Gausnell, O’Keefe & Thomas, LLC Principals Seth Gausnell and Josh Breithaupt recently obtained a dismissal with prejudice of a matter that had been pending in St. Clair County Circuit Court for several years. Plaintiff’s counsel had repeatedly solicited settlement offers over the years while simultaneously dragging his feet on discovery in order to prolong the case in the hope of an eventual settlement. However, defense counsel Seth Gausnell and Josh Breithaupt never made a single settlement offer on the case. Ultimately, Plaintiff dismissed the case with prejudice when Plaintiff was backed into a corner with a pending discovery sanctions motion, and the prospect and expense of a jury trial.
The claim involved a unique situation occurring on October 10, 2010, where Plaintiff was involved in a fistfight with an individual at a party held at Defendant’s home. Defendant’s son lived in the home and routinely had Saturday gatherings of friends where they played competitive horseshoes and drank alcohol. At one of these gatherings, a physical altercation erupted between Plaintiff and a female party-goer named over the ownership of a particular pair of horseshoes.
Another party attendee, who happened to be the boyfriend of the female party-goer, witnessed the fight and picked up a metal fire poker to intervene. In doing so, this party attendee struck Plaintiff with the metal fire poker several times.
Plaintiff sued Defendant (the owner of the property) on a premises liability theory for the personal injuries he allegedly sustained in the fight and criminal assault perpetrated by another attendee to the party. However, Illinois law is clear a landowner does not have a duty to protect another from the harmful or criminal conduct of a third party or to control the conduct of a third party. Hills v. Bridgeview Little League Ass’n, 194 Ill.2d 210, 228 (2000) (citing Restatement (Second) of Torts § 314) (remaining citations omitted).
Additionally, Illinois law recognizes that an affirmative duty to aid or protect another arises only within the context of a legally recognized special relationship, and absent any special relationship between the Defendant and the injured party or the Defendant and the wrongdoer, there can be no affirmative duty imposed on another to warn or protect against the criminal conduct of a third party. Id. Illinois law has long been clear that there are only four special relationships existing which are: (1) common carrier and passenger; (2) innkeeper and guest; (3) custodian and ward; and (4) business inviter and invitee. Id. at 243–44.
As such, Defense counsel filed a Motion for Summary Judgment arguing that Defendant had no duty to protect Plaintiff from the criminal conduct of a third-party at the property. This Motion was denied by the Circuit Court. However, in the companion case that Seth Gausnell and Josh Breithaupt also defended, the Illinois Court of Appeals for the Fifth District overturned the Circuit Court’s denial of the same Motion for Summary Judgment on the exact same issue in the companion case.
Knowing that they had already prevailed in the Appellate Court on the key legal issue in the case, Defense counsel Seth Gausnell and Josh Breithaupt continued to press for expert discovery and refused to issue any settlement offer on the case. Once faced with a potential Motion for Discovery Sanctions and the expected expense of expert discovery, Plaintiff saw the writing on the wall and dismissed the claim with prejudice finally bringing this multi-year litigation to a successful conclusion for the client.