Quick Takes on Thursday's Illinois Supreme Court opinions
Our panel of leading appellate attorneys review Thursdays's Illinois Supreme Court opinions in the Civil case Carney v. Union Pacific R.R. Co. and the criminal cases People v. Jones and People v. Minnis.
By Michael T. Reagan, Law Offices of Michael T. Reagan
In affirming the circuit court’s grant of summary judgment to the defendant Union Pacific, and reversing the appellate court, which had decided this case with a Rule 23 Order, the supreme court significantly examined three sections of the Restatement (Second) of Torts which are frequently invoked in cases involving injuries during construction. Justice Theis wrote for the court. Justice Kilbride dissented.
Union Pacific sold three abandoned railroad bridges to a scrap contractor, Happ’s, Inc. Happ’s engaged the Carney Group, Inc. d/b/a Chicago Explosive Services on a “handshake agreement” to assist in the removal of the bridges. Plaintiff Patrick Carney was an employee of Carney Group, Inc., which was owned by Patrick’s father. Patrick was severely injured when difficulties were encountered in using a crane to lift the steel structures of the bridge. Those difficulties were caused, in part, by the extension of steel plating beneath the surface of the ground into the adjoining ground at the end of the bridge.
Against Union Pacific, plaintiff invoked three sections of the Restatement (Second) of Torts, section 414 (“Negligence in Exercising Control Retained by Employer”); section 411 (“Negligence in Selection of Contractor”); and section 343 (“Dangerous Conditions Known to or Discoverable by Possessor”).
The court began its analysis of section 414 by noting that even though the Illinois Supreme Court had implicitly recognized section 414 as an expression of Illinois common law in Larson v. Commonwealth Edison Co., 33 Ill.2d 316 (1965), section 414 garnered additional attention after the repeal of the Structural Work Act, effective February 14, 1995. The setting of section 414 is that one who employs an independent contractor is not generally liable for harm caused by the contractor’s acts or omissions. It is the party in control, the independent contractor, who is usually charged with responsibility. The court notes that section 414 provides that a hiring entity may yet be liable for its own negligence where it retains some control over the independent contractor. The court noted that the body of Illinois appellate decisions have cited section 414 for the imposition of both direct liability and vicarious liability against the employer of an independent contractor. The court further stated that “the rule set forth in section 414, however, articulates a basis only for imposition of direct liability.” In taking up the “confusion” which has arisen in connection with comment a, the court stated that “the first sentence of comment a does not explain when section 414 applies. Rather, it explains when section 414 does not apply.” “Section 414 takes over where agency law ends.”
The court did not have reason to take up the possibility of vicarious liability, finding that plaintiff had not pursued such a claim. Therefore, the court’s analysis was confined to whether defendant retained control over the work of its contractor so as to impose direct liability under section 414. After examining the contract (“the best indicator”), a set of engineering drawings which contained sequencing notes, and defendant’s conduct both prior to and subsequent to the accident, the court concluded that “the record contains no evidence that defendant retained at least some degree of control over the manner in which Happ’s performed the bridge removal work.” Although the details of that analysis cannot be taken up within this summary, several points merit mention. The court cited with approval appellate opinions which have held that a general right to enforce safety does not amount to retained control. The court cited with apparent approval appellate opinions holding that the right to stop the work, to tell the contractors to be careful and to change the way something is being done if the defendant felt something was unsafe does not establish sufficient control.
The court next took up plaintiff’s claim grounded upon section 411, that Union Pacific was negligent in its selection of Happ’s to remove the Polk Street bridge. That section, previously recognized by the court in 1971, states that “an employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a careful and competent contractor” in certain circumstances. The supreme court agreed with both courts below that a fact question existed as to whether defendant failed to exercise reasonable care in the selection of Happ’s. That did not end the analysis, however, because the trial court ruled that plaintiff, as an employee of Carney Group, which had partnered with Happ’s, was not a “third person” to whom a duty was owed. The court rejected plaintiff’s argument that he was not in the course of his employment at the exact time of the injury, based largely upon the plaintiff having made and settled a significant workers compensation claim. The remaining question though was whether his status as an employee of Carney Group placed him outside the protected class of “third persons.” It did. The court distinguished plaintiff’s status from members of the general public, who would be uninvolved in the construction process.
The court last took up plaintiff’s claim under section 343, involving unreasonably dangerous conditions on land. Plaintiff could not satisfy the first criterion that the risk be a “condition on the land,” because the underlying problem of the steel plate was a part of the bridge which Happ’s had purchased “as is.” The court also concluded that the Union Pacific did not have actual or constructive knowledge of the fact that the steel plate extended an unusual distance into the adjoining earth. The bridge had been constructed in the 1900’s, the bridge was out of service before Union Pacific became its owner, and there was no evidence of actual knowledge.
Justice Killbride, dissenting, identified questions of fact which he asserts existed under each of plaintiff’s theories.
On a procedural note, the court had at first denied the petition for leave to appeal in this case, but then allowed it upon reconsideration. In this opinion, the court denied plaintiff’s request that the appeal be dismissed as having been improvidently granted based upon the contention that numerous factual disputes would hamper the work of the court.
By Kerry J. Bryson, Office of the State Appellate Defender
Derrick Jones was convicted of aggravated robbery, a Class 1 felony. Prior to trial, the court inquired of the parties whether the sentencing range would be 4-to-30 years upon a conviction, and the parties agreed that it would. The parties believed Jones to be extended-term eligible based upon a prior juvenile adjudication of residential burglary.
At issue in the Illinois Supreme Court was whether Jones’s prior juvenile adjudication was the equivalent of a prior conviction for Apprendi purposes and whether a presentence investigation report (PSI) was adequate proof of that prior adjudication. In a 4-3 opinion, the Court upheld the defendant’s extended-term sentence.
The Court noted a split of authority on the question of whether a juvenile adjudication constituted a prior conviction for Apprendi purposes.
Ultimately, the court found that both a prior conviction and prior delinquency adjudication are the result of an individual’s prior unlawful behavior and both have the same constitutional safeguards, rendering them reliable. The Court rejected any distinction from the lack of a jury trial right in delinquency proceedings because there is no constitutional right to a jury trial for a juvenile. As a matter of first impression, the Court held that a delinquency adjudication is the same as a prior conviction and thus falls within the exception to Apprendi and within an exception to the statutory requirement that extended-term eligibility factors be pled in the charging instrument (725 ILCS 5/111-3(c-5)).
The Court went on to find that the PSI was adequate to prove the existence of the prior delinquency adjudication without running afoul of Shepard v. U.S. because Shepard dealt with the types of information a court can rely upon to determine facts about a prior conviction rather than simply to determine the existence of a prior conviction.
Justice Burke authored a dissent, joined by Justice Kilbride and Chief Justice Garman. The dissent engaged in a statutory construction analysis and concluded that prior “conviction” meant exactly that, a “conviction.” Nothing numerous instances were a “conviction” has been held not to include a delinquency adjudication, the dissent would have found plain error in the defendant’s extended-term sentence.
By Kerry J. Bryson, Office of the State Appellate Defender
Mark Minnis was convicted of criminal sexual abuse for engaging in an act of sexual penetration with a 14-year-old when he was 16. By virtue of that conviction, Minnis was required to register as a sex offender. The registration provision requires, in part, that an offender disclose and periodically update information about their internet identities. The notification law makes this information available to the public for adult sex offenders, and to a more limited group of individuals in the case of juvenile sex offenders.
Initially, Minnis disclosed two email addresses and one Facebook account.
In a later registration, he omitted the Facebook account. Officers subsequently viewed Minnis’s active, public Facebook profile, and Minnis was charged with failure to register for failing to disclose his Facebook page. The circuit court found the required disclosure of internet identities to be overbroad and dismissed the charge. The State appealed to the Illinois Supreme Court as a matter of right.
The Supreme Court reversed. First, the Court noted that the challenge had to be considered as a facial challenge because the lower court had not held an evidentiary hearing or made any factual findings necessary for evaluation of an “as-applied” challenge.
The Court went on to find that the registration requirement in question was a content-neutral limitation on speech, and thus was subject to intermediate, rather than strict, scrutiny. To survive intermediate scrutiny, the regulation must serve or advance a substantial government interest unrelated to the suppression of free speech and must not burden substantially more speech than necessary to further that interest.
The Court found that the internet disclosure provision advances the substantial government interests of preventing sex offenses against children and protecting the public from the danger of recidivist sex offenders. The Court concluded that, while the disclosure requirements are broad, that breadth is required for the public to be able to protect itself because they enable the public to avoid communicating with a registered sex offender.
In reaching its decision, the Court rejected defendant’s argument that the internet disclosure provision is “poor policy,” deferring to the legislature for determination of whether legislation is good policy and noting that the court’s role is limited to determining whether legislation is constitutional.