FIRM’S “30 COMMON LAW & TORT IMMUNITY ACT DEFENSE RULES AVAILABLE TO DEFENDANTS IN ILLINOIS”
The firm’s “30 Rules” brochure is available to anyone who desires a copy
It contains 30 rules of law helpful to the defense with citations and quotes from applicable statutes and, at least, three Illinois cases supporting each rule discussed. It is 99 pages and a helpful information tool — case citations at your fingertips.
The following “Table of Contents” shows what each of the 30 rules involves:
The Complaint: Illinois requires the Complaint to plead “facts” — Teter v. Clemens: but, Federal Court allows “Notice Pleading” if some facts pleaded show a plausible claim against the defendant — Ashcroft v. lqbal.
Rule No. 2
Premises liability: No liability for defects on the premises unless the owner has notice of the defect in time to repair prior to the accident. Common law/case law rule and Tort Immunity Act rule (745 ILCS 10/3-102(a)).
Rule No. 3
Premises liability: A local public entity has a duty to maintain its premises in reasonably safe condition only for “intended and permitted users” (not trespassers). Tort Immunity Act, 745 ILCS 10/3-102(a).
Rule No. 4
Premises liability: A local public entity is immune from liability for “failure to supervise” an “activity on or use of public property” unless the law requires supervision — a statute, code or ordinance requires supervision. Tort Immunity Act, 745 ILCS 10/3-108(b).
Rule No. 5
Abused and Neglected Child Reporting Act (325 ILCS 5/4) does not grant a cause of action for damages for its violation in failing to report child abuse.
Rule No. 6
Premises liability: A local public entity is not liable for a condition of recreational property unless it is guilty of wilful and wanton conduct. Tort Immunity Act, 745 ILCS 10/3-106.
A. What is recreational property — Rexroad v. City of Springfield, 207 lll.2d 33, 796 N.E.2d 1040 (2003).
Rule No. 7
Premises liability: A property owner is not liable for injuries to persons on property that arise from the construction of improvements to the property more than 10 years old. (745 ILCS 5/13-214).
Rule No. 8
Premises liability: The duty a local public entity owes to maintain its property safe for pedestrians: streets, sidewalks, parking spaces, parkways and curbs — different and distinct duties.
Rule No. 9
Premises liability: Ice and snow and no duty to remove a natural accumulation of ice or snow or spread salt, sand or ashes and no liability if ice and snow removed, but a thin glaze of ice remains thereafter.
Rule No. 10
Premises liability: No liability on property owner for rainwater tracked into premises from outside by patrons or visitors as rainwater is a natural accumulation.
Rule No. 11
Premises liability: A property owner is not liablefor an “open and obvious danger” on the property because it is not reasonably foreseeable that an entrant or visitor will voluntarily encounter an “open and obvious danger”.
Rule No. 12
Premises liability: The two exceptions to the “open and obvious danger”/”no liability” rule: (1) the “momentary distraction/forgetfulness” rule; and (2) the deliberate encounter/economic compulsion rule.
Rule No. 13
Public employees: Discretionary or judgment-call immunity for public employees making a policy decision balancing conflicting interests of safety, efficiency, time, resources and manpower and exercising discretion by making a judgment-call and selecting the best method. Tort Immunity Act, 745 ILCS 10/2-201, discretionary immunity.
Rule No. 14
Statute of limitations: Tort Immunity Act one-year statute of limitations for adults and one-year for a minor after he/she turns age 18. Tort Immunity Act, 745 ILCS 10/8-101.
Rule No. 15
Libel or slander: A local public entity is not liable for written or oral defamation, libel or slander. Tort Immunity Act, 745 ILCS 10/2-107.
Rule No. 16
Construction accidents: A property owner or general contractor is not liable for injuries to personnel on the construction site unless the owner or general contractor controls “the means, methods or operative details” of the work being done by the contractor whose work causes the injury (Range! v. Brookhaven).
Rule No. 17
Contributory negligence: A plaintiff’s own fault or contributory negligence bars the plaintiff from recovery if plaintiff is more than 50% at fault under § 2-1116 of the Code of Civil Procedure. (745 ILCS 5/2-1116).
Rule No. 18
Defendant’s own internal policies, procedures or rules: A defendant’s own policy manual, internal rules, procedures and policies do not impose a duty which, if violated, can be negligence, unless such policies, procedures or rules are mandated by the law — a statute, code or ordinance.
ANSI and BOCA codes impose no duty, the violation of which can be negligence, unless they have the “force of law” — are mandated to be followed by a statute, code or ordinance.
Rule No. 19
Discovery: No discovery, depositions, which involve “factual matters” are permitted while a § 2-615 motion to dismiss the complaint based upon a question of law is pending (735 ILCS 5/2-615) (Storm v. Cuculich).
Rule No. 20
Affidavits: An affidavit as required under Supreme Court Rule 191 must comply with a 5-pronged test: (1) be based on personal knowledge; (2) state particular facts: (3) provide copies of documents referred to; (4) contain no conclusions without facts; and (5) consist of evidence which the witness can testify to at trial.
Rule No. 21
Spoliation of evidence: For a cause of action for spoliation of evidence to exist against a party, a 3-pronged test is necessary: (1) the party must possess or have possessed the evidence; (2) a reasonable person would know the evidence was necessary for a lawsuit; and (3) the missing evidence must be the proximate cause of a party’s inability to prove a cause of action.
Rule No. 22
Proximate cause: For a defendant to be liable, the defendant’s conduct must be the proximate cause of the accident: (1) it must be the “cause in fact” under the “but for” test; and (2) it must be the “legal cause” or what would reasonably be the expected likely result of the defendant’s conduct.
Rule No. 23
Traffic Control Devices — Signs, Lights, Signals: A local public entity is immune from liability for failure to “initially install” stop signs, traffic lights, warning devices, lighting and barricades under § 3-104 of the Tort Immunity Act, 745 ILCS 10/3-104.
Rule No. 24
Employer liability for employees: An employer is not liable under respondeat superior for the acts or omissions of its employees who act outside the scope of their employme — performing acts outside of work and acts not serving the interests of the employer.
Rule No. 25
Weather Immunity: § 3-105, weather immunity, of the Tort Immunity Act grants local public entities immunity from liability for injuries caused by the effects of weather — wind, rain, ice, snow, flood and hail — upon streets, highways, alleys, sidewalks and other “public ways or places or ways adjoining.” Tort Immunity Act, 745 ILCS 10/3-105.
Rule No. 26
Guess conjecture and speculation not evidence, not proof: A plaintiff must prove its case by physical, objective evidence and mere guess, conjecture and speculation is not sufficient and a jury cannot be allowed to speculate.
Rule No. 27
Execution or enforcement of the law: A local public entity is not liable for negligence when executing or enforcing the law, but can be liable for wilful and wanton conduct under § 2-202, execution or enforcement of the law immunity. Tort Immunity Act, 745 ILCS 10/2-202.
Rule No. 28
Police protection, services, failure to arrest immunity: § 4-102, failure to prevent crime, provide police protection or adequate police protection immunity, grants immunity for failure to provide adequate police protection, prevent crime, solve crimes or apprehend criminals. Tort Immunity Act, 745 ILCS 10/4-1 02.
Rule No. 29
False Pleading and payment of costs and attorneys’ fees for such: Supreme Court Rule 137 provides a signature on a pleading certifies the pleading has a reasonable basis “in fact” and “in law” based upon a preliminary pre-filing investigation and the failure of the pleading to have a reasonable basis “in law” or “in fact” subjects the party to paying the opponent’s attorneys’ fees and costs (S.Ct. Rule 137).
Rule No. 30
Discovery limited to material and relevant facts and evidence: Supreme Court Rule 201 limits discovery to what is material (an issue raised in the Complaint) and relevant (evidence that tends to prove a material fact or issue in the case).