April 2018

DRAMSHOP ACT: RESPONSIBILITY FROM BOTH SIDES OF THE BAR

Friday, April 27th, 2018

For all the sturm und drang ginned up at the federal Supreme Court this term regarding topics like immigration and freedom of religion, there is a another case, straight out of South Dakota, that may be the most broadly impactful of all: South Dakota v. Wayfair, Inc. This case challenges the decades-old (well, since the 1992 Supreme Court decision Quill Corp. v. North Dakota, anyway) precedent that a state could not collect sales tax from businesses without some sort of physical presence or legal nexus in the state. Attempting to do better than its more northerly cousin, South Dakota argues that the explosion of internet commerce has put local sales-taxed businesses at a competitive disadvantage compared to online retailers. On top of that, the Quill decision deprives the 10,000 municipal and state entities around the country the ability to efficiently tax their resident's purchases and enforce their tax laws.

There is an important distinction here between passing sales tax (and things that function similarly, like registrations and filing fees) and passing laws that force businesses to enforce them. In Illinois you are required to pay a sales tax on everything you buy online: if the business doesn't collect the tax, it is the responsibility of the purchaser to report the sale and pay the tax themselves as part of their income tax filing. The Illinois Department of Revenue even provides a helpful form specifically for this purpose: Form ST-44, Illinois Use Tax Return.

If all of this comes as news to you, don't feel too bad. The abysmal compliance rate on stuff like this is why states and local governments want to collect the taxes directly from the businesses in the first place. The internet businesses, on the other hand, sensibly feel that it isn't their fault that people don't pay their taxes, and more seriously that small businesses would suffer a crushing regulatory burden if they had to collect every sales tax from all those 10,000 separate government schemes. Complicating things somewhat, larger businesses like Amazon and have been collecting sales taxes in Illinois since 2015, when a law went into effect expanding the nexus requirement to include certain types of agreements with agents operating in Illinois (Amazon itself also built its first distribution center in Illinois that year, so they couldn't exactly argue that they had no "physical presence" in the state).

At the oral argument for South Dakota v. Wayfair, Inc. on April 17th, the Justices as usual didn't tip their hand too far in one direction or another. There was perhaps a surprising amount of musing over whether it would be better to have Congress weigh in on the whole thing rather than have the Supreme Court make a constitutional judgement. At any rate, there should be a decision out by the end of the term. Until then, hold on to your Form St-44s.

-Attorney Travis J. Dunn


PREMISES LIABILITY
Friday, April 13th, 2018

At first blush it would appear that liability of a property owner for injuries caused when someone trips or slips and fall on their property and sustains injuries as a result. However, in Illinois the case law recognizes a number of defenses that renders the law in this area more complicated than you might imagine.

There are rules that say even if there is a defect, if it is not large enough the property owner may not be responsible for the injuries she caused. This is known as the De minimis rule.

Strangely, there is another rule that states if the defect is large it is obvious and there is no liability for injuries causes by obvious defects as the law requires a person to take care to avoid such defects.

There is no bright line as to what is de minimis and what is obvious, as it all depends on the facts. There is no one size fits all rule in these cases.

What is clear is that it takes an experienced litigator to navigate the mine filled waters of premises liability law.

Your author recently prevailed when a property owner who had neglected to maintain its property and allowed its walkway to deteriorate thereby causing a tripping hazard.

The defendant sought to have the court throw out the case claiming the plaintiff should have avoided the defect that defendant created.

After presenting a lawyerly argument, plaintiff convinced the court that defendant should be held to account for its actions/inactions and the motion was denied.

If you have been injured as a result of a slip or trip or otherwise on someone else's property you may be entitled to compensation, and with the help of an experienced attorney, you can seek damages for your injuries. If your find yourself in such a situation, give us a call. We offer free initial consultations, and we would be happy to set up an appointment to discuss the matter with you. Appointments may be scheduled through our toll free number at 888-488-4LAW or via email at [email protected].

-Dennis E. Both, attorney