured had mistakenly believed that the incident would not be
covered under the insurer’s policy, and had acted diligent in providing notice upon receipt of the
suit. 361
Waiver of Subrogation
In some instances, your organization will be compelled to maintain coverage for another
party. While certainly not advisable, this can happen when the organization occupies and
controls another party’s property (i.e. lease), or if the negotiation process does not favor the
organization. Therefore, in contracts that your organization has agreed to maintain coverage for
both the organization and the other party, it will be important to look for a term within the
contract that would waive the organization’s ability, through its coverage provider, to pursue a
subrogation claim against the other party.
In the event of a loss, if the organization has agreed to cover the other party, the
organization’s coverage provider will be forced to cover the loss, even if it was caused by the
negligence of the other party. If the contract also contains a waiver of subrogation clause, the
358
Id. citing Northbrook Property, 313 Ill. App. 3d 457, 466 (2000).
Id.
360
177 Ill. App. 3d 443 (1st Dist. 1988).
361
Id.
359
107
organization’s coverage provider will have no recourse to recoup these funds from the at-fault
party. However, without the waiver of subrogation clause, the organization’s coverage provider
would be free to pursue a claim against the at-fault party.
Examples
The following is an example of a Waiver of Subrogation Clause. This provision provides
that the organization will have the right to pursue subrogation if its coverage is affected, but the
vendor will not have the same opportunity. Very often, vendors will not agree to such language.
Therefore, we normally would recommend striking these provisions, unless, of course, there is
little to no chance that your coverage provider will offer coverage under the given circumstances.
If, on the other hand, the organization’s coverage may be affected, it is best to simply strike
any waiver of subrogation provision within the contract. The following is an example of a
stricken Waiver of Subrogation Clause:
To the extent damages are covered by insurance during the course of this agreement, the Owner
and the Vendor waive all rights against each other and against the employees and agents of the
other for damages, except such rights as they may have to the proceeds of such insurance as set
forth in this agreement. The Owner or Vendor, as appropriate, shall require similar waivers in
favor of the other parties enumerated herein from any and all parties affiliated with them.
The waiver of subrogation clause below provides that the vendor (Third-Party, Inc.) will
waive its right to pursue subrogation against your organization for damages covered by
insurance. This clause is beneficial if the insurance provision in the agreement requires the
vendor to purchase and maintain coverage naming your organization as an additional insured. In
the event of a loss, the insurance purchased by the vendor would cover the loss and the carrier
would not be able to pursue a subrogation claim against your organization, even if the loss was
caused by your wrongful conduct.
Waiver of Subrogation: Third-Party, Inc., waives all rights against the Organization for damages
caused by any peril to the extent covered by insurance provided under the insurance requirements
of this Agreement. Third-Party, Inc., shall require similar waivers by Subcontractors and SubSubcontractors. All insurance policies required hereunder shall permit and recognize such
waivers of subrogation.
The last example of a waiver of subrogation clause provides that neither party, including
each party’s coverage provider, may pursue the other party if there is insurance to cover a
claimed loss. As noted above, we only recommend the following language if the organization’s
coverage provider is not at risk for covering any losses under contract.
Insurance Subrogation: No indemnity shall be paid to the other Party under this Agreement
where the claim, damage, liability, loss or expense incurred would have been covered by
insurance proceeds if the incident was or was required to be insured against by such other Party
for whose benefit such indemnity would run and such Party failed to maintain such insurance.
Community and Manager shall exercise their commercially reasonable efforts to cause any
insurance policies obtained by the Parties pursuant to this Agreement to have the effect of waiving
any right of subrogation by the insurer of one party against the other Party or its insurer. Each
Party hereby releases the other from any claims to the extent covered by collected insurance
proceeds obtained by the Parties pursuant to this Agreement.
108
CRIMINAL ACTS OF THIRD PARTIES
A landowner or operator can be held liable for the violent, criminal acts of third parties
that injure its patrons. This section is particularly applicable for land owners or occupiers that
operate taverns, night clubs, stadiums or other venues where alcohol is served or where security
is utilized, and where the threat of fights between patrons is present. In order to better protect
itself from potential liability, it is important for a landowner or occupier to understand the law as
to when it may potentially owe a duty to its patrons to protect them against the criminal acts of
third parties, so that the proper policies and procedures can be implemented.
General Rule
Generally, a possessor of land owes no duty to protect lawful entrants from criminal
attacks by third parties while on the premises. However, the law recognizes an exception to the
general rule where the landowner and the entrant stand in a special relationship with one another,
which warrants the imposition of such a duty. The applicable special relationship for purposes of
a retail owner is that between businesses that are open to the general public and its customers or
“invitees.”362 Courts have recognized that the rationale behind this exception is that, generally
speaking, retail establishments are in the position of knowing the extent of crime on its premises
and, therefore, should be held to owe a duty to take measures to prevent such criminal activity.
The existence of a special relationship is not, by itself, enough to impose a duty upon the
business owner to protect against the criminal acts of third parties. As with any other claim for
negligence, to determine whether a duty exists, the court looks to the following factors:
(1)
(2)
(3)
(4)
the reasonable foreseeability of the injury;
the likelihood of injury;
the magnitude of the burden of guarding against the injury; and
the consequences of placing that burden on the defendant.363
Put more simply, the existence of a duty will be imposed on a landowner if the plaintiff can
show: (1) the plaintiff was lawfully on the defendant’s premises (i.e. they are not trespassing);
and (2) that the criminal attack was reasonably foreseeable.364 The question as to whether a duty
exists is a question of law for the court to decide after analyzing all of the relevant facts of a
particular case.365 Because everyone can foresee the commission of a crime virtually anywhere at
any time, the question is not simply whether a criminal attack is foreseeable, but whether a duty
exists to take measures to guard against it.
In determining whether an attack is reasonably foreseeable, courts have consistently
required evidence of either: (1) actual knowledge by the business owner of a propensity for
violence on part of the plaintiff’s assailant; or (2) actual knowledge by the business owner of a
362
Restatement (2d) Torts Sec. 344 (1965).
Bodkin v. 5401 S.P., 329 Ill.App.3d 620, 768 N.E.2d 194 (1st Dist. 2002).
364
Id.
365
Hills v. Bridgeview Little League Association, 195 Ill.2d 210, 745 N.E.2d 1166, 253 Ill. Dec. 632 (Ill. 2001).
363
109
danger inside the establishment, such as a prior fight involving the plaintiff’s assailant. In other
words, the plaintiff must establish that it was objectively reasonable for the business owner to
expect the incident, not merely that it was conceivable that a criminal attack might occur.366
Existence of a Special Relationship
Where the landowner is operating a business on the premises, and the entrant is a
business invitee, the parties have a special relationship that may give rise to a duty for the
landowner to protect the entrant from attacks by third parties, provided any such attack is
reasonable foreseeable.367 A person is considered a business invitee on the land of another if: (1)
the person enters the premises by express or implied invitation; (2) the entry is connected with
the owner’s business or with an activity conducted by the owner on the land; and (3) the owner
receives a benefit.368 Generally speaking, any individual that enters a business establishment that
is open to the public will be considered a business invitee for as long as they remain on the
premises.
An example of a case in which the patron was no longer considered an invitee, is B.C. v.
J.C. Penney Company, Inc.369 In B.C., the court found no special relationship between a retail
establishment and its customer, who was abducted from a shopping center’s parking lot after
shopping in defendant’s retail store. The plaintiff was later beaten and raped in a construction
site within the shopping center. Plaintiff argued that she was a business invitee with respect to
the shopping center so that she must also be treated as the store’s invitee, one of the recognized
special relationships. The court rejected this argument and concluded that the complaint alleged
prior criminal acts occurring only in the shopping center parking lot, thus justifying a claim
against the shopping center’s owners, but could not extend the same duty on the retail store, as
neither she nor her attacker were ever on the retail store’s premises.
Reasonable Foreseeability
Illinois case law is clear that, while a business owner has a duty to protect its patrons
from the criminal acts of third parties, such duty arises only when said acts are “reasonably
foreseeable.”370 While the question as to whether a duty exists is a legal question, courts look to
the facts of each individual case to determine whether the third party’s act was foreseeable so as
to give rise to a duty of the part of the defendant. Generally, in order for an attack to be deemed
reasonably foreseeable, the owner or occupier must have actual knowledge the plaintiff’s
assailant has been involved in, or has a reputation for, violent behavior.
366
Landeros v. Equity Property and Development, 321 Ill. App. 3d 57, 747 N.E.2d 391 (1st Dist. 2001).
Lucht v. Stage 2, Inc., 239 Ill.App.3d 679, 606 N.E.2d 750 (4th Dist. 1992).
368
Sameer v. Butt, 343 Ill. App. 3d 78, 796 N.E.2d 1063 (1st Dist. 2003).
369
205 Ill. App. 3d 5, 562 N.E.2d 533, 150 Ill. Dec.3 (1st Dist. 1990).
370
Sameer, 343 Ill. App. 3d at 89; Gill v. Chicago Park District, 85 Ill. App. 3d 903, 407 N.E.2d 671 (1st Dist. 1980);
Costa v. Gleason, 256 Ill, App. 3d 150, 628 N.E.2d 199 (1 st Dist. 1993); Lutz v. Goodlife Entertainment, Inc., 208
Ill.App.3d 565, 567 N.E.2d 477 (1st Dist. 1990); Bodkin v. 540 S.P. Inc., 329 Ill. App. 3d 620, 768 N.E.2d 194 (1st
Dist. 2002).
367
110
In Gill, for example, the plaintiff was attending a Bears game at Soldier Field.371 At one
point in the game, he left his seat to go to the restroom and felt a hand reaching for his money
clip as he walked down the aisle. When he looked to see what was happening, two men jumped
up and threw him over a railing and to the ground, resulting in serious injury to the plaintiff.
The plaintiff filed suit against the Chicago Park District, the Chicago Bears, and Andy Frain.,
Inc., as the owner, lessee, and security personnel of Soldier Field, claiming that they were
negligent in failing to warn him of the danger of violent attacks by unruly spectators and in
failing to provide adequate security to guard against such attacks. The court found that, while
the plaintiff was a business invitee on the property, the plaintiff presented no evidence to show
that the attack on him was reasonably foreseeable to any of the defendants. The attack was
unprovoked and without warning to either the property owner or security personnel. As such,
summary judgment was granted in favor of the defendants.
The same principles articulated in Gill have also been applied in the context of
negligence actions filed against tavern owners for injuries resulting from the criminal acts of
third parties. In Lutz v. Goodlife Entertainment, the plaintiff filed suit against the defendant after
he was beaten by another patron at the defendant’s nightclub.372 The plaintiff had been dancing
on the club’s dance floor when he casually bumped into another, unidentified man. The plaintiff
apologized, but the unidentified man proceeded to punch the plaintiff in the nose, without any
threats or warning. Witnesses reported that the unidentified man had been at the club for a
while, but had not given any indication that he would cause any trouble. The plaintiff was
clearly a business invitee, but because the unidentified man’s attack was not foreseeable, the
court found that the defendant had no duty to protect the plaintiff from the attack. In reaching
this ruling, the court noted that foreseeability is determined based on the facts and circumstances
of each case, and in this case, the business owner had no knowledge that the attacker was
dangerous prior to his striking the plaintiff.
In Sameer v. Butt, the lack of foreseeability of the attack on the plaintiff also resulted in a
finding of no duty on the part of the defendant business owner.373 The plaintiff, Sameer, was
attending a concert/dance at the Aragon Ballroom, in Chicago. The event had recently ended,
but people were still present in the ballroom. Shortly before the plaintiff left, several other
patrons had engaged in an altercation, which involved one man being dragged outside and
stabbed, unbeknownst to the building owner or security company. As the plaintiff left, he was
also stabbed. The plaintiff sued the Ballroom’s owner, asserting that his attack should have been
foreseeable and that the owner was negligent in failing to provide security for the event. The
court, however, rejected these arguments, noting that no evidence had been presented to suggest
that the property owner or security guards were aware of the prior altercation. The court stated
that the question of foreseeability “is not simply whether a criminal event is foreseeable, but
whether a duty exists to take measures to guard against it,” which is a question of fairness. 374 It
is not simply enough to say that criminal acts, in general, are foreseeable because “anyone can
foresee the commission of a crime virtually anywhere and at any time.”375
371
Gill v. Chicago Park District, 85 Ill. App. 3d 903, 407 N.E.2d 671 (1st Dist. 1980).
Lutz v. Goodlife Entertainment, Inc., 208 Ill. App. 3d 565, 567 N.E.2d 477 (1st Dist. 1990).
373
Sameer v. Butt, 343 Ill. App. 3d 78, 796 N.E.2d 1063 (1st Dist. 2003).
374
Id. at 86.
375
Id.
372
111
Knowledge of a Propensity for Violence
In Illinois, evidence that a landowner had actual knowledge of the aggressive background
of one of its customers may give rise to a duty to protect its patrons by excluding a known
aggressor from the premises.376 Where an owner of an establishment has no actual knowledge of
the propensity for violence of a patron, courts have refused to impose a duty on owners to inquire
in the community about the character of their potential customers.377 Such a duty would not be
justified by the likelihood of injury, the magnitude of the burden of guarding against it, and the
consequences of placing that burden on the defendant.378
For example, in Lucht v. Stage 2, Inc., the defendant tavern owner was found liable to the
plaintiff for injuries the plaintiff sustained when he was attacked by another patron of the
tavern.379 In Lucht, however, unlike the cases discussed above, the defendant was on notice of
the attacker’s propensity for violence. The plaintiff was present at the defendant’s bar with
several friends. The plaintiff’s friend became involved in an argument with another man at the
bar, who was also there with friends. A security guard in the bar broke up the argument, but did
not require anyone to leave the bar. Several minutes later, the man involved in the argument
approached the plaintiff directly, nodded to a friend, and the man’s friend struck the plaintiff in
the face. The evidence also showed that the plaintiff’s assailant and his friend were known by
the defendant’s employees to be troublemakers who had previously started arguments and fights.
Based on the defendant’s knowledge of the assailant’s reputation and prior conduct, coupled with
the earlier altercation, the court found that the attack on the plaintiff was reasonably foreseeable
so as to give rise to a duty for the defendant to protect the plaintiff from attack.380
Evidence of Prior Criminal Activity to Impose Notice
Evidence of prior occurrences of violent or aggressive behavior at an establishment can
also create a duty to protect against the criminal acts of third parties. Specifically, a history of
violence on the premises may give rise to a duty to provide security at an establishment.381
However, general allegations of crime are not enough to establish foreseeability; rather, the
plaintiff must come forth with specific and competent evidence of a history of multiple, severe
attacks before a duty to protect can be imposed.382 The prior criminal activity need not be
exactly the same, but the plaintiff’s injury must have resulted from the same risk as was present
in the prior incidents of criminal activity.383
For example, in Duncavage v. Allen, the plaintiff was injured when she was attacked by
an intruder that gained access to her apartment through an unlocked window in the apartment
building, via a ladder. Evidence was presented that the defendant had actual knowledge that the
376
Lutz v. Goodlife Entertainment, Inc., 208 Ill. App. 3d 565, 567 N.E.2d 477; Davis v. Allhands, 268 Ill. App.
3d 143, 643 N.E.2d 865 (4th Dist. 1994).
377
Lutz v. Goodlife Entertainment, Inc., 208 Ill. App. 3d 565, 567 N.E.2d 477; Davis v. Allhands, 268 Ill. App. 3d 143,
643 N.E.2d 865 (4th Dist. 1994).
378
Id.
379
Lucht v. Stage 2, Inc., 239 Ill. App. 3d 679, 606 N.E.2d 750 (4th Dist. 1992).
380
Id. at 678.
381
Davis v. Allhands, 268 Ill. App. 3d 143, 643 N.E.2d 856 (4th Dist. 1995).
382
Popp v. Cash Station, Inc., 244 Ill. App. 3d 87, 613 N.E.2d 1150 (1st Dist. 1992).
383
Petrauskas v. Wexenthaller Realty Management, Inc., 186 Ill. App. 3d 820, 542 N.E.2d 902 (1st Dist. 1989).
112
plaintiff’s assailant entered an apartment through the same unlocked window and with the same
ladder in the past.384 The court held that these facts were sufficient to charge the defendant with
notice.385 Similarly, in Stribling v. Chicago Housing Authority, the defendant was held liable for
the criminal acts of third parties when it had prior notice that criminals were gaining access to
apartments by demolishing walls between the apartments in vacant units.386
In addition, the Illinois Appellate Court recently addressed the type of specific and
competent evidence that a plaintiff must present regarding a history of crimes or violence on the
premises in order to give rise to a duty on the part of a premises owner to provide security. In
Watson v. Plocher Construction Company, the plaintiff was a trucker driving through a
construction zone at 2:30 a.m. when he struck the basket of a crane that had been hanging very
low over the road.387 After an investigation, it was determined that the manlift that caused the
damage had been moved the previous morning by an unknown individual that had unlawfully
gained access to the property. The defendant testified that it was responsible for securing the
construction site and that all of its employees were in charge of safety and security.
In determining that the premises had a history of crimes and that there were foreseeable
risks of theft and vandalism at the construction site, the court relied on testimony from the
employees of the defendant. The defendant employees testified that: (1) the trailers on the site
were regularly locked and secured with a six-foot fence to prevent theft; (2) the crime rate was
higher in Chaokia/Entreville, where the accident occurred, than it was in the adjacent counties;
(3) theft and vandalism occurred in high-crime areas and it was necessary to take extra steps to
secure equipment in those areas; (4) there was a rundown neighborhood within one-half mile
from the construction site; and (5) the area was littered with beer cans and cigarette butts, all of
which were visual clues of possible trespassing there. The court further noted this evidence was
sufficient to impose a duty on the defendant to provide security, as the defendant was in the best
position to guard against criminal activity and control the construction site and all of the
equipment. Thus, the court in Watson elaborated on the type of specific and competent evidence
of prior crimes or violence that a plaintiff must present in order to give rise for a defendant to
provide security.
However, simply being located in a high crime area is not enough to put the business
owner on notice of a criminal attack.388 In Petrauskas v. Wexenthaller Realty Management, Inc.,
the plaintiff filed suit against the defendant for injuries sustained when she was raped on
defendant’s property. She alleged that the landowner was on notice of a dangerous condition in
that the building was in a “high crime area” and that a person was fatally shot across the street
from the building. The court held in favor of the defendant, noting that the plaintiff failed to
meet her burden in that she offered no evidence of substantially similar prior criminal attacks on
the defendant’s premises.
384
Id.
386
387
Watson v. Plocher Const. Co., 2012 Ill. App. (5th Dist. 2012) (unreported).
388
Restatement (2d) Torts, Section 343A; Petrakas v. Wexenthaller Realty Management, Inc., 186 Ill. App. 3d 820,
542 N.E.2d 902 (1st Dist. 1989).
385
113
Duty to Provide Safe Means of Ingress/Egress
While the general rule is that retail establishments only owe a duty to protect patrons
from the foreseeable criminal acts of third parties while the patron remains on the premises, an
owner or operator of a business has a duty to provide a reasonably safe means of ingress and
egress both on his premises and, in certain cases, beyond the precise boundaries of its
premises.389
The analysis of whether a duty extends beyond the precise boundary of the premises is
determined on a case-by-case basis, as the courts have recognized that there is no bright line rule
that a land owner's duty to protect its patrons from criminal acts of third parties absolutely ends
at the precise property line of the tavern.390 While the Illinois courts have not created a brightline rule, the courts have extended a business’ duty to protect its patrons against the criminal acts
of third parties beyond its property lines in the following circumstances: (1) when an injury
occurred on a public sidewalk located directly outside the door of a business and the business
had taken affirmative steps to appropriate the sidewalk; and (2) when an injury occurred directly
outside the door of business, and the business directly and immediately contributed to the injury,
such as by simultaneously expelling fighting patrons.391
As to the first scenario, in the case of Osborne v. Stages Music Hall, Inc., the defendant
operator of a nightclub had roped off the area immediately outside its door on the public
sidewalk and used the area to form a line into the club.392 Plaintiff’s attackers had been involved
in a physical altercation inside the club and were ejected by security. The attackers did not leave,
but remained on the public sidewalk in the roped off area and continued to pound on the door of
the club taunting the security guards, who were positioned directly inside of the door to the club.
The bouncers then allowed the plaintiff to exit the same door where the attackers were still being
aggressive, and plaintiff was kicked in the head immediately as she exited the front door. The
court held that the defendant owed a duty to the plaintiff due to the fact that after removing the
two attackers from the club, the bouncers did not supervise or concern themselves with the area
in front of the bar – an area over which the defendant had earlier exercised control by erecting
barriers to control the flow of traffic – and knowingly allowed the plaintiff to leave through
locked doors into the path of dangerous men.393
With respect to the second circumstance, in the case of Haupt v. Sharkey, the plaintiff
was struck by his attacker immediately outside the front door of the tavern on a public parking
lot after both were simultaneously ejected by the defendant’s security for being engaged in a
fight inside the bar.394 The court held that that plaintiff retained his status as a business invitee at
the point he was struck in the face by his attacker because the event occurred during plaintiff's
egress from the defendant’s bar. The court further held that the attack on the plaintiff was
reasonably foreseeable, given that the plaintiff and his attacker had been engaged in a physical
389
Badillo v. DeVivo, 161 Ill. App. 3d 596, 515 N.E.2d 681 (1st Dist. 1987)
Haupt v. Sharkey, 358 Ill. App. 3d 212, 832 N.E.2d 198 (2d Dist. 2005)
391
Hougan v. Ulta Salon, Cosmetics & Fragrance, Inc., 2013 IL App (2d) 130270, 999 N.E.2d 792, 803 (2d Dist.
2013).
392
312 Ill. App. 3d 141, 726 N.E. 2d 728 (1st Dist. 2000).
393
Id. at 149.
394
390
114
altercation inside the bar, and were simultaneously escorted out the same door by the defendant’s
security.395
In contrast to Haupt, the court in the case of Badillo v. DeVivo, held that a tavern had no
duty to protect a patron that was attacked one half block away from the premises. 396 In Badillo,
the plaintiff was verbally accosted and physically attacked by another patron at the defendant’s
tavern. Defendant intervened and stopped the altercation, after which defendant ejected both
plaintiff and his attacker from the premises. Plaintiff then proceeded to her automobile parked
one-half block away from defendant’s premises, where she again was assaulted and battered by
the attacker. In affirming the trial court’s granting the defendant’s motion to dismiss, the court
held that since the assault occurred one half block away, the tavern operator was not obligated to
escort the plaintiff to safety after she left the proximity of the bar, and thus it owed her no duty to
protect her from the criminal attack.397
Voluntary Undertaking
A business owner can impose a duty upon itself where one might not otherwise exist
when it voluntarily undertakes to provide security for its invitees and does so negligently. 398 In
such cases, a breach of that duty is established where the plaintiff shows that the landowner
failed to exercise reasonable care in the voluntary undertaking, and that failure increased the risk
of harm to the plaintiff.399 The undertaking can never be construed as insurance of absolute
protection against all criminal activity.400 Instead, the duty is limited to the extent of the
undertaking.401
In Lawson v. City of Chicago, the mother of a student who was fatally shot filed suit
against the defendant for failing to protect the student. The plaintiff alleged that the defendant
undertook a duty to prevent deadly weapons on its property by installing metal detectors. 402 The
detector was used solely on a random basis. The court held that the defendant did not breach any
duty on the day of the alleged incident. Rather, the defendant’s only duty was to use reasonable
care in its random use of the metal detector.
The plaintiff must also establish that the voluntarily undertaking was the proximate cause
of the crime committed by the assailant.403 In Castro v. Brown’s Chicken and Pasta, Inc.,
several employees were murdered in the defendant’s establishment. Evidence was presented
indicating that the defendant had established “security procedures” for reducing the number of
robberies that were taking place, which included keeping the back the door locked. The court
held that the defendant’s undertaking, if any, would have been limited to ensuring that the back
door remained locked. Because the assailant entered through the front door, during regular
395
Id. at 219.
397
Id. at 597
398
Castro v. Brown’s Chicken and Pasta, Inc., 314 Ill. App. 3d 542, 732 N.E.2d 37 (1st Dist. 2000).
399
Id.
400
401
Id.
402
Id.
403
Id.
396
115
business hours, the defendant’s failure to keep the back door locked was not the proximate cause
of the injuries sustained.
Similarly, a franchisor can only be held liable for criminal attacks if it controlled, and
voluntarily assumed, the security measures in the franchisee’s store. In Chelkova v. Southland
Corporation, an employee of a 7-Eleven convenience store was sexually assaulted while
working the late-night shift of the store alone.404 The plaintiff filed a negligence claim against
the franchisor alleging that it had a duty to protect her from this attack. The evidence revealed
that the franchisor recommended a variety of security measures, which the owners had the
authority to implement or ignore. Specifically, the franchisor provided a robbery prevention kit
and manual that was kept at the store. Additionally, rape prevention was offered to the owners
and they installed a security system at the franchisor’s expense. The franchisor did not provide
safety training to the franchisee’s employees and did not monitor the storeowner’s compliance
with the safety recommendations.
The court held that even if the franchisor voluntarily provided some security measures,
this undertaking was not the proximate cause of the employee’s sexual assault, as it was
ultimately the franchisee’s decision to implement the suggestions and disseminate the safety
manuals to their employees.
Liability for Independent Contractors
While a tavern owner does not have a general duty to provide security guards at his
establishment, if he chooses to do so, he has a duty to do so in a non-negligent manner. Where
security is provided by an independent contractor, the property owner may be susceptible for
claims of negligent hiring in his selection of the contractor, but his responsibility for the work of
those contractors is limited. While there is no case law directly on point with the situation of bar
security provided by an independent contractor, in this case, a court would, presumably, look to
the general principals applicable to the independent contractor relationship.
As a general matter, one who hires an independent contractor is not liable for the
independent contractor’s acts or omissions.405 In the context of construction cases, an exception
has developed and been applied, to a limited extent, outside the construction industry. The
exception, referred to as the “retained control” exception, provides that the one who hires an
independent contractor may be responsible for that contractor’s acts or omissions if he retains
control of any part of the work, and the injury is caused by his failure to exercise his control with
reasonable care.406 In order for the exception to apply, the person hiring the independent
contractor must not simply have a general right to make suggestions, recommendations, or order
the work stopped or resumed. Rather, the hiring party must retain a right of supervision such
that the contractor is not entirely free to do the work in his own way.407
404
Doe v. Big Brothers Big Sisters of America, 359 Ill. App. 3d 684, 834 N.E.2d 913 (1st Dist. 2005) citing Moorehead
v. Mustang Construction Co., 354 Ill. App. 3d 456, 821 N.E.2d 358 (2004).
406
Id. citing Restatements (2d) of Torts, Section 414.
407
Id.
405
116
In Doe, for example, the plaintiff sued both the national office of Big Brothers Big Sisters
of America and the local Chicago chapter after her son was sexually molested by a mentor
affiliated with the organization. The national office and local Chicago chapter were affiliated
through a contract that explicitly provided that the local chapter was an independent contractor of
the national office. While the national office provided general guidelines for the local chapters
as to how volunteer mentors should be screened, selected, and supervised, the court found that
the national office had not retained control over the local chapter sufficient for it to be found
liable for any alleged negligence on the part of the local chapter.
Even if a defendant could, in theory, be liable to the plaintiff as an agent, the plaintiff
would still need to prove that the action was reasonably foreseeable. The case of Hills v.
Bridgeview Little League Association, is instructive on this issue.408 In Hills, the plaintiff, a little
league coach, filed suit against the Bridgeview Little League, among others, after he was
assaulted by the coaches of the opposing team, which were associated with the Bridgeview Little
League, under the theory that the coaches who attacked him were agents under the control of the
Bridgeview Little League. While the court did not reach a clear conclusion as to whether the
coaches could properly be in a master/servant relationship with the Bridgeview Little League, the
court stated that in order for a duty to arise, the servant must be on the master’s premises, and the
master must know or have reason to know that he has the ability to control his servant and know
or should know of the necessity and opportunity for exerting such control.409 The Hills court
focused on whether the plaintiff has established evidence that the Bridgeview Little League had
knowledge of the need to control the coaches. The evidence demonstrated that the Bridgeview
Little League knew the coaches to be upstanding coaches, and that the men had not previously
shown a propensity for violence and were not known to have committed assault previously. In
addition, witnesses reported that they were “shocked” and “stunned” when the attack on the
Plaintiff began. Thus, the court found no evidence that the Bridgeview Little League had
knowledge that these coaches would need to be controlled. Further, because the attack was
sudden, violent, and unplanned, the Little League had no opportunity to exercise control over the
coaches once the attack began.
What to take from the Criminal Acts of Third Party Cases:
Property owners should pay special attention to patrons that are known to have a
reputation for criminal behavior or have exhibited criminal-like behavior in the past, and to
certain criminal incidents which occurred in the past. Courts have held that this knowledge puts
the property owner on notice and triggers a duty to protect future entrants of the property from
certain individuals or situations that have been involved in past incidents. Furthermore, if
property owners provide security for entrants, they must use reasonable care in providing such
security or risk being held liable for the criminal acts of third parties.
408
409
Hills v. Bridgeview Little League Association, 195 Ill.2d 210, 745 N.E.2d 1166 (Ill.2001.).
Id. at 229.
117
Applying Law in Criminal Acts of Third Parties to Prevent Losses in Retail
For land owners or occupiers that operate taverns, night clubs, stadium venues or other
retail establishments where security is utilized, it is important to create a proper written security
policy in order to keep known, violent individuals off the premises, and to ensure the safe and
proper removal of aggressive patrons from the premises. Based on the case law above, this
written policy should include the following factors:





Patrons that have engaged in altercations on the premises should be identified and
banned from the establishment.
A system should be in place by which security staff, bartenders and other employees
are informed of those customers that have been banned from the premises due to
violent or inappropriate behavior, and they should be instructed not to permit entrance
to those that have been banned.
Security staff should be trained to remove any customer displaying aggressive or
violent behavior off the premises.
In the event that a patron becomes aggressive, security staff or employees should be
trained never to strike a patron, and only use force if necessary to restrain the
aggressive patron from hurting employees or other customers.
In the event of an altercation between patrons, security staff or employees should be
trained to promptly separate the patrons and remove them from the premises at
separate times, and preferably out separate exits, in order to avoid the confrontation
from re-escalating outside of the premises’ doors.
By taking these reasonable measures, a land owner or operator can substantially limit its
potential liability from criminal acts of third parties.
Retail establishments should also consider the checklist below in evaluating whether they
are doing all they can in keeping their premises safe.410 However, many of the policies below
may not be feasible for certain landowners who invite the public onto its premises for business.








Parking lots and walkways are well lit.
Cash and cash registers are located away from the entry doors.
Cash box or cash register is locked when unattended.
Provide drop safes to limit the amount of cash on hand. Keep a minimal amount of
cash in registers during evenings and late-night hours.
Procedures are in place for dealing with retail theft and/or robberies. Safety is
emphasized - heroics are not appropriate.
Valuable merchandise is secured and can only be accessed by an authorized staff
person.
If necessary, have security guards greet all visitors and examine personal belongings
being brought into the building or office area.
Restrict access to private areas of the facility through locked or guarded entryways.
410
Workplace Safety Toolkit: Preventing Injuries and Homicides from Robberies and Crimes in Retail. Nonprofit Risk
Management Center, 2005.
118






411
Keep storage rooms, boiler rooms, telephone and utility closets, and similar potential
hiding places locked or off-limits to visitors.
Use easily distinguishable identification badges for staff and visitors in secured areas.
Require visitors to secure areas to be accompanied by staff employees to and from the
facility entrance.
Request that visitors to secured areas display identification to security personnel
when they sign in.
Keep detailed logs on the arrival and departure times of all visitors to secure areas.
Consider using the services of a certified protection professional to evaluate, in detail,
your company’s personnel and physical security safeguards. 411
Id.
119
Dram Shop Liability
General Rule
Dram Shop laws impose a civil liability on commercial sellers of alcoholic beverages for
the tortious acts of an intoxicated customer. Almost every state in the union has passed what is
called a Dram Shop Act. These statutes essentially create a form of strict liability for all “Dram
Shops” that sell intoxicating liquors to patrons who subsequently injure a third party. With
respect to a claim brought under a dram shop statute, the intoxicated individual that injures a
third party is known as the “allegedly intoxicated person” or “AIP.” The Illinois Dram Shop Act
(235 ILCS 5/6-21) provides in part:
Every person who is injured within this State, in person or property, by any
intoxicated person has a right of action in his or her own name, severally or
jointly, against any person, licensed under the laws of this State or any other state
to sell alcoholic liquor, who, by selling or giving alcoholic liquor, within or
without the territorial limits of this State, causes the intoxication of such person.
The Illinois Supreme Court has repeatedly held that the Dram Shop Act is the exclusive
remedy for holding providers of alcohol liable for the actions of an intoxicated person.412 At
common law, there is no liability imposed on a person who gives or sells alcohol to another
person who later harms a third party while intoxicated.413 Therefore, an injured party cannot
bring a common law negligence claim against a bar owner for injuries suffered at the hands of an
allegedly intoxicated person. The Dram Shop Act also holds that any person who is over the age
of 21, who pays for a hotel or motel room knowing that the room is to be used by any person
under 21 years of age for the unlawful consumption of alcoholic liquors and such consumption
causes the intoxication of the person under 21 years of age, is liable to any person who is injured
in person or property by the intoxicated person under 21 years of age.414 Claims made under the
Dram Shop Act are barred if they are not commenced within one year of the date of the
accident.
Elements
There are five elements that need to be proven for an injured party to recover under the
Illinois Dram Shop Act:
1. The tortfeasor was intoxicated at the time of the injury;
2. The defendant sold or gave intoxicating alcohol that was consumed by the
tortfeasor;
3. The alcohol consumed caused the intoxication of the tortfeasor;
4. The tortfeasor’s intoxication was at least one cause of the occurrence in
question; and
412
165
See Simmons v. Homatas, 236 Ill.2d 459, 925 N.E.2d 1089, 338 Ill.Dec. 883 (Ill.2010) citing Charles v. Seigfried
Ill.2d 482, 651 N.E.2d 495 (Ill.1995); Fitzpatrick v. Carde Lounge, Ltd., 234 Ill. App. 3d 875, 602 N.E.2d 19 (1st
Dist. 1992) citing McKeown v. Homoya, 209 Ill. App. 3d 959, 568 N.E.2d 19 (5th Dist. 1991).
413
Id. at 1096.
414
Wakulich v. Mraz, 203 Ill.2d 223, 785 N.E.2d 843 (Ill. 2003).
120
5. As a result of the occurrence, the plaintiff suffered an injury to person or
property.415
The negligence of a dram shop owner is not an element of the cause of action. Rather,
strict liability is imposed upon the Illinois dram shop owner without the necessity of proving
fault.416 The sale or giving of alcohol is the only action on the part of the dram shop owner that is
necessary for an action to be maintained. In order to be held liable for a third party’s injuries, a
defendant must have caused the intoxication and not have merely furnished a negligible amount
of alcohol. An active and willing agent in procuring the intoxication of another is not an
innocent party under the Dram Shop Act.417
The Dram Shop statute is aimed at dram shops and those who are engaged either lawfully
or unlawfully in the sale of liquor, and it does not apply to persons who are not directly or
indirectly, or in any way, engaged in the sale of alcohol. For example, in Fabian v. Polish
American Veterans Assoc. of America, a veterans’ association which leased a large hall for the
purposes of a wedding reception was held to not be a “seller” of intoxicating liquor with the
meaning of the Dram Shop Act.418 The right of action under the Dram Shop Act cannot be held
against a person who, in his own home or elsewhere, gives liquor to a friend as a mere act of
courtesy, and without any purpose or expectation of profit.419
Similarly, Illinois does not recognize a cause of action for social host liability, and the
same rule applies to uncompensated hosts.420 For example, an employees’ association devoted to
the recreation and welfare activities of its employees, which held a picnic at which alcohol was
given to members, is not liable under the Act.421 This conclusion also applies to employers and
corporations as to their employees.422 Even a noncommercial host cannot be held liable under
the Act for providing alcohol to minors who cause injury to others by reason of their
intoxication.423
No cause of action exists under the Dram Shop Act for injuries to intoxicated person or
his/her property. However, there is a cause of action for individuals for injuries to either means
of support or loss of society, but not both, caused by an intoxicated person or in consequence of
the intoxication of any person, as long as the person providing means of support or loss of
society was not the intoxicated person.424
Proof of Intoxication
For the purposes of the Illinois Dram Shop Act, a person is “intoxicated” when as a result
of drinking alcoholic liquor there is an impairment of his or her mental or physical faculties so as
415
Illinois Pattern Jury Instructions-Civil. Ill. Pattern Jury Instr.-Civ.150.02 (2009 ed.).
Tresch v. Nielsen, 57 Ill. App. 2d 469, 207 N.E.2d 109 (1st Dist. 1965).
417
De Long v. Whitehead, 11 Ill. App. 2d 330, 137 N.E.2d 276 (3rd Dist. 1956).
418
Fabian v. Polish American Veterans Assoc. of America, 126 Ill.App.3d 80, 466 N.E.2d 1239 (1st Dist. 1984).
419
Richardson v. Ansco, Inc., 75 Ill. App. 3d 731, 394 N.E.2d 801 (3rd Dist. 1979).
420
Rainey v. Pitera, 273 Ill. App. 3d 234, 651 N.E.2d 747 (1st Dist. 1995)
421
Miller v. Owens-Illinois Glass Co., 48 Ill. App. 2d 412, 199 N.E.2d 300 (5th Dist. 1964).
422
Martin v. Palazzolo Produce Co., Inc., 146 Ill. App. 3d 1084, 497 N.E.2d 881 (5th Dist. 1986).
423
Flory v. Weaver, 196 Ill. App. 3d 149, 553 N.E.2d 105 (4th Dist 1990).
424
235 ILCS 5/6-21.
416
121
to diminish his ability to think and act with ordinary care. 425 Whether a person is intoxicated
under the Dram Shop Act is a question of fact that is generally left to the jury to decide.426
However, a jury question as to the element of intoxication is not made out by merely proving that
a tortfeasor has consumed alcohol. Since each individual’s capacity for alcoholic intake varies
greatly, determining if someone is intoxicated simply by the fact that they consumed alcohol
would be pure conjecture.427 In fact, evidence of consumption of alcohol is not admissible at
trial unless there is supporting evidence of intoxication which reveals impaired mental and
physical faculties with a resultant diminution in the ability to think and act with ordinary care. 428
Stated more simply, for a plaintiff to prove the element of intoxication under the Dram Shop Act,
proof of alcohol consumption must be combined with unusual or erratic behavior or opinion
evidence that the tortfeasor was drunk. 429 If a plaintiff lacks such evidence, the element is not
proven and the Dram Shop action will fail.430
For example, in Matkins v. Fenorsky, the tortfeasor had three bottles of beer at a tavern,
and then attempted to drive home.431 The tortfeasor testified that he felt slow and heavy after
drinking the beer. After driving 12 miles, the tortfeasor began to feel “groggy,” veered off the
highway and struck a pedestrian. The court held that the testimony regarding the “groggy”
condition of the driver, along with the evidence of his beer consumption, was sufficient evidence
to allow a jury to decide if the element of intoxication had been proven.
However, the mere fact that a tortfeasor has consumed alcohol, and then subsequently
becomes involved in an accident is not sufficient evidence to show unusual or erratic behavior.
In Rose v. Brozman’s Tavern, a driver lost control of his car coming around a sharp turn and a
passenger was killed in the resulting accident.432 The driver admitted to having four or five
drinks in the early afternoon at the defendant’s tavern. After leaving the tavern, the driver ate a
meal, took a three hour nap, and drove several miles without incident. The accident at issue did
not occur until over four hours after the driver had consumed the alcohol at the tavern. The
plaintiff argued that the fact that the driver lost control of the car and crashed was sufficient
evidence in and of itself of unusual and erratic behavior, and therefore the jury could decide if
the driver was intoxicated. The court disagreed and found in favor of the defendant, reasoning
that without other evidence of unusual or erratic behavior, the fact of the accident standing by
itself did not amount to an inference of intoxication.
Further, to establish a cause of action under the Act, there must be a sale or gift of
intoxicating alcohol, but the sale or gift does not necessarily have to be to the person who
subsequently becomes intoxicated and causes the injury.433 For instance, if the alcohol is served
to one person and drunk on the premises, but paid for by another individual, the Act still
applies.434 The seller is also liable if he knows, or has reasonable grounds to believe that the
425
Navarro v. Lerman, 48 Ill. App. 2d 27, 198 N.E.2d 159 (1st Dist. 1964).
Weiner v. Trasatti, 19 Ill. App. 3d 240, 311 N.E.2d 313 (1st Dist. 1974).
427
Id. at 317.
428
Kaplan v. Disera, 199 Ill. App. 3d 1093, 557 N.E.2d 924 (3d Dist. 1990).
429
Felker v. Bartelme, 124 Ill. App. 2d 43, 260 N.E.2d 74 (1st Dist. 1970).
430
Smith v. Trimmel, 28 Ill. App. 3d 369, 328 N.E.2d 45 (4th Dist. 1975).
431
Matkins v. Fenorsky, 348 Ill. App. 125, 108 N.E.2d 373 (4th Dist. 1952).
432
Rose v. Brozman’s Tavern, Inc., 102 Ill. App. 3d 1087, 430 N.E.2d 282 (2d Dist. 1981).
433
Bell v. Poindexter, 336 Ill. App. 541, 84 N.E.2d 646 (3d Dist. 1949).
434
Bennett v. Auditorium Bldg. Corp., 299 Ill. App. 139, 19 N.E.2d 626 (1st Dist. 1939).
426
122
alcohol the purchaser bought will be given to another person, and that other person afterward
becomes intoxicated and causes damage. However, if that alcohol purchaser and a friend
consume the beverage off-premises, and it results in the intoxication of the friend who causes
damage, the owner will not be held liable because the damages caused are wholly disconnected
from the act of the person buying the alcohol. 435
Causation of Intoxication
Not only does the plaintiff have to prove that the AIP was actually intoxicated at the time
of the injury, but they must also prove that such intoxication was caused by alcohol provided by
the dram shop owner at issue. In determining whether a defendant dram shop caused the
intoxication, the courts look to whether the dram shop’s conduct was a material and substantial
factor in producing or contributing to produce the intoxication of the tortfeasor.436
Generally, if the dram shop only serves the tortfeasor a small, or de minimis amount of
alcohol, then the dram shop cannot be said to have caused the intoxication.437 However,
determining what constitutes serving of a material and substantial amount of alcoholic liquor
must be viewed relative to the person's level of intoxication prior to that service. For example, in
the case of Henry v. Bloomington Third Ward Cnty. Club, the alleged intoxicated person that
caused plaintiff’s injury was served one mixed drink at the defendant’s tavern, but evidence
indicated that he was already intoxicated at the time that he was served.438 The court held that
whether the defendant tavern materially and substantially contributed to the AIP’s intoxication
was a question for the jury to decide. In its holding, the court reasoned that a dram shop which
serves a negligible amount of liquor to a sober person would clearly not have “caused” that
person's intoxication, and thus liability would not be found under the Act. But where a dram
shop serves a relatively small amount of liquor to a person who is already intoxicated, it is up to
a jury to decide whether the defendant's conduct was a material and substantial factor in
contributing to that person’s intoxication.
Causation of the Injury
A dram shop will not be held liable unless the plaintiff can establish that his/her injury
was caused by the AIP’s intoxication.439 If the Plaintiff cannot show that the defendant’s alleged
intoxication was at least one cause of the accident, the cause of action will fail.440 Thus, merely
showing that the defendant was intoxicated and that an accident occurred while he or she was
intoxicated is not sufficient to establish intoxication as a cause of the accident.
When an action is brought for any injury inflicted by the affirmative act of an alleged
intoxicated person, it is not necessary that the intoxication be the proximate cause of the injury.
If this is the case, the doctrine of proximate cause has no application, and liability accrues on the
435
McCoy v. Spalding, 41 Ill. App. 2d 292, 190 N.E.2d 483 (3d Dist. 1963).
Thompson v. Tranberg, 45 Ill. App. 3d 809, 360 N.E.2d 108 (2d Dist. 1977).
437
Nelson v. Araiza, 69 Ill.2d 534, 372 N.E.2d 637 (Ill. 1978).
438
89 Ill. App. 3d 106, 411 N.E.2d 540 (4th Dist. 1980)
439
Overocker v. Retoff, 93 Ill.App.2d 11, 234 N.E.2d 820 (3rd Dist. 1968).
440
Krawczyk v. Polinski, 276 Ill. App. 3d 258, 642 N.E.2d 185(2d Dist. 1994).
436
123
proof of the affirmative act.441 Thus, in an action under the Dram Shop Act for injuries caused
“by” an intoxicated person, the plaintiff is only required to prove that the injuries resulted from
the direct affirmative act of an intoxicated person.442
For example, in Hernandez v. Diaz, the plaintiff was in a Chicago bar when four men
came in and became intoxicated.443 When the security guard asked the four men to leave, they
became violent, and in the ensuing scuffle the plaintiff was shot accidentally by the security
guard. The Appellate Court held that since the plaintiff was injured by the security guard and not
directly by the intoxicated patrons, he could not recover under the Act. The Supreme Court of
Illinois reversed, reasoning that the Appellate Court’s opinion would deny a right of action to
any innocent party injured in a tavern brawl unless they could prove that the injury was directly
received from an intoxicated person. The Court held that if an intoxicated person commits an act
which has a direct causal relation to the injury of another, the injury is caused by the intoxicated
person. The Plaintiff was allowed to maintain his Dram Shop action because his injuries had a
causal connection to the direct affirmative acts of intoxicated persons, the four men starting the
fight with the security guard.
Instances where the dram shop owner is not held to have caused and become liable for
the intoxication occur when the operator of the dram shop consumes his own liquor and injures
another while intoxicated. There is no liability since there is no sale or gift of liquor within the
contemplation of the statute. 444 Alcohol sold at two different establishments may cause a single
intoxication for the purposes of the Dram Shop Act, subject to the limitation that the
establishment may not be held liable for a de minimis contribution to an individual’s
intoxication.445
Defenses
The Illinois Dram Shop Act does not set forth any affirmative defenses, but the Illinois
courts have carved out two defenses based on the premise that only an innocent party should
recover under the Act. Those defenses are “complicity” and “provocation.”
Contributory negligence, comparative fault, and assumption of the risk, are not defenses
to a claim brought under the Illinois Dram Shop Act. Because the Dram Shop Act is not
predicated in tort (i.e. negligence), but is s remedy provided by statute, contributory negligence is
not an issue.446
Complicity
Complicity requires proof that the plaintiff actively contributed to or procured the
intoxication of the person causing the injury.447 Complicity is not akin to contributory
441
Tresch v. Nielsen, 57 Ill. App. 2d 469, 207 N.E.2d 109 (1st Dist. 1965).
Schneider v. Kirk, 83 Ill. App. 2d 170, 226 N.E.2d 655 (2d Dist. 1967).
443
Hernandez v. Diaz, 31 Ill.2d 393, 202 N.E.2d 9 (Ill. 1964).
444
Kaminski v. Rymek, 9 Ill. App. 2d 561, 133 N.E.2d 770 (1st Dist. 1956).
445
Mohr v. Jilg, 223 Ill.App.3d 217 (3rd Dist. 1992).
446
447
442
124
negligence, which relates to the plaintiff’s role in causing his own injury. Rather, complicity
concerns the plaintiff’s role in causing the tortfeasor’s intoxication.448 The existence of
complicity will depend heavily on the specific facts of each case, and no specific factors carry
greater weight than others. It is not required that the plaintiff actually purchase the alcohol for
the defendant for the defense of complicity to survive.
The final resolution of whether the defense has been proven is generally an issue of fact
for the jury to decide.449 However, if the material facts establish that the plaintiff’s procurement
of the AIP’s intoxication are undisputed and capable of only one conclusion, summary judgment
for a tavern owner may be appropriate.450 For example, in Foley v. Stoned Toad, Inc., the
plaintiff visited the defendant tavern with the AIP and watched him consume six beers. 451
Shortly thereafter, the plaintiff went on a drive with the AIP, and they stopped and picked up a
case of beer. The plaintiff admitted to opening, and then passing the AIP five more beers while
the AIP was driving. The plaintiff stated that she opened the beers for the AIP because he was
already too intoxicated to do so himself. The AIP eventually lost control of the car, and the
plaintiff suffered personal injuries and brought suit against the tavern. The court held that such
extreme conduct by the plaintiff actively contributed to the intoxication of the AIP, and thus
summary judgment for the tavern owner was appropriate.
Provocation
Provocation is the other defense available to a defendant tavern in a dram shop action.
This defense requires proof that the plaintiff caused or provoked the alleged intoxicated person to
harm the plaintiff, a defense usually asserted in physical altercations at drinking
establishments.452 Extremely offensive conduct may be sufficient to establish this defense,
which would be a complete bar to recovery if proved. Mere words and gestures, however, are
insufficient to constitute provocation.453
For example, in Werner v. Nebal, two men became engaged in a verbal argument in the
defendant tavern, which eventually escalated into a physical altercation.454 The plaintiff suffered
personal injuries, and brought suit against the tavern under the Act. The defendant tavern
asserted the defense of provocation, arguing that the plaintiff provoked the intoxicated person
into the physical fight through his gesturing and yelling during the initial verbal altercation. The
Appellate Court held that the essence of provocation was being provoked into attacking, and
mere words or gestures such as those used by the plaintiff could not constitute provocation under
the Dram Shop Act.
Of note here is that there is a split among the Illinois appellate circuits as to whether the
defense is available, and the issue has yet to be addressed by the Illinois Supreme Court. In
Galyean v. Duncan, the Court of Appeals for the Fifth Circuit held that provocation is no longer
448
Graham v. United National Investors, 319 Ill. App. 3d 593, 745 N.E.2d 1287 (4th Dist. 2001).
Walter v. Carriage House Hotels, 164 Ill.2d 80, 646 N.E.2d 599 (Ill. 1995).
450
Walter v. Carriage House Hotels, 646 N.E.2d at 606.
451
Foley v. Stoned Toad, Inc., 77 Ill. App. 3d, 396 N.E.2d 834 (3rd Dist. 1979).
452
Akin v. J.R.’s Lounge, Inc., 158 Ill.App.3d 834, 512 N.E.2d 130 (3d Dist. 1987).
453
Werner v. Nebal, 377 Ill. App. 3d 447, 878 N.E.2d 811 (1st Dist. 2007).
454
Id. at 815.
449
125
an affirmative defense to a dram shop action.455 On the other hand, the First, Second, and Third
Circuits allow provocation as a defense.456
Other Considerations
Common Law Claims
The Dram Shop Act provides the exclusive remedy for a plaintiff pursuing a claim arising
from injuries resulting from a defendant’s supplying of alcoholic beverages.457 In other words,
there is no common law negligence action for negligently supplying alcohol. However, the
Dram Shop Act does not eliminate a tavern owner’s common law duties as a business owner to
his patrons. In several cases where plaintiffs have failed to assert a claim under the Dram Shop
Act, the courts have allowed such plaintiffs to pursue other common law claims of negligence
that may be available to them that did not involve or rely upon the fact that the defendant had
provided alcohol to the individual responsible for causing the plaintiff’s injury.
For example, in Fitzpatrick v. Carde Lounge, the Dram Shop Act did not bar the plaintiff
from asserting a negligence claim against the tavern owner defendant. 458 In Fitzpatrick, the
plaintiff’s descendant, Natalie Hastie, had gone to the defendant’s tavern with a friend, Russell
Phillips, who was a minor. Despite his age, Phillips was served alcohol by the tavern. He and
Hastie began fighting in the tavern, and the fight continued outside. Phillips then got into his car
and drove towards Hastie, hitting her and causing injuries leading to her death. The plaintiff
filed suit alleging common law negligence claims for serving alcohol to a minor, and under a
premises liability theory. The court ruled that the Dram Shop Act provides the exclusive remedy
for pursuing claims arising from the acts of an intoxicated person against the party supplying that
person with alcoholic beverages.459 Because the plaintiff’s claim was not asserted as a claim
under the Dram Shop Act, and could not be maintained under the Act based on the known facts,
the plaintiff’s claim for the defendant’s act of serving Phillips was dismissed.
The plaintiff’s negligence claim, however, was not barred by the Dram Shop Act, as the
facts relevant to the negligence claim had nothing to do with whether Phillips had been served
alcohol, and did not rely on the fact that Phillips was intoxicated. Rather, the plaintiff claimed
that the defendant tavern owner had a duty to protect Hastie from Phillips because she was a
business invitee, and the two argued inside the tavern before Phillips attacked Hastie with his
vehicle outside the tavern. The court ultimately dismissed the plaintiff’s negligence claim
because she did not allege facts demonstrating a connection between the argument that Phillips
and Hastie had in the tavern with Phillips’s actions once the two went outside. The court noted
that a business owner’s duty to its invitees ceases after the patron leaves the premises, absent
special circumstances warranting extension of that duty.460 Thus, while the plaintiff’s premise
455
Gaylean v. Duncan, 335 Ill. App. 3d 948, 446 N.E.2d 264 (5th Cir. 1984).
Werner v. Nebal, 377 Ill. App. 3d 447, 878 N.E.2d 811 (1st Dist. 2007); Gilman v. Kessler,192 Ill. App. 3d 630, 548
N.E.2d 1371 (2d Dist. 1989); Akin v. JR’s Lounge, Inc., 158 Ill. App. 3d 834, 512 N.E.2d 130 (3d Dist. 1987).
457
Fitzpatrick v. Carde Lounge 234 Ill. App. 3d 875 602 N.E.2d 19 (1st Dist. 1992).
458
Id. at 878.
459
Id.
460
Id. at 879.
456
126
liability claim ultimately failed, the claim was not foreclosed or preempted by the application of
the Dram Shop Act.
Also, a bar owner has no duty to restrain a patron from driving away, regardless of the
patron’s intoxication because there is no common law cause of action based upon the willful and
wanton misconduct by a tavern owner in connection with the sale or supply of alcohol, no matter
how egregious the underlying facts of the cause of action are.461 However, there will be a cause
of action for the plaintiff in these kinds of circumstances under the Dram Shop Act.
A recent decision by the Illinois Supreme Court held that an adult entertainment night
club who required an intoxicated driver to drive home, which ultimately resulted in a car
accident and the death of another driver, was negligent under the common law. The club did not
sell alcoholic beverages, but patrons were allowed to bring alcohol with them. Therefore, the
Supreme Court held that the club owed a duty to the decedents to not encourage and assist
patrons in the tortious conduct of driving while intoxicated under common law negligence. The
court did not hold that restaurants, parking lot attendants, or social hosts were required to
monitor their patrons to determine whether they were intoxicated. The court only held that when
a defendant removes an intoxicated patron from its premises, places him in the car, and requires
him to drive away, a common law negligence action arises that is not preempted by the Dram
Shop Act.462
In another case, which recently addressed the issue of preemption in the context of a
Dram Shop claim, the court in Hicks v. Korean Airlines Co., held that the Dram Shop Act did not
preempt an action by the special administrator of a motorist’s estate that an employer was
vicariously liable, under the doctrine of respondeat superior, for the negligence of an employee
whose intoxicated driving after a social function with colleagues resulted in an automobile
accident that killed a motorist and the employee.463
The court in Hicks relied on the rule established by the Illinois Supreme Court that there
is a difference between claims arising from a defendant’s providing of alcohol and claims based
on other theories of liability, such as a defendant’s negligent driving. In Hicks, the appellate
court found that the plaintiff’s common law claim that the defendant could be vicariously liable
under the theory of respondeat superior for the employee’s allegedly negligent driving,
regardless of who provided her with alcohol, was in accord with the case law on preemption in
the context of the Dram Shop Act claim and, therefore, not preempted by the Dram Shop Act.464
Application of the Fireman’s Rule to Dram Shop Actions
Recently, the First District Appellate Court ruled on a matter of first impression that the
inherent risk doctrine, also known as the “fireman’s rule,” did not bar a claim under the Dram
Shop Act. Under the “fireman's rule” a firefighter or other public officer is prohibited from
recovering from a landowner for injuries incurred when, in an emergency, they enter onto
461
McKeown v. Homoya, 209 Ill. App. 3d 959, 568 N.E.2d 528 (5th Dist 1991).
Simmons v. Homatas,et al, 236 Ill.2d 459, 925 N.E.2d 1089 (Ill. 2010).
463
Hicks v. Korean Airlines Co., 404 Ill.App.3d 638 (1st Dist. 2010)
464
Hicks, 404 Ill.App.3d at 48.
462
127
privately owned property in discharge of their duty. In Olle v. C House Corporation, the
plaintiff was an off-duty police officer drinking as a patron at the defendant’s bar. 465 At some
point in the night, a fight broke out between other patrons of the bar and the owner of the bar
asked the plaintiff if he could help resolve the situation. The plaintiff agreed and went out in
front of the bar and confronted the fighting patrons. The plaintiff was attacked by the unruly
patrons and suffered numerous injuries as a result. After the incident, the plaintiff brought an
action under the Dram Shop Act against the defendant bar. The defendant argued that the
plaintiff’s claim was barred by the fireman’s rule; the court disagreed, holding that the defendant
could be held liable under the Act.
The court noted that the fireman’s rule is typically applied negligence actions to
demonstrate that there was no duty owed by the defendant. Accordingly, the court noted that the
fireman’s rule is not an affirmative defense, but when the doctrine applies, there is no duty on the
part of the defendant. Moreover, the court outlined that the fireman’s rule is not an available
defense when a statute calls for strict liability, like the Dram Shop Act does. Therefore, the court
concluded that the fireman’s rule does not preclude recovery under the Dram Shop Act.
The Olle case is especially interesting because of the potential negative public policy
implications in that bar owners may hesitate to call the police to quell disturbances for fear of
exposure to liability if a police officer is injured. However, while this fear would appear to be
very real, it is curious that this is a case of first impression and there are not a myriad of cases
brought by police officers against bar owners. Interestingly, the recovery under the Dram Shop
Act is $45,000, adjusted according to the consumer price index, and any reward obtained from a
dram shop insurer can be subject to a worker’s compensation lien, when applicable. Therefore,
logic would dictate that lawsuits are not being filed by police officers because of this reason.
However, it is still important for all bar and restaurant owners to be aware that police officers
may bring a claim under the Dram Shop Act if the police officers are injured on the premises in
trying quell disturbances and unruly patrons.
Enforcing Illinois Dram Shop Act in Other States
The location of the accident determines which law to apply when it comes to dram shop
laws. Illinois’ Dram Shop Act applies across state lines if the other state has a similar Dram
Shop law. The Illinois Dram Shop Act also specifically extends the jurisdiction of Illinois
Courts to out of state dram shop licencees if the cause the intoxication of an individual who later
injures someone or something in Illinois.466 Therefore, if an individual becomes intoxicated at a
bar in Wisconsin and causes an accident in Illinois, that Wisconsin bar can be held liable under
to the Illinois Dram Shop Act. Whether or not Illinois will be able to establish jurisdiction over
an entity where the sale is regulated by another state will depend on the contacts that entity has
with Illinois.467 But if that driver becomes intoxicated at an Illinois bar and causes an accident in
Wisconsin, then that bar could not be held liable under the Illinois Dram Shop Act because the
person was not injured in Illinois.
465
Olle v. C House Corp., 967 N.E.2d 886 (1st Dist. 2012)
Dunaway v. Fellous, 155 Ill.2d. 93, 610 N.E.2d 1245 (Ill. 1993).
467
Id. at 1248.
466
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Damages
The Dram Shop Act contains specific rules and limitations as to the damages that a
plaintiff can recover from a dram shop for a violation of the Act. Knowledge of these specifics is
needed in order to accurately assess a dram shop owner’s potential liability.
Statutory Limitation of Damages
The Illinois Dram Shop Act has a statutory cap on the amount of damages that an injured
party can recover from a dram shop owner. Each year, the Illinois Comptroller is required to
determine the applicable liability limits according to the consumer price index during the
previous year. In determining what limit to apply to a case, you must use the limit for year that
the injury occurred. A list of the statutory limits for each year can be found on the State of
Illinois Comptroller website.468 For the year 2014, the applicable limits are as follows:

For causes of action involving persons injured or killed on or after January 20, 2014,
the judgment or recovery for judgment to the person shall not exceed $65,017.86 for
each person incurring damages.

For causes of action involving persons incurring property damage on or after January
20, 2014, the judgment or recovery for property of any person shall not exceed
$65,017.86 for each person incurring damages.

For causes of action for either loss of means of support or loss of society resulting
from the death or injury of any person on or after January 20, 2014, the judgment or
recovery shall not exceed $79,466.27.
However, an injured party is allowed to recover the applicable limits for each type of
injury, a process referred to as “stacking.”469 A plaintiff can therefore make a claim for personal
injury, property damage, and loss of means of support or loss of society, and would be able to
recover the applicable limit for each, resulting in a total recovery limit of $201,599.09.
Contribution
While in a typical negligence claim, the plaintiff’s damages can be reduced, or even
precluded, by the amount of his/her “contributory negligence," under the Contribution Act, this
defense is not available for a claim under the Dram Shop Act.470 This is because a dram shop
claim is created from a statute and is not a tort.471 Therefore, under the Dram Shop Act, if a
drunk driver causes injury and is sued in tort, he may not seek contribution from the bar which
caused his intoxication, and the bar cannot seek contribution from the drunk driver.472
468
http://www.ioc.state.il.us/index.cfm/resources/general-resources/dram-shop-liability-limits/
Rinkenberger v. Cook, 191 Ill. App. 3d 508, 548 N.E.2d 133 (4th Dist. 1989).
470
740 ILCS 100/2(a).
471
Hopkins v. Powers, 113 Ill.2d 206, 497 N.E.2d 757 (Ill. 1986), Jodelis v. Harris, 118 Ill.2d 482, 517 N.E.2d 1055
(Ill. 1987).
472
Johnson v. Mers, 279 Ill. App. 3d 372, 664 N.E.2d 668 (2d Dist. 1996).
469
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In Hopkins v. Powers, the plaintiff, who had been driving another person’s car, and who
had been drinking, left the bar with a friend.473 Subsequently, the plaintiff got into a car accident
causing real and property damage to one individual, the car of another, the car he was driving,
and personal injuries to his passenger. The plaintiff settled with all the claimants and then filed
suit seeking contribution for that portion of the total settlement proportionate to the relative
culpability of himself and the defendant dram shop. However, because the dram shop could not
be held liable in tort directly to the plaintiff, the plaintiff could not maintain an action for
contribution under the Contribution Act. The Illinois Supreme Court recognized that the plaintiff
was attempting to use the Contribution Act to recover a portion of the losses he incurred in
reaching settlement with all the claimants as a result of his intoxication as an attempt to
circumvent the statutory bar of the Dram Shop Act for the direct action.474
The Illinois Supreme Court reaffirmed Hopkins when it decided Jodelis v. Harris.475 In
Jodelis, a customer of a bar was injured upon leaving the bar and being struck by a motorist
while crossing the street. The customer sued the motorist, and the motorist filed a third-party
action against the bar for contribution. The Illinois Supreme Court held that the motorist did not
have a cause of action under the Contribution Act against the bar because the claimed ground for
liability was the Dram Shop Act.
Allocation of Loss Among Defendants and Set-Offs
Allocation of loss among more than one seller of alcohol is done on a basis of joint and
several liability.476 In other words, all persons who sell liquor to a person who becomes
intoxicated are equally liable for the entire amount of damages resulting from a plaintiff’s
injuries.477
While dram shop defendants are held joint and severally liable, and are not entitled to
contribution from other tortfeasors, each party is entitled to a “set-off” for amounts paid by other
settling parties. Put simply, the amount paid by the settling party is subtracted by the total
damages awarded by a judge or jury against a dram shop defendant. 478 It is important to note that
the set-off is taken against the total damages awarded by a judge or jury, not against the statutory
liability cap. For example, a plaintiff may settle his or her bodily injury claim against a drunk
driver for a specified sum. If the plaintiff then sues the tavern for those same injuries, the tavern
may assert the sum paid by the drunk driver as a set-off against the total amount of damages
assessed for those injuries by the court, and then reduce the amount to the statutory cap if the
amount exceeds the cap.
Patton v. Rhodes is illustrative of how the set-off works in a dram shop action. In Patton,
a plaintiff obtained a verdict for $62,000, which was then reduced to the full amount of the
statutory limits under the Dram Shop Act at the time of the suit, $26,374.50.479 However, the
473
Hopkins v. Powers, 113 Ill.2d 206, 497 N.E.2d 757 (Ill. 1986).
Id.
475
Jodelis v. Harris, 118 Ill.2d 482, 517 N.E.2d 1055 (Ill. 1987).
476
Jackson v. Moreno, 278 Ill. App. 3d 503, 663 N.E.2d 27 (1st Dist. 1996).
477
Kingston v. Turner, 115 Ill.2d 445, 505 N.E.2d 320 (Ill. 1987).
478
Kurth v. Amee, 3 Ill. App. 3d 506, 278 N.E.2d 162 (2d Dist. 1972).
479
Patton v. Rhodes, 166 Ill. App. 3d 809, 678, 520 N.E.2d 1029 (5th Dist. 1988).
474
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plaintiff had also won a $100,000 wrongful death settlement from the driver of the other
automobile. Since the $100,000 settlement exceeded the total damages assessed in the dram
shop action, $62,000, the set-off reduced the damages owed to the plaintiff to zero.
In addition, the collateral source rule applies to suits under the Dram Shop Act. Under
the collateral source rule, benefits received by the injured party from a source independent of and
collateral to the tortfeasor, such as health insurance, will not diminish damages otherwise
recoverable from the tortfeasor.
For example, in Muranyi v. Turn Verein Frisch-Auf, a man’s wife brought suit under the
Dram Shop Act against the defendant tavern owner for the cost of medical care for injuries the
man suffered in an automobile accident after becoming intoxicated at the tavern. 480 The trial
court granted summary judgment for the tavern owner, reasoning that the wife had suffered no
loss because the medical expenses had been reimbursed by health care coverage provided by her
husband’s employer. The appellate court reversed, and allowed the wife to recover for the
medical expenses from the tavern owner, despite the payments already received through the
insurance coverage. The court noted that the purposes of the Dram Shop Act are far wider than
simply compensating those injured by intoxicated persons. Rather, the real goal of the Dram
Shop Act is to protect the public by controlling the evils resulting from the liquor trade, and
provide a constraint on those who dispense liquor to the public. Thus, the act is penal, and the
court held that it would be against the goals of the Act to allow tavern owners to decrease their
liability through application of the collateral source rule.
Interplay Between Dram Shop Act and Insurance Guaranty Fund Act
In the recent decision of Rogers v. Imeri, the Illinois Supreme Court created an exception
to the rule that a set-off is taken from the total damages award as opposed to the statutory
damages cap, with claims in which the Insurance Guaranty Fund assumes defense in a case.
In Rogers, plaintiff’s son was killed in a drunk driving accident and the plaintiff sued the
bar that allegedly served the drunk driver, under the Dram Shop Act.481 Prior to going to a jury
trial, the plaintiff received $26,550 from the driver’s liability policy and an additional $80,000
from his own policy; however, while the matter was pending, the defendant’s dram shop liability
insurer was declared insolvent and liquidated, and as a result, the Illinois Insurance Guaranty
Fund took over the defense of the litigation.
The defendant, Insurance Guaranty Fund, filed a motion for summary adjudication of
liability arguing that the maximum liability under the Dram Shop Act in this case was
$130,338.51. The defendant further asserted that the plaintiff had already received $106,550;
and therefore, since the Insurance Guaranty Fund was entitled to a set-off for insurance payments
from other sources, the plaintiff’s maximum possible recovery was the difference between the
sums – $23,788.51. Plaintiff argued that the set-off should be deducted from the jury's eventual
verdict, which may then be reduced to the statutory cap, if necessary. Essentially, the answer
depended on construing two different statutes simultaneously. The Dram Shop Act provides that
480
481
Muranyi v. Turn Verin Frisch-Auf, 308 Ill. App. 3d 213, 719 N.E.2d 366 (2d Dist. 1999).
Rogers v. Imeri, 2013 IL 115860, 999 N.E.2d 340 (2013).
131
the jury shall determine the amount of damages to be recovered without regard to and with no
special instructions as to the dollar limits on recovery. 482 However, under the Insurance
Guaranty Fund Act, the Fund is not a collateral or independent source of recovery, but rather a
source of last resort, whose role as a substitute insurer is subject to certain statutory
limitations set forth in the Act. Under the Guaranty Fund Act, a claimant must “exhaust all
coverage provided by any other insurance policy ... if the claim under such policy arises from the
same facts, injury, or loss that gave rise to the covered claim against the fund … [then] the
Fund’s obligation” is reduced by the amount under such other insurance policy.
The Supreme Court held that the set-off should be applied to the statutory maximum
under the Dram Shop Act. The Supreme Court stated that the requirement that a jury determine
damages in Dram Shop Act cases is simply not relevant to the construction of section 546(a) of
the Illinois Guaranty Fund Act. Under that statute, the Fund's obligation cannot be expanded by a
jury's verdict; it can only be reduced by other insurance. Further, under section 537.2 of the Act,
the Fund “shall be obligated to the extent of the covered claims.” Since under the Dram Shop
Act, the maximum that the Fund could be obligated to pay is the statutory cap, the Court
reasoned that the set-off of the amount that the plaintiffs received from the automobile liability
insurance policies should come from the defendant’s maximum dram shop liability, not the total
damages award.483
What to take from the Dram Shop Act Cases:
Property owners will not he held liable under the Dram Shop Act for merely providing
alcohol at no charge in a social setting such as an employee picnic or reception. Therefore, for
the plaintiff to invoke the Dram Shop Act, the intoxicated individual must have become
intoxicated at the defendant’s establishment, and the intoxication must have been the proximate
cause of the injury. Evidence of the level of intoxication in dram shop cases will be determined
by the jury.
Applying Law in Dram Shop Act Cases to Prevent Liability
Since the Dram Shop Act imposes strict liability against a tavern that serves alcohol to a
person that subsequently injures another, there is no guarantee that an establishment can limit its
liability under the Act, outside of stopping the sale of alcohol altogether. That said, a dram shop
can limit its potential liability for claims under the Dram Shop Act by having a policy in place
where its bartenders/employees are trained to “cut off” patrons that are visibly intoxicated or
have had excessive amounts to drink. By preventing the over serving of alcohol to its patrons, a
dram shop can at least limit the potential that its patrons that were served alcohol will cause
injury to others or become involved in accidents.
482
483
235 ILCS 5/6–21(a)
Id. at 345
132
Recently Enacted Law Affecting Illinois Claims
735 ILCS 5/2-2301
Effective January 1, 2014, a new law was enacted in Illinois, 735 ILCS 5/2-2301, titled
“Settlement of claims; payment,” that places strict deadlines on a settling defendant to tender a
release after confirmation of settlement and make payment of settlement funds to a plaintiff after
receipt of an executed release. The law also imposes potential penalties for a defendant’s failure
to comply with these deadlines. This law applies to all personal injury, property damage,
wrongful death, or tort actions involving a claim for money damages. The law does not apply to
cases in which governmental entities and/or their employees are defendants, or to class action
lawsuits.
735 ILCS 5/2-2301 requires the defendant to tender a release to the plaintiff fourteen (14)
days from written confirmation of the settlement. The defendant then has thirty (30) days after
plaintiff’s tender of an executed release, a court order approving of the settlement (only if
required by law), and all applicable lien releases, to pay the sum of the settlement. In the event
that a defendant does not comply with the payment deadline, plaintiff can file a motion to
enforce the settlement and, upon a hearing before the court, judgment shall be entered against the
defendant for the amount set forth in the executed release, plus costs incurred in obtaining the
judgment, and interest at the rate of nine percent (9%), calculated from the date of the tender by
the plaintiff of the executed release and other required documents set forth above.
Given the new law, it is very important for defendants and their insurers to be cognizant
of the deadlines that are imposed upon them, and to ensure that all settlement payments are made
timely. It is also important in any settlement negotiations for the settling defendant to understand
that if it will not be able to pay the settlement amount in the designated time frame, which may
be a little over a month, then the parties will have to negotiate for a longer deadline prior to
settling. Such negotiations and provisions will become crucial in all settlement agreements in
order to avoid the penalties imposed by the statute for late payment.
Recent Proposed Legislation Regarding Premises Liability Law
Illinois House Bill 3407
Illinois House Bill 3407 was proposed in the Illinois House Rules Committee during the
year of 2013. HB 3407 must be read three (3) times before it can be presented for a vote. HB
3407 only completed its first reading. It is currently pending before the House Rules Committee.
As such, we believe a discussion of the bill and its subject, the Restatement (Third) of Torts, is
warranted.
HB 3407 is an attempt to reenact and change provisions of the Premises Liability Act,
740 ILCS 130 et seq., that were added by Public Act 89-7 which was held to be unconstitutional
in its entirety by the Illinois Supreme Court in Best v. Taylor Mach. Works, 179 Ill. 2d 367, 689
N.E.2d 1057, 228 Ill. Dec. 636 (1997). The reenacted provisions describe the duty of reasonable
care owed to invited entrants by an owner or occupier of premises, and provide that an owner or
133
occupier of land owes no duty of care to an adult trespasser other than to refrain from willful and
wanton conduct that would endanger the safety of a known trespasser from a condition of the
property or an activity conducted on the property. The proposed provisions would apply to
causes of action accruing on or after the effective date of reenactment. The proposed legislation
is consistent with the Restatement (Third) of Torts.
Restatement (Third) of Torts
In 2005, the American Law Institute (ALI) approved nine chapters of the Restatement
(Third) of Torts. At first glance, it appears that the Restatement (Third) of Torts would be a
drastic departure from the corresponding chapters of the current Restatement, the Restatement
(Second) of Torts. However, reviewing the cases that discuss the corresponding chapters of the
Restatement (Second) revealed that the changes may not have as drastic an impact on existing
premises liability litigation as it appeared at first blush.
Under the Restatement (Second), a landowner’s duty is determined based on the status of
the entrant to the land, as well as an analysis of the risk. By contrast, the Restatement (Third)
adopts a single possessor duty of “reasonable care” to all entrants to the possessor’s land,
including trespassers. The “reasonable care” standard applies regardless of the source of the risk,
in all situations except as to flagrant trespassers” for natural conditions on the land. Under the
Restatement (Third), a flagrant trespasser is to be so classified on a case-by-case basis according
to the degree to which their entry invades the possessor’s right to exclusive possession. The
drafters of the Restatement intended Courts to use this as a fairness based determination.
However, the Illinois General Assembly has already enacted the Premises Liability Act
(740 ILCS 130/1), which, like the Restatement (Third) of Torts, abolishes the distinction of an
entrants’ status and creates a duty of reasonable care to all entrants. Specifically, the Act states,
in pertinent part:
§ 2. The distinction under the common law between invitees and licensees
as to the duty owed by an owner or occupier of any premises to such
entrants is abolished. The duty owed to such entrants is that of reasonable
care under the circumstances regarding the state of the premises or acts
done or omitted on them.
Thus, the Restatement (Third) may have very limited impact on Illinois law due to the General
Assembly’s elimination of the common law distinction between invitees and licenses.
However, to those states that still adhere to the rigid plaintiff classification system of the
Restatement (Second) to determine the duty owed by landowners/operators to plaintiffs, the
Restatement (Third) will mark a large departure from existing law by eliminating this system.
The Restatement (Third), instead, will force these states to adopt a unitary landowner/operator
duty standard of “reasonable care” to all entrants to the landowner/operator’s land, including
trespassers, with the sole exception of “flagrant trespassers.”
134
Therefore, although adopting a unitary duty standard of care owed by a
landowner/operator to his or her land’s entrants in accordance with Restatement (Third) seems to
differ considerably from the status-based traditional rule of the Restatement (Second), this rule
will not have much impact on states like Illinois, which have already applied the unitary standard
of care to invitees and licensees.
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Wisconsin Premises Liability Law
Negligence Standard
The plaintiff must show the existence of a duty of care on the part of the defendant, a
breach of that duty, a causal connection between the breach and the injury, and actual loss or
damage to maintain a cause of action for negligence.484 Wisconsin adopted Justice Andrews’
minority view from Palsgraf v. Long Island R.R. Co.485 Wisconsin courts have stated that every
person owes a duty of care to everyone else to refrain from conduct which may result in harm.486
A person breaches this duty when he or she fails to exercise “ordinary care,” which is defined as
the degree of care that an ordinary person would exercise under similar circumstances.487
Wisconsin recognizes a professional standard of care.488 Wisconsin has not adopted the
rule that the existence of a special relationship creates a higher duty of care; however, if a special
relationship exists, the court may find an exception to the general rule that there is no duty to
control the actions of third parties or protect others from harm.489
The standard of care applied to the actions of children is that of an ordinary child of the
same age, intelligence, and experience under the same circumstances.490 Children less than seven
years old are conclusively presumed incapable of negligence of contributory negligence. 491
Mentally disabled individuals are held to the same standard of care as a person who has normal
mental capacity.492
Causation
A plaintiff must demonstrate that the defendant’s negligence was a “substantial factor” in
producing the harm or injury.493 As such, there may be several substantial factors contributing to
the same harm or injury.494 As noted above, Wisconsin follows Palsgraf’s minority view, not
usual proximate cause analysis. Still, courts may decline to find liability based upon a multifactor, “public policy” analysis.495
Safe - Place Statute and Negligence Claims
Premises liability under Wisconsin law is not only governed by common law negligence
rules, but also by the Wisconsin Safe-Place statute. The Safe-Place statute (W.S.A. 101.11)
provides in part:
484
Rockweit v. Senecal, 197 Wis. 2d 409, 418, 541 N.W.2d 742 (1995).
Pfeifer v. Standard Gateway Theater, Inc., 262 Wis. 229, 55 N.W.2d 29 (1952).
486
Peters v. Mendard, Inc., 224 Wis. 2d 174, 589 N.W.2d 395 (1999).
487
Osbourne v. Montgomery, 203 Wis. 223, 234 N.W. 372 (1931).
488
Nowatatske v. Osterloh, 198 Wis. 2d 419, 543 N.W.2d 265 (1996).
489
DeBauche v. Knott, 69 Wis. 2d 119, 122-23, 230 N.W.2d 158, 160-161 (1975).
490
Brice v. Milwaukee Auto Ins. Co., 272 Wis. 520, 76 N.W.2d 337 (1956).
491
Wis. Stat. § 891.44.
492
Burch v. American Family Mut. Ins. Co., 198 Wis. 2d465, 475, 543 N.W.2d 277 (1996).
493
Pfeifer v. Standard Gateway Theater, Inc., 262 Wis. 229, 55 N.W.2d 29 (1952).
494
Sampson v. Laskin, 66 Wis. 2d 318, 325, 224 N.W.2d 594 (1975).
495
Smaxwell v. Bayard, 2004 WI 101, 682 N.W.2d 923.
485
136
Every employer shall furnish a place of employment which shall be safe for
employees therein and for frequenters thereof and shall furnish and use safety
devices and safeguards, and shall adopt and use methods and processes
reasonably adequate to render such employment and places of employment safe,
and shall do every other thing necessary to protect the life, health, safety, and
welfare of such employees and frequenters. Every employer and every owner of a
place of employment or a public building now or hereafter constructed shall so
construct, repair or maintain such place of employment or public building as to
render the same safe.”
The Safe-Place statute is intended to place a greater responsibility on employers and
owners of public buildings for the protection of employees and the public within the building
that goes beyond what is required by the common law.496 The Safe-Place statute does not create
a distinct cause of action, but rather provides a higher duty than the duty of ordinary care
regarding certain acts by employers and owners.497 However, even if a plaintiff fails to establish
a violation of this higher duty of care by an employer, such failure does not bar the plaintiff from
proceeding with a common law negligence claim.498 However, the Safe-Place statute does not
require that the owner of a place of employment or a public building be the insurer of his
employees or frequenters of the premises.499
The Wisconsin Supreme Court explained the relationship between the safe place statute
and common law negligence claims in Megal v. Green Bay Area Visitor & Convention Bureau,
Inc.500 The court overturned several prior cases that held that if no violation of the Safe-Place
statute was found, then a common law negligence claim could not be maintained. The court
reasoned that the Safe-Place statute is aimed at addressing unsafe conditions, not simply
negligent acts. Therefore, the court held that the Safe-Place statute does not release employers
and owners of public buildings from their duty to act with reasonable care, as every other person
in the state of Wisconsin is required to do. Although an employer may not violate the higher
standard of care in the Safe-Place statute, they may still violate the lower standard of common
law negligence by committing a negligent act.
In addition, the Eastern District of Wisconsin in Anderson v. Proctor & Gamble Paper
Products Company, recently elaborated on the Safe Place Statute and noted that independent
contractors doing work on the premises are considered “frequenters” working in a place of
employment for purposes of the statute.501 In that case, the plaintiff was an electrical contractor
who was hired to perform work on a building for the defendant. Unbeknownst to the plaintiff,
the building contained a significant amount of asbestos, which resulted in the plaintiff being
diagnosed with non-small cell lung cancer in July 2009. Throughout the time that the plaintiff
was working on the defendant’s building, the defendant employed inspectors who would
regularly check that the repairs were completed correctly. The plaintiff asserted that he never
496
Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 274 Wis.2d 162, 682 N.W.2d 857 (Wis. 2004).
Barry v. Employers Mutual Casualty Company, 245 Wis.2d 560, 630 N.W.2d 517 (Wis.2001).
498
Id. at 866.
499
Stack v. Great Atl. & Pac. Tea Co., 35 Wis.2d 51, 150 N.W.2d 361 (1967).
500
Id. at 371.
501
Anderson v. Proctor & Gamble Paper Prods. Co., 2013 WL 595214 (E.D. Wis. 2013).
497
137
received warnings from those inspectors about the dangers of asbestos or even that the pipe
insulation contained asbestos.
The court held that the defendant was liable because the statute protects against unsafe
“structural defects” and any unsafe conditions associated with the structure of a building. Under
the safe place statute, an owner is only absolved of its statutory duty if it relinquishes complete
control of the premises to the contractor, and the premises are in a safe condition at that time. In
this case, the owner did not relinquish complete control of the premises, but merely had the
plaintiff complete electrical work thereon. Therefore, premises owners owe them the same duty
to construct, repair and maintain their premises so as to make them safe while working.
Notice
The duty of the owner to repair and maintain a public building or place of employment
arises when the owner has actual or constructive notice of the defect. 502 Where the defect is a
structural defect, notice is unnecessary. An owner or employer has constructive notice when the
defect or condition has existed for a long enough time that a reasonably diligent property owner
would have discovered it and repaired it.503 A claim of constructive notice requires evidence as
to the length of time that the condition existed.504
The length of time required for the existence of a defect or unsafe condition that is to
constitute constructive notice depends on the surrounding facts and circumstances, including the
nature of the business and the nature of the defect.505 In regards to unsafe conditions that are
temporary or transitory, and are caused by the conduct of the owner of the premises or may
reasonably be expected from his method of operation, a much shorter period of time, and
possibly no appreciable period of time under some circumstances, need exist to constitute
constructive notice.506 Therefore, temporal evidence may be unnecessary when the method of
merchandizing articles for sale to the public in the area which the injury occurred makes the
harm that occurred at that location reasonably foreseeable.507
In Strack, the plaintiff was shopping in a grocery store in the produce area where there
were tables displaying fruit for sale in the center of a wide aisle. The plaintiff slipped on a small
Italian prune that was on the floor and injured her back and leg. The plaintiff brought a claim
based on violation of the Safe-Place statute. The plaintiff did not present any evidence that the
prune had been on the floor for any appreciable amount of time, as usually would be required
under the general rule of constructive notice. However, the Supreme Court of Wisconsin held
that the grocery store had constructive notice because of the method the store used of
merchandizing the produce. The court reasoned that the produce was displayed in such a way
that customers would handle them, and some may be dropped to the floor unintentionally. With
such possibilities, the court held that the grocery store was required to use reasonable measures
502
Mair v. Trollhaugen Ski Resort, 291 Wis.2d 132, 715 N.W.2d 598 (Wis. 2006).
Bain v. Tielens Const., Inc., 294 Wis.318, 718 N.W.2d 240 (2006).
504
May v. Skelley Oil Co, 83 Wis.2d 30, 264 N.W.2d 574 (1978).
505
Id. at 37.
506
Strack v. Great Atl. & Pac. Tea Co., 35 Wis.2d 51, 150 N.W.2d 361 (1967).
507
Megal v. Green Bay Area Visitor & Convention Bureau, 274 Wis.2d 162, 682 N.W.2d 857 (Wis. 2005).
503
138
to discover and remove such debris from the floor and maintain greater vigilance to meet the
higher standard of care imposed by the Safe-Place statute.
Similarly, in Steinhorst v. H.C. Prange Co., the plaintiff slipped on spilled shaving foam
in front of a cosmetic counter in a store.508 The counter had numerous tester bottles that the
public was encouraged to use. The Court held that it did not matter if the shaving foam had
gotten on the floor by accident, negligence of a shopper, or intentionally by children playing
around, the store should have foreseen such conduct and taken steps to keep the area clear of
spilled shaving foam.
Snow and Ice Accumulation
The Safe-Place statute requires that employers and owners of public buildings do
everything reasonably necessary to maintain the premises as free from danger as the nature of the
premises reasonably permits.509 Failure to properly address snow and ice accumulation can be
considered a failure to maintain the premises as free from danger as they reasonably permit, and
employers and owners of public buildings need to be aware of their duty to address such
accumulation. 510
In Zernia v. Capitol Court Corporation, the plaintiff slipped and fell on a patch of ice in
the parking lot of a shopping center.511 The plaintiff alleged a violation of the Safe-Place statute
because the owner of the shopping center did not live up the higher duty of care to maintain the
lot as safe as its nature would reasonably permit. However, the defendant corporation had a
maintenance crew that had been sanding and salting the parking lot on the same morning of the
plaintiff’s fall. The Court held that since the maintenance crew had continued to apply sand and
salt as the morning went on, that they had fulfilled the heightened duty of care under the SafePlace statute. The Court reasoned that the owner’s duty did not extend to making every inch of
the parking lot absolutely safe.
However, property owners also need to be aware of the possibility of being held liable for
snow and ice accumulation on public sidewalks abutting the property. Generally, owners and
occupiers of a property abutting a public sidewalk are not responsible to individuals for any
injuries resulting from the sidewalk accumulation of snow and ice created by natural causes.512
Under Safe-Place statute, public sidewalks abutting a business owner’s property are not
considered places of employment, and therefore are not covered by the statute.513 However, if a
business owner exerts such control over a public sidewalk to the exclusion of members of the
public, the sidewalk may then be considered a place of employment and the Safe-Place statute
would apply.514
508
Steinhorts v. H.C. Prange Co., 48 Wis.2d 679, 180 N.W.2d 525 (Wis. 1970).
Zernia v. Capitol Court Corporation, 21 Wis.2d 164, 124 N.W.2d 86 (Wis. 1963).
510
Cross v. Leuenberger, 276 Wis. 232, 65 N.W.2d 35 (Wis. 1954).
511
Zernia, 124 N.W.2d at 89.
512
Walley v. Patake, 271 Wis. 530, 74 N.W.2d 130. (Wis. 1956).
513
Miller v. Welworth Theaters, 272 Wis. 355, 75 N.W.2d 286 (Wis. 1956).
514
Schwenn v. Loraine Hotel Company, 14 Wis.2d 601, 111 N.W.2d 495 (Wis.1961).
509
139
Although property owners are generally not liable for accumulation of ice and snow on
the public sidewalks abutting their property, they may become liable if they actively do
something to create the snow and ice condition.515 Such actions as diverting water onto the
public sidewalk and shoveling snow from the premises onto the public sidewalk may create an
artificial accumulation of snow or ice that may subject a property owner to liability.516
Affirmative Defenses
The Wisconsin legislature long ago abolished contributory negligence as an absolute bar
to recovery for injuries, death, or property damage.517 The doctrine is now encompassed and
governed by Wisconsin’s Comparative Negligence Statute.
Comparative Negligence
Wisconsin’s comparative negligence law applies to actions for death, personal injury, or
property damages.518 A plaintiff may recover damages when his or her negligence does not
exceed the negligence attributed to the person against whom recovery is sought. The negligence
of each defendant is separately measured against any negligence attributed to the plaintiff (see
Joint and Several Liability section). A court may grant summary judgment for the defendant
when the plaintiff, as a matter of law, is at least 51 percent contributorily negligent. 519 The
plaintiff’s recovery is reduced in proportion to the percentage of negligence attributed to him or
her.520
Comparative negligence principles likewise will reduce the amount of damages recovered
in a strict products liability action.521 The amount of damages a plaintiff recovers will be reduced
by the percentage of negligence attributed to him or her. However, the comparison is only made
as between the plaintiff and the “product.” Consequently, the comparison is not applied as to
each individual defendant in the chain of commerce.522
Comparative negligence principles will not proportionately reduce an award of punitive
damages.523 A plaintiff’s ordinary negligence would still be compared to a defendant’s
negligence, even if the defendant’s negligence would form the basis for the imposition of
punitive damages.
515
Walley v. Patake, 271 Wis. 530 at 535.
Holschback v. Washington Park Manor, 280 Wis.2d 264, 649 N.W.2d 492 (Ct. App. 2005).
517
Wis. Stat. § 895.045(1).
518
Id.
519
Jankee v. Clark County, 2000 WI 64, 235 Wis. 2d 700, 612 N.W.2d 297.
520
Wis. Stat. § 895.045(1).
521
Fuchsgruber v. Custom Accessories, Inc., 2000 WI 81, 244 Wis. 2d 758, 628 N.W.2d 833.
522
Id.
523
Tucker v. Marcus, 142 Wis. 2d 425, 418 N.W.2d 818 (1988).
516
140
Assumption of Risk
Express assumption of risk, i.e. by way of contract, remains a viable absolute defense in
Wisconsin.524 However, implied assumption of risk is now framed in terms of comparative
negligence principles.525 The Wisconsin Court of Appeals has also held that where a plaintiff
confronts an open and obvious danger, it is merely an element to be considered by the jury in
apportioning negligence, and will not bar plaintiff’s recovery.526
Wisconsin’s statute of limitation for causes of action seeking damages to recover for
“injuries to the person” and wrongful death is three years.527 The beginning of the period is either
the date when the cause of action accrues or as otherwise specified by law.528 The “discovery”
rule applies, which states that when a plaintiff’s damages are not immediately identifiable, the
cause of action accrues when the plaintiff knew or reasonably should have known of the
injury.529
Criminal Acts of Third Parties
Under Wisconsin law, a proprietor of a place of business who holds it out to the public
for entry for business purposes is liable to members of the public while on the premises for such
purposes for harm caused by the accidental negligence or intentional acts of third persons.
Recently, the Wisconsin Court of Appeals attempted to more clearly define “premises” as it
relates to a tavern owner’s duty to protect a patron from third parties while that patron is on the
premises. In Flynn v. Audra’s Corporation, the plaintiff was a patron at defendant’s bar when a
group of unruly customers were asked to leave.530 Along with a large group of people, the
plaintiff followed the unruly customers outside to the parking lot, where a fight ensued and the
plaintiff was punched in the head. The plaintiff then sued the defendant for beach of its duty to
protect him from harm caused by third persons while on the tavern premises. The defendant
asserted that the parking lot was a Wisconsin Department of Transportation right-of-way and not
legally owned by the tavern. The plaintiff claimed that even if the defendant did not own the
land, it was used as a parking lot for the defendant’s benefit, and therefore, it was considered the
defendant’s premises. The circuit court denied the defendant’s motion for summary judgment,
stating that the jury should decide whether that location is on the defendant’s premises and the
defendant appealed.
The Wisconsin Court of Appeals determined, as a matter of law, that the adjacent parking
lot was included in the defendant’s premises. The court noted that “premises” means more than
simply the property actually owned by a defendant and will include areas adjacent to an owner’s
property when that property is used and maintained by the owner. The court stated that requiring
524
Yauger v. Skiing Enterprises, Inc., 206 Wis. 2d 76, 81, 557 N.W.2d 60 (Ct. App. 1996).
Polsky v. Levine, 73 Wis. 2d 547, 243 N.W.2d 503 (1974).
526
Wagner v. Wisconsin Mun. Mut. Ins. Co., 230 Wis. 2d 633, 601 N.W.2d 856 (Ct. App. 1999).
527
Wis. Stat. § 893.54.
528
Id. § 893.04.
529
Hansen v. A.H. Robbins, Inc., 113 Wis. 2d 550, 560, 335 N.W.2d 578 (1983).
525
530
Flynn v. Audra’s Corp., 332 Wis.2d 253 (Wis. App. 2011).
141
that a tavern legally own the property would elevate form over substance. Moreover, the court
determined that because the defendant used the premises as a parking lot and because the
defendant plowed the parking lot in the winter, the defendant exhibited enough control and
maintenance over the property to have the property fall within the tavern “premises.” The Flynn
case illustrates that Wisconsin courts continue to place a high duty on a proprietor of a place of
business who holds it out to the public for entry for business purposes in that such proprietor will
be liable to members of the public while on the premises for such purposes for harm caused by
the accidental negligence or intentional acts of third persons
However, such a proprietor is only liable if, by the exercise of reasonable care, the
proprietor could have discovered that such acts were being done or were about to be done and
could have protected the members of the public by controlling the conduct of the third persons,
or by giving a warning adequate to enable them to avoid harm.531 If the character of the business
is such that an owner should expect that careless or criminal third persons will be present, either
generally or at a particular time, that owner is under a duty to employ a reasonably sufficient
number of servants to afford reasonable protection.532
In Weihert, a restaurant patron was beaten and injured when an altercation broke out
between customers. The owner of the bar was in the kitchen cooking at the time the fight broke
out. Neither of the patrons who were injured in the fight had any idea that a fight was about to
break out, and both even testified that the fight took them completely by surprise. A waitress did
not report that a fight had broken out to the owner until after the assault had occurred. No
evidence was given that the employees had any knowledge that the assailant had a propensity for
violence, nor did his behavior that night indicate that he might cause an altercation. The police
had only visited the restaurant twice over the previous six years prior to the altercation. The
Court held that the owner could not have discovered that the fight was about to occur, or that the
owner could have warned the plaintiffs that any altercation might happen.
An owner’s failure to deter or prevent an altercation after one has occurred or is known
to be imminent may subject them to liability under Wisconsin law. In Kowalczuk v. Rotter, a
patron was attacked at the bar in the presence of the bartender.533 A patrolling police officer later
discovered the patron was being beaten by three people on a sidewalk near the tavern.
Undisputed evidence was presented that the tavern used no means to deter the victim’s attackers
after the bartender witnessed the initial assault. The court found that the tavern’s failure to act
established a prima facie case of negligence. The court reasoned that while the employees of the
tavern had no warning that an attack was imminent, the tavern still had a duty to use reasonably
means to further deter the attack by calling the police.
However, in Delvaux v. Vanden Langenberg, the Wisconsin Supreme Court found that a
tavern owner’s actions to separate quarreling parties in the bar were sufficient to shield the
tavern from liability.534 In Delvaux, two patrons become involved in an argument and started
shoving one another. The tavern owner separated the two patrons and had them sit at opposite
531
Weihert v. Piccione, 273 Wis. 448, 78 N.W.2d 757 (Wis. 1956).
Id. at 761.
533
Kowalczuk v. Rotter, 63 Wis.2d 511, 217 N.W.2d 332 (Wis. 1974).
534
Delvaux v. Vanden Langenberg, 130 Wis.2d 464, 387 N.W.2d 751(Wis. 1986).
532
142
ends of the bar. After one of the quarreling patrons left, the owner convinced the remaining
patron to stay in the bar in order to avoid further conflict outside the tavern. Although the
patrons did subsequently become involved in a fatal altercation, the Court noted the steps taken
by the tavern owner to prevent further fighting and held that the tavern was not liable for any
later injuries.
Innkeepers Liability for Criminal Acts of Third Parties
Inns and hotels also owe their guests a duty of care to protect them from criminal acts of
third parties while on the premises. In Peters v. Holiday Inns, Inc., a hotel guest was assaulted
and robbed in his hotel room.535 The guest brought suit against the hotel alleging that it was
negligent for allowing the two intruders access to his room. The court held that a hotel has the
duty to exercise ordinary care to provide adequate protection for its guests and their property
from criminal acts of third parties. In exercising this standard of care, a hotel has to provide
security that is commensurate with the facts and circumstances that are, or should be, apparent to
the ordinarily prudent person. As such, a hotel’s standard of care in providing security will vary
according its location and surrounding circumstances. The court applied the ordinary care test to
the facts at issue, and found that the presence of one of the assailants in the lobby at 3:00 a.m.
was a suspicious circumstance that could have required the hotel to monitor his where about as
such, summary judgment was precluded.
Dram Shop Liability
Dram shop liability under Wisconsin law provides for complete immunity for dram shop
owners from civil liability for the tortious acts of an intoxicated customer. The Civil Liability
Exemption for dram shop owners, W.S.A. 125.035(2), provides in part:
“A person is immune from civil liability arising out of the act of procuring alcohol
beverages for or selling, dispensing or giving away alcohol beverages to another person.”
Therefore, in contrast to Illinois dram shop liability law, a dram shop owner will not be
held strictly liable for the acts of the customers to whom it serves intoxicating beverages.
However, there are two exceptions enumerated in the statute whereby a dram shop owner
may still be held liable for serving intoxicating beverages. The statute provides that the immunity
does not apply if the dram shop owner causes the tortfeasor to consume the alcohol by either
force, or by representing that the beverages contain no alcohol. The second exception, as
stated in WSA 125.035(4)(b), provides that the immunity provision shall not apply if a dram
shop owner serves alcohol to an underage person who subsequently injures a third party.
To be held liable under the statute for serving a minor, a dram shop owner must have
served alcohol to an underage person that they knew, or should have known, was under the legal
drinking age, and that the alcohol served to the underage person was a substantial factor in
causing an injury to a third party. In determining whether or not a dram shop owner knew or
535
Peters v. Holiday Inns, Inc., 89 Wis.2d 115, 278 N.W.2d 208 (Wis. 1979).
143
should have known that an individual was underage, all relevant circumstances surrounding the
sale or dispensation of the alcohol need to be considered.
However, there is a defense to a dram shop owner’s liability for serving alcohol to a
minor. If a dram shop owner was actively misled about the minor’s age, then the exception to
the statutory immunity does not apply.536 A dram shop owner will not be held liable if all of the
following conditions are satisfied: 1) the underage person falsely represents that he or she has
attained the legal drinking age; 2) the underage person supports the representation with
documentation that he or she has attained the legal drinking age; 3) the alcoholic beverages are
provided in good faith reliance on the underage person’s representation that he or she has
attained the legal drinking age; 4) the appearance of the underage person is such that an ordinary
and prudent person would believe that the he or she had attained the legal drinking age. 537 Thus,
even if an underage drinker was served alcohol and consequently injured a third person, the party
who supplied the alcohol may be able to avoid liability.
The Wisconsin statute exempting dram shop owners from liability has even withstood a
constitutional challenge as to its validity relating to the distinction made between serving adults
and minors. In Doering v. WEA Ins. Group, the plaintiff was seriously injured in a car accident
caused by an intoxicated adult who the tavern owner knew was drunk and did not have a license
to drive.538 The trial court denied a motion to dismiss finding that the statute was
unconstitutional on equal protection grounds. The court found that the statute created two
classes of victims -- those injured by adults and those injured by minors. The court held that
allowing only one class of victims to recover, those injured by intoxicated minors, the statute
violated the equal protection clause. The Supreme Court of Wisconsin reversed, holding that the
statute was rationally related to a legitimate government purpose. The Court held that the statute
was designed to protect underage persons by making dram shop owners more vigilant about
underage drinking, and was thus constitutional.
536
Anderson v. American Family Mut. Ins. Co., 276 Wis.2d 121, 671 N.W.2d 651 (Wis. 2003).
W.S.A. §125.035(4)(b).
538
Doering v. WEA Insurance Group, 193 Wis.2d 118, 532 N.W.2d 432 (Wis. 1995).
537
144
Please visit our website at www.koponairdo.com, where we have placed an electronic
version of “Retailers’ and Landowners’ Liabilities” in our electronic law library. We will be
updating our online law library regularly.
Thank you for your continued support.
145

Retailers` and Landowners` Liabilities

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