10-26-15; Two Big Wins in Court for Brad Smith, JD; Belleville News-Democrat Outs a Questionable Claim/Settlement for Fisherman/Hunter; John Karis, JD Reports on Important Construction Law Ruling...
/Synopsis: Big Wins for Bradley J. Smith, J.D. KCB&A’s GL Defense Team Leader!
Editor’s comment: We are very happy to report two amazing success stories on challenging litigation by KCB&A Defense attorney Brad Smith.
Estate of Kroon v. Garda CL Great Lakes, Inc, 2013-L-2007 – Solid Jury Verdict in Multi-Million Dollar Claim Brought by Decedent’s Estate in MVA.
After a week and a half of trial and approximately five hours of deliberations, a Cook County Jury found Decedent 50% comparatively at fault for her own death and ultimately awarded only $15,000.00 in pecuniary damages in a case tried by Bradley J. Smith of Keefe, Campbell, Biery & Associates, LLC. Decedent’s estate filed suit against Defendant Garda alleging its employee/driver was negligent in operating the armored truck at approximately 2:20 a.m. on New Year’s Day 2013 on East State Street in Rockford, Illinois.
While the event occurred in Winnebago County, the litigation was brought in the much more Plaintiff-friendly Cook County. Motions to change venue were rejected by the trial court.
Plaintiff sought a range of pecuniary damages up to $3,500,000.00. Decedent made contact with the armored truck within the farthest left lane of the eastbound lanes of a six-lane highway. She entered the highway outside any marked crosswalk and had been drinking during New Year’s Eve festivities. The Garda employee/driver and his passenger did not see Decedent prior to the impact with the truck, but testified they were keeping a proper lookout and scanning the roadway for hazards.
Attorney Smith successfully argued Defendant’s employee/driver was not negligent and further Decedent’s death was caused by her own lack of due care, including becoming intoxicated and impaired, crossing a dark area of roadway while wearing dark clothing, not keeping a proper lookout, and placing herself on a 6-laned roadway at 2:20 a.m. in the morning. The above matters are still subject to litigation and are subject to appeal. This article is in no way meant to influence the outcome of any potential appeals.
In David Gevas v. Boswell Pharmacy Services, Inc., et al., 12-cv-1297, Federal Judge, Northern District of Illinois John Z. Lee granted summary judgment for Keefe, Campbell Biery & Associates’ client, a pharmaceutical company. Defense attorney Bradley J. Smith argued in his motion for summary judgment Defendant is not subject to 42 U.S.C. § 1983 as it is not a state actor subject to liability. Smith further argued Plaintiff failed to bring forth any evidence demonstrating Defendant had a policy or pattern of practice that was deliberately indifferent to Plaintiff’s claimed seriousmedical needs.
Plaintiff is a prisoner at Stateville Correctional Facility located in Crest Hill, Illinois. Plaintiff argued Defendant was deliberately indifferent to his alleged serious medical needs by failing to timely fill prescription medications for Plaintiff. Plaintiff also argued Defendant was a state actor as it maintained contracts with a private company to fill pharmaceutical products for the Stateville prison population. In turn, the private company contracts with the Illinois Department of Corrections for the purpose of providing medical services to its prison population.
Federal Judge Lee granted Brad’s motion for summary judgment and dismissed Defendant from the case. Judge Lee based the summary judgment decision on Plaintiff’s lack of evidence supporting a theory Defendant was deliberately indifferent to Plaintiff’s alleged serious medical needs. The above matters are still subject to litigation and are subject to appeal. This article is in no way meant to influence the outcome of any potential appeals or further litigation.
If you manage motor vehicle, general liability or employment law claims, Brad leads a team of five lawyers that capably handle such litigation with great success at very reasonable hourly rates. We provide cost-effective analysis and case management. We are approved by every major insurance carrier to handle your toughest claims. Feel free to reach out to Brad Smith for advice and counsel at bsmith@keefe-law.com.
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Synopsis: The Belleville News-Democrat Outs Another Questionable Southern IL WC Claim. When Will Mandatory Light Work Ever Be Required in This State?
Editor’s comment: We’ve had several readers forward news from Illinois’ top WC-reporting newspaper The Belleville News-Democrat and reporter George Pawlaczyk about another challenging IL work comp claim by a prison guard from their area.
A Illinois Department of Corrections guard who became the target of a fraud investigation after he participated in a fishing tournament while out on full-pay disability collected about $65,000 while off and then $48,000 in permanency or PPD on a tax-free basis for his injury. Former IDOC Director Salvador Godinez launched the investigation after pictures surfaced last year of Claimant Fancher out on a boat in a fishing contest while he was being paid full pay. It appears Fancher is now back to work, earning $66,000 per year as a guard at the Vienna, IL Correctional Center.
At the time, Godinez was quoted as saying his administration had "absolutely zero tolerance for employee misconduct of any type." The Corrections Department won't say anything about the investigation, even whether it is ongoing—we vote not to hold your breath for the final report. The investigation was ordered because at the time of the fishing contest, Fancher was collecting his full salary under a regulation called "extended benefits," which allows a corrections officer who has been injured by an inmate to recuperate without losing pay. Claimant Fancher spent 352 days off work, but on full pay, after asserting he was incapable of full duty work following intervention to stop a fight between inmates in October 2013. An emergency room exam of Fancher showed no injuries at the time, according to a physician's report and other medical records.
The Belleville News-Democrat just reported, last month, Fancher’s work comp claim was settled for $48,000 tax-free, minus 15 percent to his lawyer. We have no idea why Tri-Star, the TPA for the State of Illinois or the Attorney General’s office would pay that much money in permanency based on the information reported. It appears the defense side of this claim found an IME physician who felt the “non-injury” claim still required shoulder surgery. There was no dispute this Claimant continues to fish but he now claims he has to change hands a lot. There was photographic evidence of Claimant both fishing and bow hunting. Due to asserted loss of strength, Claimant now says he has to change the type of hunting bow he uses.
IWCC records confirm Fancher lost two earlier IL WC claims, both for alleged repetitive trauma to his hands and elbows after hearings where, despite the testimony of physicians, the hearing officer denied any benefits, stating job information provided to the medical experts by Fancher and a witness was not accurate. According to the Arbitrator’s decision Fancher claimed the “repetitive trauma” to his wrist and elbow based on duties such as "turning keys, writing reports and driving." We consider that a classic “repetitive working” claim that should usually be fought. We salute the Arbitrator for her ruling denying such claims. The denial of these claims has been appealed to the Workers Compensation Commission and is pending oral argument. This article isn’t intended to affect the outcome of that litigation, it is simply our opinion.
There Oughta Be a Law
Our problem with this pending claim isn’t just “employee misconduct.” The defense team at KCB&A remains livid about government “employer misconduct”—shame on everyone who allowed this man and others to be off all work without putting them back to available light work. All of it gives the sense IL taxpayers are being totally ripped off by this system. How many other correctional workers are out there fishing, hunting, running taverns, going to car shows and living off our tax dollars when they could be employed at light work?
We ask the rhetorical question, why wasn’t this worker given light work by the Corrections Department? Why was he allowed to fish and hunt and enter contests on our taxpayer-dollars? Here are open and well-paid jobs available right now for any corrections officer who needs a light duty assignment to allow them to continue working. Yes, Officer Fancher might have needed a month or three of training but remember he was off fishing and hunting and doing whatever fun stuff he wanted for almost an entire year—couldn’t they have put him into a couple of months of training to get him back to work and off your dime? Doesn’t the Americans With Disabilities Act or ADA require our State to do so and accommodate restrictions? Can other Illinois Corrections Officers who are off work right now on full pay be put into jobs at available and empty desks?
· Account Technician I Full-Time $3,250.00 - $4,594.00 Monthly 10/28/15
· Accountant Supervisor Full-Time $4,377.00 - $6,878.00 Monthly 10/28/15
· Administrative Assistant I Full-Time $4,159.00 - $6,500.00 Monthly 11/03/15
· Clinical Services Supervisor Full-Time $6,698.00 - $9,894.00 Monthly 11/03/15
· Correctional Counselor I Full-Time $3,957.00 - $5,854.00 Monthly 10/26/15
· Correctional Counselor II Full-Time $4,338.00 - $6,500.00 Monthly 10/26/15
· Corrections Food Service Supervisor Full-Time $3,994.00 - $5,867.00 Monthly 10/26/15
· Corrections Supply Supervisor I Full-Time $3,994.00 - $5,867.00 Monthly 11/03/15
· Corrections Vocational Instructor Full-Time $4,161.00 - $6,228.00 Monthly 10/28/15
· Executive I - Opt M1 Full-Time $4,377.00 - $6,967.00 Monthly 10/29/15
· Executive II - Opt M1 Full-Time $4,873.00 - $7,729.00 Monthly 10/29/15
· Executive II - Record Office Supervisor Full-Time $5,092.00 - $7,729.00 Monthly 10/26/15
· Executive Secretary I Full-Time $3,371.00 - $4,793.00 Monthly 10/27/15
· Health Information Associate Full-Time $3,250.00 - $4,594.00 Monthly 11/04/15
· Internal Auditor Trainee Full-Time $2,464.00 - $4,731.00 Monthly 10/29/15
· Office Assistant - Opt 2 Full-Time $2,889.00 - $3,933.00 Monthly 11/03/15
· Public Service Administrator - Opt 7 Full-Time $7,135.00 - $10,617.00 Monthly 10/28/15
· Senior Public Service Administrator Opt Full-Time $4,295.00 - $12,128.00 Monthly 11/02/15
We are not making this up, folks. These jobs are a small part of a total of 77 such light duty corrections jobs are currently posted on the CMS website at
As we have said before and will say again until Governor Rauner, Speaker Madigan or Senate President Cullerton or their successors will hear and act on it, we need a state law mandating light duty be implemented for Illinois state workers, universities, local governments and taxing districts. Taxpayer dollars are going to continue to be thrown away under questionable circumstance until this is enacted. The goal of such a law mirrors ADA and protects taxpayers by insuring their hard-earned tax dollars are used wisely—get injured government workers back to full work or light work or some work as soon as they can.
We salute The Belleville News-Democrat and reporter George Pawlaczyk for reporting this important development. We appreciate your thoughts and comments. Please post them on our award-winning blog.
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Synopsis: General Contractor Skirts Liability By Avoiding Control! U.S. District Court finds construction manager not responsible for the alleged negligence of a supplier and installer in the building of a sports venue owned by the City of Bloomington.
Editor’s Comment: On September 14, 2015 the United States District Court for the Central District of Illinois in Rivers v. Central Illinois Arena Mgmt, Inc. et al, issued a decision granting Defendant’s motion for summary judgment. The Federal Court held the construction manager under contract with a city to build a sports venue was not liable, either on a theory of vicarious or direct liability, for the alleged negligence of a supplier and installer of a dasher board system.
Facts of the Case: On May 17, 2013, Plaintiff was playing professional football in U.S. Cellular Coliseum (“the Coliseum”), a sports venue owned by the City of Bloomington, Illinois (“the City”). At some point during the game, Plaintiff collided with and fell through a gate built into dasher boards surrounding the football field. According to Plaintiff, the latch mechanism on the gate failed to keep the gate secure. Plaintiff suffered injuries from the collision and subsequent fall.
Plaintiff filed a four count complaint against four separate Defendants, one of them being Johnston Contractors, Inc. (“Johnston”). Johnston was engaged by the City to serve as the construction manager for the construction of the Coliseum. Plaintiff charged Johnston with general negligence in constructing the Coliseum and installing the dasher boards which allegedly caused Plaintiff’s injuries.
Johnston contended since its contract with the City limited their duties to a construction manager to only ensuring a safe work place for other employees engaged in building the Coliseum, to provide general administrative oversight to the construction site during the construction of the Coliseum and to assist in obtaining bids from sub-contractors and advise the owner as to the appropriateness of the bids, there was no duty upon them to ensure the dasher board system was properly designed or installed. Johnston filed a motion for summary judgment asserting Plaintiff had not produced evidence demonstrating Johnston exercised the type of control necessary to make a general contractor liable for an independent subcontractor’s negligence.
The Federal Court noted in Illinois, the general rule is a party that entrusts work to an independent contractor is not liable for that independent contractor’s acts of negligence. However, there is an exception to this rule known as the “retained control exception” and it allows a general contractor or construction manager who has entrusted work to an independent contractor to be liable for acts of negligence when such a contractor retains sufficient control over any part of the work which causes an injury. The “retained control exception” allows for both vicarious and direct liability depending on the degree of control the allegedly negligent defendant retained over the subcontractors.
U.S. District Court Decision: The Court found Plaintiff had not presented enough evidence on the issue of retained control to survive summary judgment. In their ruling they noted the construction manager did not exercise the type of control over the work of the supplier and the installer of the dasher board system, as required to be subject to liability for the supplier's and installer's alleged negligence. Although Johnston received the drawings of the dasher boards and requested the fabrication of the dasher boards be delayed, the Court still found this did not establish Johnston was the decision maker over how the subcontractors performed their work. The court reasoned in order for the “retained control” exception to apply, it is not enough that the party against whom liability is sought merely to have retained a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations.
Furthermore, the Court noted control is not the only requirement, there must be evidence the principal entrusted the subcontractor with its work. The Court found neither party had produced such evidence. The Court pointed to Johnston’s contract with the City, which provided the construction manager was the City's representative on all subcontracts for construction work to be performed by subcontractors. This did not demonstrate the construction manager entrusted the supply, delivery, and installation of the dasher board system to supplier and installer. This provision did not convey it was the construction manager's duty to actually select or retain the subcontractors. The contract also specifically provided the City "shall determine, with the advice of construction manager, and subject to the reasonable objection of the Architect, which bids will be accepted," and the city, and not the construction manager, would enter into contracts with subcontractors.
Where Illinois state court decisions appear to always be expanding general contractor’s liability, this case finally seems to limit the liability to the amount of control a general contractor has over a construction project. In this case, the construction manager was supervising the project but never really had control over the installation or fabrication of the dasher boards. Therefore, we agree with the Court’s decision to deny Johnston’s liability for the alleged negligence of others.
This article was researched and written by John Karis, JD. You can reach John 24/7/365 for questions about general liability and workers’ compensation at jkaris@keefe-law.com
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Synopsis: Important News on Ever-Changing IL Arbitration Dockets—Who is Actually on First?
Editor’s comment: The IL WC Commission announced in order to comply with Section 14 of the Illinois Workers Compensation Act, the dockets of all existing downstate arbitrators will be reassigned to another arbitrator effective January 1, 2016. Due to the necessity of sending out notices, the IWCC website will begin to list the name of the new arbitrator well in advance of the January 1, 2016 docket transfer. Please be aware that these cases are still assigned to the original arbitrator. If you have settlement contracts or motions, including 19(b)s, they should be directed to the arbitrator whose docket the case has been on and not the new arbitrator taking over in 2016. All cases will be transferred on January 1st, including those cases where a decision has been reached on a 19(b). The 19(b) cases will not follow the current arbitrator to their new assignment but will stay in the docket where it was originally assigned.
We looked and note Section 14 says this:
The Commission shall assign no fewer than 3 arbitrators to each hearing site. The Commission shall establish a procedure to ensure that the arbitrators assigned to each hearing site are assigned cases on a random basis. No arbitrator shall hear cases in any county, other than Cook County, for more than 2 years in each 3-year term.
We assume the confusion and hilarity that are sure to follow on January 1, 2016 is due to the last sentence. Let’s hope someone with a brain considers changing that law to avoid this craziness moving forward.