Thursday, March 26, 2015

The Estrays and Lost Property Act

The Estrays and Lost Property Act (here) is pretty interesting. I stumbled across it last week while doing other research. I quickly dusted off the Black's Law Dictionary for the definition of estray:
estray (e-stray), n. 1. A valuable tame animal found wandering and ownerless; an animal that has escaped from its owner and wanders about. 2. Flotsam.
Then, of course, I had to look up flotsam:
flotsam (flot-səm), n. Goods that float on the water's surface after being abandoned at sea.
This all makes sense because Section 1 of the Act says that "Any horses, mules, asses, cattle, swine, sheep or goats found straying, the owner thereof being unknown, may be taken up as estrays in the same manner as provided for lost goods." 

Also, Section 21 of the Act says that "Any raft, timbers or plank found floating adrift on any water course within the limits or upon the borders of this State, the owner thereof being unknown, may be taken up in the same manner as provided for lost goods."

So, if both estrays and flotsam are treated as if they are lost goods, the question becomes how exactly should lost goods be treated. It turns out that the Act effectively outlaws the ancient playground theory of "finders keepers, losers weepers." 

Section 27 of the Act provides that "If any person or persons find any lost goods, money, bank notes, or other choses in action, of any description whatsoever, such person or persons shall inform the owner thereof, if known, and shall make restitution of the same, without any compensation whatever, except such compensation as shall be voluntarily given on the part of the owner." 

If the owner is not known, and if the value of the lost property is more than $100, the Act requires the finder to file an affidavit in the circuit court that contains a description of the found property. The court shall then enter an order stating a description and the value of the property. That order shall be "transmitted to the county clerk to be recorded in his estray book," and also filed in the office of the county clerk. 

After the county clerk receives that order, the county clerk shall publish notice in a public newspaper for three consecutive weeks. If the owner does not claim the property within one year of publication, ownership vests in the finder. A very cumbersome process, but the Act provides liability for double the value of the property if the finder sells, trades, destroys or otherwise disposes of the found property without complying with the Act.

Lastly, I found it odd that Section 27 includes "choses of action" in the list of property that could possibly be found in this state causing them to become subject to the terms of the Act. In order to try to make sense of this, I went back to the Law Dictionary:
chose in action. 1. A proprietary right in personam, such as a debt owed by another person, a share in a joint-stock company, or a claim for damages in tort. 2. The right to bring an action to recover a debt, money, or thing. 3. Personal property that one person owns but another person possesses, the owner being able to regain possession through a lawsuit.
Oh ya, that's right. A proprietary right in personam. I can't tell you how many times I have been walking down the street, something catches my eye, and I've said to myself "well look at that...there's a chose in action on the ground."

Saturday, March 21, 2015

The Illinois Gender Violence Act

Last December, a doctor who practiced in Yorkville and Naperville was arrested on charges of criminal sexual assault. The Kendall County State's Attorney's Office alleges that the doctor inappropriately touched or fondled several female patients between 2012 and 2014. Kendall County detectives are looking for additional victims.

The victims of the sexual assaults are entitled to damages from the offending doctor, and depending on the circumstances, may also be entitled to damages from the hospitals and clinics that employed the doctor. Obvious theories of common law recovery include sexual battery, assault, and intentional infliction of emotional distress, among others. 

These victims, however, should not overlook the Illinois Gender Violence Act (the "Act"). The Act provides for a private cause of action for anyone who has been subjected to gender-related violence. Gender-related violence is defined as "a physical intrusion or physical invasion of a sexual nature under coercive conditions satisfying the elements of battery under the laws of Illinois, whether or not the act or acts resulted in criminal charges, prosecution, or conviction." 

Victims of gender-related violence may bring a civil action for damages, injunctive relief, or other appropriate relief. In an action brought under the Act, the court may award actual damages, damages for emotional distress, or punitive damages. A judgment may also include attorney's fees and costs.

If anyone has questions about the applicability of the Illinois Gender Violence Act, please do not hesitate to send a confidential email HERE.  

Friday, March 20, 2015

Appellate Court Reflects on Exculpatory Clauses

In Hawkins v. Capital Fitness, Inc., 2015 IL App (1st) 133716 (here), Michael Hawkins sued his health club for negligently installing a wall mirror that fell on him while he was exercising. The trial court entered summary judgment in favor of Capital Fitness because the exculpatory clause in the plaintiff’s membership agreement barred negligence actions against the fitness center. The following provision of the exculpatory clause does appear to exempt Capital Fitness from injuries caused by faulty maintenance of its facilities.
THIS HOLD HARMLESS FROM [sic] AND WAIVER AND RELEASE OF ALL LIABILITY INCLUDES, WITHOUT LIMITATION, (i) INJURIES, DAMAGES OR DISEASES WHICH MAY OCCUR AS A RESULT OF (A) YOUR USE OF ANY FACILITY OR ITS IMPROPER MAINTENANCE, (B) YOUR USE OF ANY EXERCISE * * * EQUIPMENT, (C) IMPROPER MAINTENANCE OF ANY EXERCISE * * * EQUIPMENT OR FACILITIES * * * AND (ii) INJURIES OR MEDICAL DISORDERS RESULTING FROM EXERCISE, OR USE OF EQUIPMENT OR FACILITIES, AT THE FACTILITY * * *  (Emphasis added).

The appellate court acknowledged that “[a] literal reading of the membership agreement reveals that Hawkins released Capital Fitness of all liability from injury, no matter the source, cause, or circumstance.” So, it would seem that the appellate court should have affirmed the entry of summary judgment for the defendant since the plaintiff claimed that the club’s maintenance crew improperly hung the mirror and the disclaimer held Capital Fitness harmless for improper maintenance of the club’s facilities.   
                     
But according to the appellate court, the ultimate question was whether the mechanism causing the injury was a type contemplated by the parties when they executed the membership agreement. Vacating the entry of summary judgment, the court concluded that reasonable minds could differ on whether the mirror-falling incident was an ordinary risk associated with the use of a fitness facility. Presumably, dropping a barbell on your throat constitutes a risk associated with using a fitness club, while a scalding shower, a defective closet door, or an unhinged mirror might not be the type of risk one assumes when agreeing to a fitness center’s exculpatory clause.

Hawkins will aid plaintiffs who assert that a genuine issue of material fact exists as to whether an injury sustained while using a health club or other sports or recreational venue, was caused by a mechanism contemplated by the parties at the time they agreed to the exculpatory clause. The argument against summary judgment is further bolstered by the strict construction of an exculpatory clause against the party who relies on it.

Thursday, March 12, 2015

25 cats is 23 too many.

Today's Westlaw Headnote of the Day:

Twenty-five cats, however cleanly, were twenty-three cats too many, and eviction would lie, should tenant not comply with edict that two were aplenty. Dunbar Paint Supply Corp. v. Hunt, 232 N.Y.S.2d 637 (N.Y.City Civ.Ct., 1962)