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February 2019

Are you liable for injuries caused by snow and ice on your property?

Saturday, February 9th, 2019

The Midwest winter has really stepped it up a notch this January and now going in to February. We have had all types of weather this past month– ice, snow, -52 degrees, 50-degree days and now rain. It is hard to keep up with what kind of weather we will have next, but it is important to keep up with shoveling and salting your sidewalk to make sure you don’t fall into a lawsuit. Depending on the circumstances, you could be held liable if someone slips and falls on snow or ice in front of your home or business.

You could be held liable is if ice developed as a result of the diversion of water (e.g., a downspout that sends water onto the sidewalk), then you could be held liable because you created a hazard. However, natural accumulations of snow and ice generally do not create a liability for a home or business owner. Local ordinances may create duties on property owners to shovel and treat icy conditions. These local ordinances, if not followed, can result in liability for injuries from slip and falls.

After a storm, home and business owners are allowed a reasonable time to remove ice. Therefore, if someone falls on ice during the storm or in the hours immediately following the storm (especially if the hours were overnight or when you would not normally maintain the property), it is less likely that the property owner (or tenant) will be held liable. However, if sidewalks and parking lots are left untouched for an unreasonable period of time after the storm, the likelihood of liability increases, even if the ice and snow occurred naturally.

Since ice is very transient, if someone has fallen on your property, it is a good idea to photograph or video the condition of the property – especially if there was no ice or if the ice was open and obvious. This includes both the area of the fall and the overall condition of the property. If the sidewalk is clearly covered in ice and someone decides to walk across it anyways, the injured party is likely responsible for any injury sustained. This is especially true is alternate ways of walking were available. Everyone has a duty to avoid open and obvious hazards and property owners are not liable for injuries occurring as a result of assuming risks.

Whether a property owner is liable depends on the circumstances surrounding the icy/snow conditions. However, it is always a good idea to shovel and salt your property as soon as it is possible for your own safety and the safety of those around you.

If you find yourself in a position where someone has fallen on your property or you have fallen on someone’s property, please call our office toll free at 1-888-488-4LAW or via email at [email protected]. We look forward to hearing from you.

– Attorney Kendall Hodges

“The hidden hazards of a simple claim”

Friday, February 1st, 2019

Even in situations where there is a clear injury and there is an identifiable wrongdoing by a third party, the proper route for enforcing your rights isn’t always clear. This was reinforced this month in the federal U.S. District court Northern Illinois, where parties purporting to represent a class of horse owners alleged that their animals were injured and, in some cases, killed by contaminated horse feed manufactured by Archers-Daniels-Midland Company (ADM). Berarov et al v. Archer-Daniels-Midland Company et al, case number 16C7355. The suit scraped past and attempt by ADM to get it dismissed, but not without a good amount of trimming by the judge.

The facts alleged are simple: ADM manufactures feed for cattle and horses at its plant in Illinois. The cattle feed is fortified with monensin, which increases weight gain by cows. Unfortunately, monensin is also toxic to horses. ADM advertised its horse feed on its website using a number of statements touting its quality and consistency. In 2014 and 2015, the plaintiff’s fed their horses feed from the plant and they were sickened and died of symptoms that looked very much like monensin poisoning, and the feed tested positive for monensin. ADM issued a press release stating that the amount of monensin in their feed was negligible and safe, but the owners, located in South Carolina and Michigan, brought suit in Illinois claiming that the cattle feed had cross-contaminated the horse feed with dangerous amounts of the chemical, and filed suit.

So what’s the problem? Shouldn’t they just got to court and argue over the facts? Not so fast. The owners alleged claims under the Illinois Food, Drugs, and Cosmetics Act, the Illinois Consumer Fraud and Deceptive Trade Practices Act, negligent misrepresentation, strict product liability, unjust enrichment, and breach of express warranty. ADM argued in its Motion to Dismiss the complaint that the whole thing should be tossed out on a number of procedural grounds.

First, ADM argued that the whole suit should be thrown out because the Federal Food, Drug, and Cosmetic Act effectively preempts the state law that the owners were attempting to use in the suit, and that since the owners didn’t plead any claims under the Federal Act the whole complaint must be dismissed. The court moves past this argument pretty quickly, noting that, just as for things like minimum wage, discrimination law, gambling or highway safety, nothing in the Federal Act suggests states can’t have higher standards than the federal laws.

The other arguments by ADM are more problematic for the horse owners. The Judge dismissed the count brought under the Illinois Food, Drugs, and Cosmetics Act because the Act doesn’t actually give individuals a right to sue-it only sets up the state of Illinois itself to have actions against violators, like a criminal penalty. The unjust enrichment claim was deemed to be incoherent because it alleged the existence of a contract, whereas unjust enrichment is about implied contracts. For the Illinois Consumer Fraud and Deceptive Trade Practices Act, the court dismissed the claim because the complaint did not allege enough information to show that the court had jurisdiction, given that the horses injured were in other states (granted, if the feed was actually bought in Illinois the owns might get this claim reinstated.) Similarly, for the negligent misrepresentation and breach of express warranty claims, the court ruled that, while ADM’s claims about its feed could be deemed actionably false, the owners had not alleged that they actually saw the claims on the website; they will need to plead more information to sustain those claims. The strict product liability claim was complicate by the fact that Michigan has somewhat unusual requirements for pleading product liability, but the court did leave open the possibility of changing the complaint to meet them.

So the suit itself survives, but the horse owners are going to do some serious editing to their complaint itself. This is a perfect example of a tragic fact pattern that seems like it ought to make for a straightforward case of poisoned horse food, but where finding the proper form and content of the legal complaint itself has proved far more complicated for the injured party.

-Attorney Travis Dunn