Synopsis: IL Supreme Court Follows ITLA Lead and Party Affiliation to Abolish the "Public Duty Rule" and Allow Unprecedented New Lawsuits Against Your Town and Mine—Higher Taxes Are Sure to Follow.

Editor’s comment: This isn’t truly a WC issue so if you aren’t concerned about higher local taxes in your town, skip this one. For insurance brokers among our readers, this is a new and unparalled risk your government clients will now have to deal with, for the first time—call your underwriters!

A divided Illinois Supreme Court recently abolished the common-law "public duty rule." This standard, widely known as the "public duty rule," was conceived by the U.S. Supreme Court more than 150 years ago and has been firmly in place in Illinois for at least 50 years. The rule had long provided local governments and their first-responder and other government employees owe no duty of care to rapidly provide emergency or other government services to individual members of the public—they owe a general duty to all. In short, this rule meant the many government workers couldn't be sued for negligence, like failing to arrive rapidly.

The split Supreme Court panel in Coleman v. East Joliet Fire Protection District, 2016 IL 117952, found the rule is somehow no longer viable based on "the interplay between the public duty rule and governmental tort immunity.” Justice Kilbride wrote the lead opinion, with Justice Burke concurring. Justice Freeman wrote a specially concurring opinion, which was joined by Justice Theis. Justice Thomas dissented, and was joined by Chief Justice Garman and Justice Karmeier. You may easily note the majority was entirely from the IL Democratic Party and the minority was from the Republican side.

In Coleman, Plaintiff filed claims for wrongful death and survival against Defendant East Joliet Fire Department on behalf of the estate of Decedent Coleman, who died of cardiac arrest in the process of seeking EMS or emergency medical service. After extensive pretrial motion practice, the only remaining counts in the complaint were ones alleging willful and wanton conduct on behalf of Defendants. Those counts were disposed of by the trial judge on summary judgment under the “public duty rule.” The Appellate Court affirmed the trial court's ruling.

From the view of IL Business and Government, this is where this case should have ended. We note the “public duty rule” has been affirmed by Illinois courts, including prior panels of our Illinois Supreme Court, for well over 50 years. In short, no one has ever successfully claimed the “public duty rule” was discordant with local government tort immunity.

Surprisingly, the Coleman majority took a radical and different view. After analyzing the history of state governmental immunity in Illinois, our highest court turned to the history of the “public duty rule,” which has existed in some form across the United States since 1855. The majority found it was time to abandon it for three reasons:

· Jurisprudence was muddled and inconsistent in the recognition of the public duty rule and its special duty exception;

· Application of the public duty rule was incompatible with the legislature's grant of limited immunity in cases of willful and wanton conduct; and

· Determination of public policy is primarily a legislative function and the legislature's enactment of statutory immunities rendered the public duty rule obsolete.

Wow, most business and government leaders would strongly disagree with each and every thought above. Previously, a plaintiff's only means of demonstrating liability in the face of Illinois’ statutory governmental immunity was to show the government entity engaged in willful and wanton conduct. This is considered a challenge and also a protection to your town and mine. ITLA and the Plaintiff bar complained the public duty rule eliminated even that path for Plaintiffs, with very rare exceptions. Basically, the now-defunct rule exempted local governmental entities from any liability in connection with providing emergent services even if they were found to have committed willful and wanton conduct.

The Coleman majority also found our legislature carved out liability for cases of willful and wanton misconduct and the common law public duty rule was incompatible with the legislature's decision. Ultimately, the lead opinion left it to the legislature to determine whether it was necessary to retain the public duty rule, noting that it could always codify the existing rule or create a new rule.

Supreme Court Justice Thomas's scathing dissent took both the lead and specially concurring opinions to task for abandoning stare decisis with regard to the public duty rule. His opinion discounts the majority argument the application of the law was muddled. Justice Thomas also notes statutory tort immunity existed for decades prior to the Coleman ruling.

We feel this ruling ending the public duty rule will open up lots of new litigation for plaintiffs' attorneys to sue local governmental entities for good, middle and poor outcomes that might have been arguably prevented by better law enforcement or faster ambulances and fire trucks. The Coleman decision likely will increase the number and duration of lawsuits filed against public employees, despite the immunity provisions of the Illinois Local Governmental Tort Immunity Act. In addition, public employees now are at risk of liability for willful and wanton conduct, unless the Illinois Legislature acts to counter this ruling. To summarize, your town’s insurance costs are going up and your taxes are certain to follow.

We appreciate your thoughts and comments. Please feel free to post them on our award-winning blog.

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Synopsis: Huge Award Against General Contractor for Workplace Injury Following OSHA Investigative Actions and Citations. Analysis by John Karis, J.D.

Editor’s Comment: Be Forewarned--earlier this month, a jury in Harris County, Texas, awarded $54 million to the family of an employee killed while building Kyle Field stadium. Despite having no OHSA violations and not managing the employee, the general contractor was found the most responsible party for the worker’s death.

The facts of the case involve the employee using a loader's bucket to catch concrete debris being removed from the stadium. His work was part of the $450-million renovation. The loader had a 2,700-pound carrying capacity but was bearing a 3,340-pound concrete section as another worker was using a circular saw to cut the piece from a support column. The weight caused the overloaded equipment to topple forward over the side of the stadium. Tragically, the worker was thrown from the loader—falling about four stories to the ground.

OSHA issued two willful citations and placed the employer into their Severe Violator’s Program (SVEP). Being placed into OSHA’s SVEP has immediate and damaging national consequences, but this placement also created potentially unfavorable public evidence against an employer.

The lawsuit involved several site employers, including the Joint Venture/General Contractor, the deceased employee’s employer and another company working on site. Generally, workers’ compensation is the exclusive remedy against an employee’s employer or an injured employee, unless the employer engaged in near-intentional bad conduct resulting in the injury or fatality. This is a tough standard to prove. In Texas, an employer can also chose not to subscribe to workers’ compensation and consequently, be subject to a civil suit.

An OSHA area director, Casey Perkins openly claimed "these experienced contractors failed to provide employees with safe demolition procedures despite concerns from workers." He also said "employees had to work under the load and directly beside the skid-steer where they could be struck by the equipment or heavy, concrete debris. This disregard for worker safety is unacceptable and will not be tolerated." We are sure he has a right to his opinions, as a government worker.

OSHA then rendered a willful citation with a hefty penalty of $56,000 to one of the companies on the site for exceeding the operating capacity of the skid-steer loader where the equipment was loaded with concrete until what OSHA felt were obvious signs of tipping were seen. Another site subcontractor was also cited for a willful violation with a penalty of $63,000 for exposing workers to the hazard of being struck-by the skid-steer loader and concrete.

Due to evidentiary issues, Plaintiff did not get the OSHA citations before the jury but their underlying theories were present. Shockingly, the jury awarded $54 million dollars and their award did not include punitive damages. Plaintiff’s counsel claimed even without the OSHA citations, “Defendants were felt to be callous—refusing to accept any responsibility” which he claimed made the jury mad.

Notably, the general contractor was found 75% responsible despite no OSHA citations. The GC understandably argued a lack of responsibility under the usual multiemployer theory. They did not directly manage the employee and asserted his employer should have been responsible for his safety.

The obvious lesson is general contractors on a site take an enormous risk to leave safety concerns and management to the other contractors on site. The suit involved a construction site but there are lessons for any U.S. employer. An errant supervisor or an unusual/dangerous work situation can lead to bad events at any site.

If you’re a General Contractor, you need to:

· Effectively prequalify your subcontractors and ensure they provide site-specific training and a safety plan;

· Conduct a daily documented walk around and take documented corrective actions;

· Bid the job with provisions for adequate safety professionals;

· Owners need to insure general contractors adequately staff their jobs with safety support;

· Train your site superintendents, project managers and engineers and foreman to recognize and respond to observed hazards; and

· Regardless of who makes the error, all employers on site can pay whether by attorney’s fees and costs of defending a legal action and/or any judgments.

This article was researched and written by John Karis, J.D. You can reach John 24/7/365 for questions about OSHA, general liability defense and workers’ compensation defense at jkaris@keefe-law.com

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Synopsis: Athletico Announces Their New Workers’ Compensation Customer Service Department.

Editor’s comment: Athletico is one of the top physical therapy providers in the U.S. They just announced the formation of a new WC Customer Service Dep’t to optimize services to their patients, doctors, claims handlers, risk managers and attorneys on both sides. We want our readers to know of this new transition to insure when your claimants need physical therapy after a work accident, your needs are fully served.

By providing Work Comp services, educating employees on safe work habits, and creating environments where injuries are preventable, Athletico Physical Therapy really does go to work for their component participants. From the time of injury through claim closure, their Work Comp services make the entire PT process a cost-effective and timely manner for everyone involved.

Athletico's Work Comp Services:

Work Conditioning
Physical Therapy
Occupational/Hand Therapy
Functional Capacity Evaluations
Ergonomics
Job Analysis
Post-Offer Testing

About Their Services:

Athletico works to develop a training protocol for the long-term success of occupational and Work Comp and safety programs by training, equipping, and supporting allied health and safety professionals.

Athletico also offers a number of preventative and educational services. Work Comp specialists are trained to assess the work environment and worker behaviors in order to customize intervention techniques and programs. Programs include the following:

Job-Site Evaluations
Job Analysis
Workplace/Ergonomic Assessment
Post-offer/Pre-employment Testing
Injury Prevention Strategies
Spine Control Classes

Benefits of Athletico’s Work Comp Services

Comprehensive: Athletico Physical Therapy offers timely, cost-effective Work Comp services designed to not only treat on-the-job injuries, but also return injured workers to the job with minimal risk of re-injury.

Convenient: Patients are guaranteed easy access to any of their convenient locations within 24-48 hours of their initial call. This allows them to minimize down time by quickly assessing injures and setting return-to-work goals.

Customized: Based on a valid job description and comprehensive interview of the injured worker, their rehabilitation specialist will develop return-to-work goals specific to each patient’s injury and on-the-job activities.

Coordinated Communication: Their comprehensive, convenient, and customized approach to Work Comp extends beyond the injured worker. Athletico staff provides timely communication to all involved parties, including employers, primary physicians, case managers, and legal representatives. In addition to the rehabilitation progress, we will provide 24-hour notice of patient cancellations or no-shows for scheduled appointments.

If you are a work comp professional and interested in learning more about Athletico’s WC Customer Service Dep’t, contact Michael Trombetta at michael.trombetta@athletico.com

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Synopsis: Need WC Training? Learn from the KCB&A Experts about New WC Rules and Decisions from 2015 and Beyond .

Editor’s comment: In our view, training and expertise in new work comp developments is critically important for you to keep ahead of your competition in claims and risk management. We have culled out the important decisions and changes to law for the last year to add to our 2016-17 IL WC Law Textbook. We can present the most important of them for you and your adjusting/risk management staff in a complimentary onsite lunch and learn at your office. We can also “webinar” your remote workers who want to keep pace with the office staff. Let us know if you are interested in a lunch hour presentation that we assure you will be informative and entertaining.

Here is the outline created by John P. Campbell, J.D. and Nathan Bernard, J.D. for your consideration:

When is a Physical Problem Repetitive Trauma versus Repetitive Working?

Question: How Exactly Do You Tackle an IL WC Fraud Claim? IL Courts Play the Laurel and Hardy Game of “Who’s on First?”

IL WC Wage Differential Exposure Expanding based on Recent Appellate Court Ruling.

Defense/Respondent Contact with Treating Doctors Met with Shocking Penalty and Sanction from Circuit Court Judge.

Traveling Employee Expansion When Handling Work Equipment While at Home.

Medicare Set-Aside Process as SMART Act is Implemented.

Comparing How Impairment Ratings are Considered at the IWCC.

We can also do a half-day or whole day seminar to teach all the nuances of IL WC. Let us know is you have interest—all you have to do is send a reply.

KCBA Blog

2-29-16; IL Supreme Ct Abandons "Public Duty Rule" to Allow New Suits Against Local Gov'ts; John Karis on Shocking Workplace Ruling Against a GC and Others; Athletico Starts New WC Customer Service...