CM Report of Recent Decisions – 2016 Vol. 1

Articles in this report

*SIDEBAR: Appeals Of Denials Of Summary Judgment In New York: A Powerful Weapon In The Litigation Arsenal
New York is a unique jurisdiction of opportunity in that non-final trial court orders, including orders denying summary judgment, are generally appealable. This contrasts with the majority of jurisdictions in which only final orders granting summary judgment are appealable. This contrasts with the majority of jurisdictions in which only final orders granting summary judgment are appealable. The benefit of this procedural setup is tremendous.

EMPLOYMENT LAW UPDATE: EEOC Issues New Rule On Respondent Position Statements
Effective January 1, 2016, the Equal Employment Opportunity Commission (“EEOC”) instituted a new national rule on respondent position statements.

Evaluating, Negotiating, And Effectuating Settlements On Appeal
While the vast majority-approximately 90 percent-of civil cases settle prior to trial, most cases that reach the appellate stage do not. Many believe that once an appeal is taken, the opportunity to settle has passed and final resolution must come from the reviewing court rather than the litigants themselves. But that is not always so. Many cases can and do settle on appeal. This article examines what it takes to settle a case during an appeal, from evaluating the likelihood of success on the merits before an appellate tribunal to accurately budgeting the time and expense of prosecuting or defending the appeal through decision.

HR Managers Could Be Held Individually Liable For FMLA Violations
In determining who owes employees a duty under the FMLA, and who may be held liable for violations of the FMLA, courts have consistently held that it is the entity or organization that employs the employee. Generally, individuals making FMLA decisions (e.g. human resources personnel, managers) have not been held individually liable for any violations of the FMLA.

Illinois Supreme Court Splits Along Party Lines To Strip Municipalities Of Protection Against Tort Suits
In a 4-3 decision, the Illinois Supreme Court handed down its opinion in Coleman v. East Joliet Fire Protection District, 2016 IL 117952 (2016), abolishing the “public duty rule” that historically protected local governmental entities from tort suits based on alleged failure to provide individual members of the public with adequate police, fire and emergency protection services. The Justices aligned along political party lines, with the Democratic majority deciding to strip Illinois local governments of one of their long-held protections against tort liability.

SPECIAL ALERT: FOCUS ON INDIANA–Indiana Supreme Court Strikes Down Statute Of Repose In Asbestos Cases
The Indiana Supreme Court recently held that the section of the Indiana Product Liability Act (the “Act”), I.C. §34-20-3-1 et. seq., exempting certain asbestos victims from the Act’s statute of repose violates the Rights to Remedy Clause and the Equal Privileges and Immunities Clause of the Indiana Constitution. That section of the Act states that it is void in its entirety if any part of it is held invalid.

The Malfunction Theory: Product Liability’s Saving Grace
Property damage cases arising from a failed product, such as a failed appliance or other item causing a destructive fire, are fairly typical. While a traditional negligence cause of action requires the plaintiff to prove the defendant manufacturer, distributor and/or retailer (collectively referred to in this article as “defendant” or “defendant manufacturer”) breached a duty owed to plaintiff, which then resulted in (or proximately caused) plaintiff’s damages, a sustainable product liability cause of action only requires proof: 1) that the defendant supplied a defective product, and 2) this defect resulted in injury to the plaintiff.

Trigger Of Coverage For §1983 Claim Based Upon Self-Incrimination
In recent years, state and federal courts in Illinois have addressed the debate regarding the appropriate trigger of liability coverage in the context of police misconduct cases. These cases have reached conflicting decisions in the context of claims for malicious prosecution and/or wrongful imprisonment.

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