Pat Murphy
The Daily Record Newswire
What’s the deal with Illinois?
This summer, the state’s courts have dealt with personal injury cases involving people who have been bucked from Segways, bashed by periscopes, and bonked by baseballs.
Yet it looks as though none of those plaintiffs will recover a penny for their injuries.
C’mon ye members of the Illinois plaintiffs’ bar, let’s pick it up a notch!
Segway misadventure
Ah, Chicago, that toddlin’ town.
What a treat to tour one of the world’s great cities.
Me, I’m a big-time fan of the old-time gangsters, so I’m all for those cheesy bus tours that check out the haunts of Al Capone and deliver you to scene of the St. Valentine’s Day Massacre.
A bus tour may not be the way to experience “real” Chicago, but it sure beats seeing the city by Segway, at least I’m sure that’s what Shelle Hamer would say now.
The fateful day was March 30, 2007.
Hamer and her son signed up for a Segway tour of downtown Chicago with the inventively named City Segway Tours of Chicago (CST).
You know the Segway. It’s that dorky two-wheel “human transporter” that was supposed to replace the car. Unveiled in 2001, we were all supposed to have one by now and the planet would be saved. (Yea planet!)
Then we came to our senses.
At least most of us did. Hamer just had to try one out.
After receiving operating instructions from a CST tour guide, off Hamer went on a Segway to enjoy the sights of Chicago.
The tour was going great until Hamer attempted to ride her Segway up a small grassy hill. On her way up the hill, the Segway threw her off.
Her resulting injuries kept her from work for four months.
What else was there to do but sue CST for her injuries?
According to Hamer’s complaint, CST negligently permitted her to operate her Segway in a dangerous location, without properly instructing her about the danger.
Hamer had one big problem in holding CST liable, and that was the release she signed before going on the tour.
Last month, the Illinois Court of Appeals decided that CST’s standard release was airtight, sinking Hamer’s personal injury claim.
“In the release, Hamer accepted the risk that she could fall; in her complaint she alleged that she fell. In the release, she accepted the risks of riding on irregular roads and pavement surfaces;
in her deposition she admitted that she rode on an unpaved, irregular surface. ...
“In the release, she accepted the risk of personal injury caused by the actions of others, excepting only gross negligence by CST employees; in her complaint she alleged that the injury resulted from CST’s acts of ordinary negligence. ...
“We find that the release clearly applies to the occurrences complained about in Hamer’s complaint as well as those described in her deposition,” the court said. (Hamer v. City Segway Tours of Chicago)
Up periscope!
When you hear that an investigator for the state of Illinois was injured by a periscope, you might wonder whether the state has secretly launched a fleet of submarines to patrol Lake Michigan, torpedo drug runners and project its power against Chicago’s evil nemesis — New York City.
But the periscope that Charles Salerno injured himself on was installed in an IST-6000 surveillance van sold by Innovative Surveillance Technology (IST) to the Cook County State’s Attorney’s office.
The state used the van to conduct surveillance in conjunction with undercover drug investigations.
And that’s what Salerno was doing in October 2003 when he attempted to stand up inside the cargo area of the IST-6000.
Salerno struck his head on the unpadded metal portion of the periscope, which was suspended from the ceiling, and unfortunately suffered severe head injuries.
Salerno brought strict liability and negligence claims against IST, alleging that the periscope lacked adequate padding and that the company failed to provide adequate warnings of the danger.
But late last month the Illinois Court of Appeals affirmed a summary judgment for IST.
Tossing Salerno a bone, the court decided that the trial judge had wrongly dispensed with his lawsuit by applying the open and obvious doctrine. The court noted that, under state law, a product’s open and obvious risk of harm is not an absolute defense to a defective design theory of strict liability.
But Salerno’s defective design theory failed nonetheless, the court said, because IST’s periscope had been designed for extra padding. The padding for this particular periscope was unfortunately missing.
Forced to effectively concede his defective design claim, Salerno’s remaining claims fell like dominos.
“Plaintiff’s admission that there is ‘nothing to criticize’ in IST’s design constitutes a waiver of his negligence claim just as it did with respect to his strict liability claim. ...
“And again, because plaintiff conceded that he had no criticism of the van’s design, IST cannot be liable for a negligent failure to warn,” the court said. (Salerno v. Innovative Surveillance Technology)
Baseball beaning
Three strikes and you’re out!
The third strike for this collection of Illinois personal injury plaintiffs comes in the case of Debbie Vaughn.
The facts of Vaughn’s case are simple.
On May 20, 2005, Vaughn attended her son’s baseball game at West Frankfort Park. While watching her son’s game from the bleachers, Vaughn was hit in the eye by a baseball thrown by an 11-year-old player warming up for the next game.
So Vaughn sued the West Frankfort Recreation Association for negligence, claiming that the organization should have taken steps to prevent players from warming up in an unsafe area close to the bleachers.
You know how this ends.
Naturally, the West Frankfort Recreation Association was immune under the state’s recreational use statute, and the Illinois Court of Appeals last week confirmed a state trial judge’s directed verdict to that effect.
“Our reading of the Recreational Use Act leads us to believe that the legislature was not trying to throw a curve ball with regard to its intent, but rather we think its objective was thrown right down the pipe: ‘The purpose of this Act is to encourage owners of land to make land ... available to the public for recreational ... purposes by limiting their liability toward persons entering thereon for such purposes,’” the court said. (Vaughn v. Barton).
