11-3-2014; Please Don't Vote Based Upon Propaganda, Illinoisans!; Important Federal Fall-Down Ruling, analysis by Dan Boddicker JD; Important Construction Ruling, analysis by Brad Smith JD and much...

Synopsis: Can Illinoisans Be the Most Gullible of All Electorates? Please Don’t Make Decisions Based Upon Propaganda, Illinois!


Editor’s comment: Thankfully, this is our last KCB&A Update on the topic of the current 2014 gubernatorial election. As we advised, we strongly endorse Bruce Rauner for Illinois Governor and hope our readers vote accordingly before the election ends tomorrow night. Here are some reasons.


Last week, we pointed out the only folks we can figure who might vote for Gov. Quinn are current government workers concerned about future changes to their pensions. We have not heard a single objective reason from any other reader why one might vote for Gov. Quinn. Every reasonable metric indicates Governor Quinn and our state are doing miserably. He has no plan to change anything for the better, that we have heard. As we advised last week, Illinois has


·         Soaring unemployment;

·         A miserable jobs outlook;

·         The worst credit rating of all the United States;

·         $6B+ in unpaid state government bills at any given time;

·         We are 48th in economic status in a recent national study;

·         We have gone from $54 billion in debt to $105 billion in debt in the last five years under Gov. Quinn;

·         We have the second highest real estate taxes of all the United States;

·         Illinois is one of only 12 states with an estate tax which means you, your parents and grandparents may want to move out of Illinois as we get older.


Illinois Income Taxes May Soon Almost Triple Under Gov. Quinn If You Listen to Senate President Cullerton


On top of all that, last week, IL Senate President Cullerton wrote an article for the Chicago Tribune. In short, he bluntly confirmed he wants to bring Illinois income taxes up as high as New Jersey—please note this would effectively triple Illinois income taxes from the value they are supposed to drop to on January 1, 2015. Trust us, if you vote for Quinn, this may happen in about two weeks at the fall legislative veto session in Springfield. The legislation may already be drafted. Senate President Cullerton quoted his own floor speech:


“The fact is that we have been falling behind, in my opinion because of a structural deficit because our income tax rates are so much lower than (those of) other states. We've looked at states like New Jersey…”


Please note New Jersey’s income tax rates are currently at a shocking 8.97%. Senate President Cullerton blithely indicates we need to keep raising income taxes to record levels to “pay our bills.” Well, we hope someone can get into government and start to lower “our bills.” As we have repeatedly advised, we hope Bruce Rauner can come into Illinois government and start to push for and/or make appropriate/reasonable budget cuts and counter the need and drive of Illinois Democrats to continually raise taxes/tolls and fees. In our view, State Democrats keep raising taxes and creating new taxes to pay billions for fake pensions for folks that don’t work for us any more—that isn’t supposed to be “our bills.”


What Might Bruce Rauner Do to Cut Gov’t Costs and Save Taxpayers Millions?


From the perspective of the one state agency we are intimately familiar with, the Illinois Workers’ Compensation Commission, we ask these obvious questions:


      Could we get along with six and not the current nine IWCC Commissioners and their support staff?

      Could we get along with twenty-five or even twenty Arbitrators and their support staff—no matter how good they are, do we need 30 IL WC Arbitrators?

      Could we end the silly “Second Injury Fund” that was effectively replaced by ADA and that has no true value at all?


We don’t want the IWCC to disappear or dramatically change, we just feel it could be more efficient and effective. Would IL WC claims still get resolved in a timely, professional and fair fashion? We don’t know the answer but, as our state has about $6B in unpaid bills, we hope such concepts are explored. Some reasonable cost-cutting would save Illinois business/taxpayers millions off the cost of running this single state agency. When you look at IL government’s 87 other state agencies, we assure our readers a solid administrator could make reasonable cuts with amazing gains for taxpayers, if we vote for Bruce Rauner.


What about Quinn’s Poison/Attack Ads? Can Anyone Really Care About Ketchup on a Hot Dog?


We hate propaganda and feel it is intellectually insulting to the taxpayers and voters of this great state. We hope you are NOT gullible and will reject such offerings. Propaganda is the presentation of facts selectively and sometimes lying by omission to produce an emotional rather than rational response to the information presented. Please note Gov. Quinn’s various Poison/Attack Ads are almost all baloney, balderdash and blarney. If you aren’t aware, there have been complaints and tweets and instagrams all over the web about Candidate Rauner ordering a hot dog with mustard and ketchup for a staffer! Eeek! That issue indicates the level of silliness that has stained this election. Here are thoughts on other senseless and misleading attack ads:


1.    The tiny baby you see on TV wasn’t around for the more-than-a-decade-old drug price debate you hear in the attack ads. Issues were raised by the FTC about drug pricing and competition among drug companies from 2002 to the sale of the company in 2009. The FTC lost their lawsuit and a class action suit was later settled, terms not disclosed. Nothing illegal occurred, no laws were broken and no one went to jail. We agree the wildly varying price of the same medicine across the globe should be something the Feds should analyze—that said, it has nothing to do with Illinois government or this election. Pat Quinn had no role of any kind in dealing with or regulating drug prices or competition. In our view, the drug price and competition debate from more than a decade ago doesn’t say anything about someone’s fitness to be Governor, in any way.

2.    The lady you hear about that Bruce Rauner was going to “bury” wasn’t buried and is doing well, thank you. Her name is Christine Kirk. Ms. Kirk was fired in 2001, the start-up company quickly failed and lawsuits were dismissed and/or settled. Ms. Kirk didn’t testify about the hearsay statements used in the ads and she refused interviews. FYI, Gov. Quinn has rapidly and rudely fired lots and lots of folks including former IL WC Arbitrators and the poor lady who was running the IL Dep’t of Transportation when his hiring scandals were recently discovered.

3.    The poor treatment of residents in a Florida nursing home from 2002 attributed to Bruce Rauner is a complete joke. Please note Governor Quinn also is arguably on the “board” of all state-run Illinois nursing homes, as our Governor. Across our state, there are about 6,000 formal nursing home complaints lodged annually against IL gov’t-run nursing homes. In the six years Pat Quinn has been our governor, simple math indicates there would have been 36,000 nursing home complaints lodged against his government. We don’t feel either Gov. Quinn or Bruce Rauner are directly or even minimally responsible for the day-to-day operation of any of these nursing homes complained about.


Our problem with listening to or voting based on propaganda is you are certain to encourage more propaganda. We hate to see poorly constructed and misleading propaganda being broadcast over and over, as if we were all stupid. We consider these misguided attacks a reason to vote against the propagandist and not the opposite.


But Can’t Bruce Rauner, as Governor, Completely Change our Lives?


Actually, no. Please calm down and understand he is a trend-maker but won’t have complete power. There is no question Bruce Rauner will be a governor without voting control of the IL State House or Senate. He can have an impact but he will have to work in a bipartisan fashion to make progress. He can let us know a solid path to follow. He can slow or stop silliness from State Democrats who would have to override his veto to pass laws. We think that is a very good idea for our state.


We join with every major news source in and outside Illinois to endorse Bruce Rauner for Illinois Governor. We appreciate your thoughts and comments. Please post them on our award-winning blog.




Synopsis: Don’t slip up! Don’t miss this business friendly ruling presenting a road map to help you protect your business from an invitee’s slip and fall. Analysis by Daniel J. Boddicker, JD.


Editor’s Comment: In a decision directly affecting Illinois businesses, the United States Court of Appeals for the Seventh Circuit, affirmed the Federal District Court’s granting of summary judgment and held a business invitee who slipped on water on defendant’s floor failed to show a breach of duty.


In Zuppardi v Wal-Mart Stores, Inc., Plaintiff Zuppardi walked down an action alley, which is a highly trafficked main aisle of the store. She did not see any other customers or store employees. Ms. Zuppardi slipped and fell in a puddle of water, without knowledge of how and when the water accumulated. She further claimed there were no warning signs or caution cones around the puddle. Zuppardi further alleged there were no track marks, footprints, or trails leading to or from the puddle.


Wal-Mart employees were required to follow policies and procedures, including the conducting of regular safety sweeps of the store with a focus on high traffic areas. The employees were tasked with monitoring the action alleys and scanning for unsafe conditions while performing their other job duties. Upon encountering a spill, employees were required to stay with it until removed. All employees carried a “towel in pocket” to clean up any discovered spill.


The Court noted in Illinois, businesses owe their invitees a duty to maintain the premises in a reasonably safe condition to avoid injuring them. For a breach of that duty, the court noted liability can be imposed when a business’s invitee is injured by slipping on a foreign substance on its premises if the invitee establishes


(1)  the substance was placed there by the negligence of the business;

(2)  the business had actual notice of the substance; or

(3)   the substance was there a sufficient length of time so that, in the exercise of ordinary care, its presence should have been discovered, i.e., the business had constructive notice of the substance.


The Court reasoned to create a triable issue of fact with respect to placement of the substance by Wal–Mart, Zuppardi needed to present some evidence showing the substance was more likely placed on the premises through Wal–Mart’s negligence rather than a customer’s potential negligence. To prove the defendant business, as opposed to a third person, created the dangerous condition, Illinois courts have required the plaintiff to (1) show that the foreign substance was related to the defendant’s business and (2) “offer some further evidence, direct or circumstantial, however slight, from which it could be inferred that it was more likely that defendant or his servants, rather than a customer, dropped the substance on the premises ...”


The Court found Zuppardi simply offered evidence she slipped on something that happens to be sold by Wal–Mart. Consequently, the Court reasoned such evidence fails to support an inference that Wal–Mart caused the spill. The Court stated constructive notice can be established under Illinois law by either presenting evidence that (1) the dangerous condition existed for a sufficient amount of time so that it would have been discovered by the exercise of ordinary care, or (2) the dangerous condition was part of a pattern of conduct or a recurring incident.


The Court confirmed where constructive knowledge is claimed, of critical importance is whether the substance that caused the accident was there a length of time so that in the exercise of ordinary care its presence should have been discovered. Absent any evidence demonstrating the length of time the substance was on the floor, a plaintiff cannot establish constructive notice.


The Court noted Wal–Mart’s internal policies and procedures for monitoring for spills and other hazardous conditions appropriately addressed the threat of these issues by requiring Wal–Mart employees to monitor the “action alleys,” to be on the lookout for unsafe conditions, and to stay with any found spill until removed. The court confirmed there is no bright-line rule designating the requisite time to establish constructive notice, and noted periods in excess of ten minutes had failed the test. The Court held a few minutes was not enough time to give Wal–Mart constructive notice of the puddle.


The Court discussed Zuppardi’s argument that pursuant to Wal–Mart internal policies and procedures, employees need to monitor the “action alleys” of the store continuously during times of increased customer traffic, and Zuppardi’s interpretation this store-specific policy creates a legal standard of ordinary care requiring such continuous monitoring. However, the court rejected said argument as it would require the continuous monitoring and patrolling of a store’s safety conditions that Illinois courts have summarily rejected. The Court held although Wal–Mart’s internal policy requires employees to continuously monitor the “action alleys,” this goes above and beyond the duties required of businesses by Illinois courts and does not create a new legal standard of ordinary care requiring the same.


This article was researched and written by GL defense team member Daniel J. Boddicker, JD.  Dan can be reached with any of your questions or concerns regarding premises liability defense and/or general liability defense at dboddicker@keefe-law.com




Synopsis: How Much Control is Too Much? In a recent important opinion for the IL construction industry as it relates to general contractor liability, the IL 1st Dist. Appellate Court reversed summary judgment holding the general contractor exercised sufficient control to create a genuine issue of a material fact to be resolved by the trier of fact. Analysis by Bradley J. Smith, J.D.


Editor's Comment: In a ruling we believe is significant as it relates to defense of a general contractor in a negligence action, the First District Appellate Court determined since there was sufficient evidence to show defendant had more than a general right of supervision and was potentially subject to liability under section 414 of the Restatement (Second) of Torts, the trial court’s entry of summary judgment was in error. Specifically, the Court found that Defendant’s safety manual explicitly prohibited the use of stilts by a subcontractor’s employees, and further Defendant had the authority to stop unsafe work and order it remedied. In Lederer v. Executive Construction, Inc., Plaintiff was walking on stilts and tripped and fell over some exposed and unprotected conduit protruding from the floor in the room where he was using the stilts to work on the ceiling.


The trial court entered summary judgment for Defendant on the basis that it did not owe a duty of care to Plaintiff and was not vicariously or directly liable under section 414 of the Restatement (Second) of Torts. Additionally, the trial court found that Plaintiff failed to procure evidence that Defendant had notice of the alleged dangerous condition. On appeal, the First District analyzed the general contractor Defendant’s control. Particularly, the Court reasoned that Section 414 of the Restatement (Second) has carved out a “retained control” exception that “provides for both vicarious and direct liability, depending on the degree of control that the Defendant retains over its independent contractor.


Thus, a general contractor may be held vicariously liable for the subcontractor’s negligence “under the principles of agency where the employer retains control over the operative detail of any part of the contractor’s work.”  Alternatively, the Court reasoned Defendant might be found directly liable “if the employer retains only supervisory control, i.e., power to direct the order in which the work is done, or to forbid its being done in a dangerous manner, unless he exercised supervisory control with reasonable care.”  In applying the aforementioned reasoning to Defendant’s alleged control, the Court reversed the trial court’s ruling. Specifically, the Court held there was sufficient evidence based on the undisputed facts for the trial court to find as a matter of law Defendant has more than general rights of supervision, and was therefore potentially subject to liability for Section 414. 


This decision furthers the “in charge of work” factors from the repealed IL Structural Work Act. As the Plaintiff’s bar has used the “control” of work pursuant to Section 414 of the Restatement (Second) of Torts to “resurrect” the Structural Work Act in a modified format, this decision appears to further that goal. Essentially, the Court applied nearly identical factors to determine Defendant exercised sufficient control pursuant to section 414 of the Restatement (Second) to create an issue of fact, forcing Defendant to defend itself before a jury of its peers. 


If you are in need of counsel for your general contractor construction work, then consider the zealous defense attorneys at Keefe, Campbell, Biery & Associates, LLC. We stay abreast of all current case law to keep you fully apprised of your likelihood of success or otherwise in the legal matters you face. We also provide our clients with detailed liability assessments at the onset and regularly throughout litigation. 


The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding construction accident defense and general liability defense at bsmith@keefe-law.com.