February 2026 IICLE FLASHPOINTS

Excerpted from §3.54 of Telly C. Nakos, Ch. 3, Opening Statement, CIVIL PRACTICE: TRYING THE CASE (IICLE®, 2026)

On March 31, 2025, the First District Appellate Court in Kroft v. Viper Trans, Inc., 2025 IL App (1st) 240220, 263 N.E.3d 1245, 484 Ill.Dec. 459, issued an opinion addressing a plaintiffs’ law firm’s use of social media posts made on the same day opening statements concluded at trial. Kroft involved a motor vehicle accident in which one of the plaintiffs sustained injuries rendering her a quadriplegic. A loss of consortium claim was also filed on behalf of the husband. In the initial trial, the jury returned a verdict of slightly over $43 million in total between the two plaintiffs. The trial court granted the defendants’ motion for a new trial, finding that plaintiffs’ counsel had repeatedly violated various rulings on motions in limine throughout the trial and had made improper attacks on the defendants’ counsel during trial. No appeal was taken from the trial court’s granting a new trial, and the case was reassigned to a different judge for a new trial. Said trial commenced on July 5, 2023. Jury selection began on July 6, 2023, and continued through the morning of July 7, 2023. During the jury selection process, several potential jurors informed the court that they recognized the plaintiffs’ attorney from television commercials. After the jury was empaneled on July 7, 2023, and before opening statements, the trial court read the general cautionary instruction as set forth in I.P.I. — Civil No. 1.01(A). The instruction cautioned the jurors not to “do any independent investigation or research on any subject relating to the case.” 2025 IL App (1st) 240220 at ¶10, quoting I.P.I.— Civil No. 1.01(A)[6]. The trial court also specifically instructed the jury to “not use the Internet, including Google, ChatGPT, Wikipedia, Facebook, Twitter, Instagram, TikTok, Snapchat, Reddit” or other sources to search for any information about the case, people involved in the case, or the law that may apply to the case. 2025 IL App (1st) 240220 at ¶10.

Opening statements proceeded on July 7, 2023. At some time later the same day, a post was published to the blog hosted by the plaintiffs’ law firm’s website. The blog was also posted on the law firm’s public Facebook page on the same day. The blog was titled, “What Jurors Should Know But Don’t.” 2025 IL App (1st) 240220 at ¶11. The blog post, in part, read as follows:

Jurors are never told about appeals or when a new trial is ordered. For example, a new trial was recently ordered in the case of Kroft v. Viper Trans, Inc., PR Rental, Inc., 2016-L-009466. “While it’s sad the former Judge rejected the first jury’s verdict and threw out all their hard work, the case has been reassigned to a new, tremendous trial judge and we’re confident the new trial will be a fair one,” said Kenneth Allen, the lead trial lawyer representing Cindy Kroft. “Actually, this decision is a blessing as Cindy’s condition has gotten much worse since the first trial,” he said. “$43 million now doesn’t come close to making up for the grievous human losses and economic harms caused by defendants’ inexcusable negligence.” Id.

The blog continued to address the plaintiffs’ worsening conditions and went on to specifically state:

Co-counsel Otto Shragal said, “[O]nce the new jury hears about Cindy’s syrinx and her brain damage — both were kept from the jury at the last trial — we expect the jury to return a fair and reasonable verdict in a range closer to $100 million. That would serve justice.” But the jury should be told this is a new trial so they understand why it’s taken so long. Why not?

This is just one example of how jurors are routinely kept in the dark about important evidence. [Emphasis in original.] Id.

On the fourth day of testimony (July 12, 2023), the defendants presented a motion for mistrial after one of the defense attorneys informed the court that an insurance company’s representative sitting in the courtroom had overheard a juror mention the word “retrial” to the other jurors during a sidebar. After hearing testimony under oath from the insurance representative regarding what the juror had said during the sidebar, the trial court denied the defendants’ motion for a mistrial and determined that overhearing the word “retrial,” in and of itself, did not provide sufficient information for the court to conclude that anything improper had occurred. 2025 IL App (1st) 240220 at ¶¶12 – 13.

The next day, July 13, 2023, the defendants made a second motion for mistrial prior to the beginning of any further testimony. Counsel for one of the defendants advised the court that the previous evening, the defendants discovered the above-referenced social media post(s) on the plaintiffs’ attorneys’ website and Facebook page. The posts had been present on the plaintiffs’ attorneys’ social media accounts since July 7, 2023. In response, the plaintiffs’ attorneys stated the blog posts were written by someone else, and they had not seen the posts prior to that morning. After a recess, the court decided to bring the jury into the courtroom and collectively address them as follows:

Jurors, I know that you are aware that I told you at the very beginning when you were chosen as jurors and then I reminded you again last night that it’s very important that nobody discuss this case with anyone else once you’re a juror . . . other than the fact that you can discuss it with the other jurors when you’re deliberating. And do not do any exploration online or talking to anybody or even talking to anybody who saw anything online. All right. Because it’s so important as a jury. Your job is so critical to a fair jury trial.

All right. I also told you that if you became aware of any violation of that, to let me know. And you can let me know through telling the deputy or the clerk or me. And I’ve not heard anything. So my assumption is that nobody has violated this or heard anybody else talk about it. Okay. And I’m just reminding you that you’re still under oath as jurors in this case.

There’s an issue that’s been brought to the Court’s attention, and so I’m just going to ask you to raise your hand if you have done any investigation about the lawyers, the case, the parties, the judge, anything past or present about this case or any of the facts of the case, or if you have talked to anybody who may have done some kind of research and informed you of that. Don’t tell me what it is you did. But has anybody done that? Please raise your hand.

(No response)

THE COURT: I’ve got no hands. That’s a relief, guys.

It’s very important that you remain fair and impartial and give both sides here a fair hearing in this case. 2025 IL App (1st) 240220 at ¶16.

Thereafter, the trial court denied the defendants’ second motion for mistrial and ordered the plaintiff’s attorneys to immediately remove the posts from all social media. After the conclusion of all testimony and closing arguments, the jury returned a verdict in favor of the plaintiffs, totaling $43,825,000 ($38,825,000 for Cynthia Kroft and $5,000,000 for Mark Kroft). 2025 IL App (1st) 240220 at ¶17.

The defendants filed posttrial motions, claiming the jury had been tainted by the social media posts and that, accordingly, the defendants had not received a fair trial. The motions were denied and defendants appealed. 2025 IL App (1st) 240220 at ¶¶17 – 18.

On appeal, the First District Appellate Court emphasized the importance of protecting our justice system by guarding “against any suspicion that the jury has been subjected to outside influences by the conduct of attorneys, parties, or those acting on their behalf, which might affect the jury’s verdict.” 2025 IL App (1st) 240220 at ¶34. See United States v. Bowen, 969 F.Supp.2d 546, 577 – 778 (E.D.La. 2013), aff’d 799 F.3d 336 (5th Cir. 2015); Budoff v. Holiday Inns, Inc., 732 F.2d 1523, 1525 – 1526 (6th Cir. 1984). The court went on to quote Vane v. City of Evanston, 150 Ill. 616, 625 – 626, 37 N.E. 901 (1894), emphasizing how the Illinois Supreme Court made it clear that:

No right is more valuable to the citizen, or more important in the due and orderly administration of justice, than that jurors should be kept absolutely free from anything that might improperly influence their deliberations. . . .

. . . [P]ublic policy requires, and the pure and orderly administration of justice demands, that the jury, to whom the law commits the rights, liberties and lives of men, should be kept absolutely free from suspicion. The law will not tolerate the slightest suspicion that the successful litigant has corrupted or improperly influenced the jury, or that the jurors have been directly or indirectly tampered with, lest justice be subverted and its administration be brought into contempt. Kroft, supra, 2025 IL App (1st) 240220 at ¶35.

While recognizing that the jury was indeed given a preliminary instruction not to use the internet or other social media sources to search for information about the case, the court recognized the dangers associated with the concurrent use of social media platforms during an ongoing trial. The Kroft court pointed out that although the principles were set forth by the Illinois Supreme Court in Vane “well over a century ago, they remain good law, and we find them applicable to our consideration of the issues we confront in this case.” Id. With said principles serving as cornerstones to our system of justice, the appellate court ruled that the trial court abused its discretion when denying the defendant’s motion for a mistrial. The court specifically stated:

We reach this conclusion based upon the serious effort that was made by the plaintiffs’ attorneys during trial to reach the jury and influence its verdict by communicating information that was highly prejudicial to the defendants’ right to a fair trial. 2025 IL App (1st) 240220 at ¶37.

The court further explained that even if the plaintiffs’ attorneys effort was not intentional, “the publication of these posts during trial certainly demonstrates a reckless disregard by the plaintiffs’ attorneys for the likelihood that jurors deciding this case could have been exposed to information about it that was inaccurate, misleading, and in contravention of well-established rules governing the information received by juries during personal injury trials.” 2025 IL App (1st) 240220 at ¶38.

Accordingly, in today’s advanced technological age, the trial attorney must be certain to check various social media platforms to ensure that inappropriate social media posts are not disseminated during the trial of a matter and before a jury renders a verdict. In fact, it is suggested a pretrial motion in limine be filed with the court requesting an order barring all counsel (and respective law firms) involved in a trial from posting any information about the case on social media.

Telly C. Nakos, O'Connor & Nakos Ltd., Chicago

Telly C. Nakos is Vice President and Cofounder at O’Connor & Nakos Ltd., in Chicago, where he concentrates his practice in personal injury. He is a two-time recipient of the American College of Trial Lawyers Justice Lewis F. Powell, Jr. Award for Excellence in Trial Advocacy, and he has also received the International Academy of Trial Lawyers Advocacy Award. Nakos was also selected as one of Illinois’ 40 under Forty by Law Bulletin Media. He received his undergraduate degree from Wabash College and his J.D. from Case Western Reserve University School of Law.

The Appellate Court for the First District recently issued an opinion worth reviewing insofar as it presents a good overview of Illinois law pertaining to claims for breach of fiduciary duty and, to some extent, claims for breach of procedural due process.

Facts

In Getman v. McPike, 2025 IL App (1st) 250771-U, ¶4, plaintiff unit owner Marot Getman was given permission by her condominium association board of directors to remodel one of the bathrooms in her unit. After her contractor began demolition work, the association learned that Getman had failed to obtain a building permit for the remodeling project. Id. The approval to proceed with work was never finalized at a board meeting because the board learned that no permit had been obtained. Id. The manager notified Getman’s contractor to cease work until a permit was obtained and work was approved to resume. Id.

Getman filed a small claims action against the directors of the association, but not the association itself. 2025 IL App (1st) 250771-U at ¶5. After the initial complaint was dismissed, an amended complaint was filed sounding in breach of fiduciary duty, violation of due process, and promissory estoppel. Id. The plaintiff’s counts sounding in breach of fiduciary duty and violation of due process were dismissed pursuant to the defendants’ motion under §2-615 of the Code of Civil Procedure, 735 ILCS 5/2-615. 2025 IL App (1st) 250771-U at ¶6. A bench trial was held on the promissory estoppel count, and judgment was entered against Getman for failing to meet her burden of proof and presenting no evidence of damages. 2025 IL App (1st) 250771-U at ¶7.

Analysis

The appellate court’s analysis initially observed that the plaintiff’s pro se brief was substantially deficient in violation of Illinois Supreme Court Rule 341(h) “in multiple manners,” including failure to include a sufficient statement of facts, failure to include an argument with citations to the record supporting it, and failure to develop multiple contentions on appeal. 2025 IL App (1st) 250771-U at ¶11. Rather than striking the brief and dismissing the appeal, the court chose to review the case because the record was short and the defendants’ brief provided sufficient information to review the plaintiff’s contentions on appeal. 2025 IL App (1st) 250771-U at ¶12.

1. Breach of Fiduciary Duty

The appellate court presented an excellent breach of fiduciary duty analysis. It began by stating the elements of pleading a cause of action for breach of fiduciary duty: “[P]laintiff must plead ‘that a fiduciary duty exists, that the fiduciary duty was breached, and that such breach proximately caused the injury of which the plaintiff complains.’ ” 2025 IL App (1st) 250771-U at ¶16, quoting Neade v. Portes, 193 Ill.2d 433, 739 N.E.2d 496, 502, 250 Ill.Dec. 733 (2000). The court observed that Getman correctly pleaded the first element, namely that the directors owe fiduciary duties to unit owners pursuant to §18.4 of Illinois’ Condominium Property Act, 765 ILCS 605/1, et seq. 2025 IL App (1st) 250771-U at ¶16.

However, Getman “failed to sufficiently allege a breach of that duty. This fiduciary duty requires that members of the board of managers strictly comply with the condominium association’s bylaws, declaration and the Act.” 2025 IL App (1st) 250771-U at ¶17, citing D’Attomo v. Baumbeck, 2015 IL App (2d) 140865, ¶64, 36 N.E.3d 892, 394 Ill.Dec. 601, and Duffy v. Orlan Brook Condominium Owners’ Ass’n, 2012 IL App (1st) 113577, ¶21, 981 N.E.2d 1069, 367 Ill.Dec. 341. Additionally, the duty requires that each member of the board must “treat the unit owners ‘with the utmost candor, rectitude, care, loyalty, and good faith.’ ” 2025 IL App (1st) 250771-U at ¶17, quoting Boucher v. 111 East Chestnut Condominium Ass’n, 2018 IL App (1st) 162233, ¶36, 117 N.E.3d 1123, 427 Ill.Dec. 186.

Getman’s amended complaint failed to allege that the board’s retraction of approval for remodeling the bathroom violated an obligation of the board under the declaration, bylaws, or Act. 2025 IL App (1st) 250771-U at ¶18. Additionally, Getman failed to show how the board’s conduct failed to treat her with candor, care, loyalty, or good faith. Id.

Furthermore, the business-judgment rule is a rebuttable presumption that arises as a matter of law and must be overcome with pleadings of facts and evidence showing that the corporate directors acted in bad faith, fraudulently, illegally, or grossly overreached. 2025 IL App (1st) 250771-U at ¶19, citing Goldberg v. Astor Plaza Condominium Ass’n, 2012 IL App (1st) 110620, ¶63, 971 N.E.2d 1, 361 Ill.Dec. 346. The business-judgment rule is not an affirmative defense but rather a rebuttable presumption that must be pleaded over and supported by evidence. 2025 IL App (1st) 250771-U at ¶19, citing Babbitt Municipalities, Inc. v. Health Care Service Corp., 2016 IL App (1st) 152662, ¶47, 64 N.E.3d 117, 408 Ill.Dec. 93. The court also cited Stamp v. Touche Ross & Co., 263 Ill.App.3d 1010, 636 N.E.2d 616, 621 – 623, 201 Ill.Dec. 184 (1st Dist. 1993), in which the appellate court used a slightly different standard to rebut the business-judgment rule, namely pleading and evidence that the defendant directors decision involved fraud, bad faith, illegality, or a conflict of interest. 2025 IL App (1st) 250771-U at ¶19.

2. Due Process

To support a claim for violation of due process, Getman cited §18.5 of the Act, which states that a master association board or common interest community association board has the power to impose fines for violation of the declaration, bylaws, rules and regulations, or Act, after providing notice and opportunity to be heard. 2025 IL App (1st) 250771-U at ¶25, citing 765 ILCS 605/18.5(c)(7). (The appellate court opinion did not note that §18.5 would not be applicable to this particular defendant condominium association. However, a substantively similar provision applicable to condominium associations is contained in §18.4(l) of the Act.)

The appellate court observed the due process is protected by both the United States Constitution and Illinois Constitution. 2025 IL App (1st) 250771-U at ¶23, citing U.S.CONST. amend. XIV and ILL.CONST. art. I, §2. Generally, due-process protections are categorized as those involving procedural due process and substantive due process. 2025 IL App (1st) 250771-U at ¶23, citing In re Marriage of Miller, 227 Ill.2d 185, 879 N.E.2d 292, 300, 316 Ill.Dec. 225 (2007). “Whereas procedural due process governs the procedures employed to deny a person’s life, liberty or property interest, substantive due process limits the state’s ability to act, irrespective of the procedural protections provided.” 2025 IL App (1st) 250771-U at ¶23, quoting Miller, 879 N.E.2d at 300. “To plead a procedural due-process claim, a plaintiff must allege (1) a cognizable property interest, (2) a deprivation of that interest, and (3) a denial of due process.” 2025 IL App (1st) 250771-U at ¶23, quoting Mullins v. Evans, 2021 IL App (1st) 191962, ¶38, 187 N.E.3d 178, 453 Ill.Dec. 204. Also, there must be such a “close nexus between the State and the challenged action of the regulated entity . . . that the latter may be treated as that of the State itself.” 2025 IL App (1st) 250771-U at ¶23, quoting Hill v. PS Illinois Trust, 368 Ill.App.3d 310, 856 N.E.2d 560, 566, 305 Ill.Dec. 755 (1st Dist. 2006).

The appellate court found that Getman failed to plead any facts to support a claim for violation of due process. In particular, it noted that it was questionable (1) whether the condominium association was acting for the state in withdrawing approval to remodel the bathroom until she obtained a permit, (2) whether a person has a cognizable property interest under the constitution in remodeling that person’s bathroom, and (3) whether the directors prohibited her from remodeling the bathroom or merely delayed it until she obtained a permit. 2025 IL App (1st) 250771-U at ¶24.

The court also observed that while Getman’s amended complaint entitled the count as one pertaining to due process, in substance the allegations focused on whether the board violated 765 ILCS 605/18.5. 2025 IL App (1st) 250771-U at ¶¶24 – 25. Section 18.5 requires notice and an opportunity to be heard in connection with imposing violations of the condominium instruments, rules and regulations, and the Act. 2025 IL App (1st) 250771-U at ¶25. No fines for violations were involved in this case.

3. Other Claims

Finally, the appellate court concluded that Getman did not have a right to a jury trial when she filed a jury demand much later after she filed the action, in violation of S.Ct. Rule 285. 2025 IL App (1st) 250771-U at ¶28.

Regarding Getman’s arguments that she was not provided an opportunity to refute false testimony or that the trial court incorrectly ruled on her failure to produce evidence supporting promissory estoppel, the appellate court rejected these arguments because the record was not prepared and filed sufficiently to consider these claims. 2025 IL App (1st) 250771-U at ¶¶34 – 36.

For more information about condominium law, see CONDOMINIUM LAW: GOVERNANCE, AUTHORITY, AND CONTROLLING DOCUMENTS (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Kenneth Michaels, Jr., Bauch & Michaels, LLC, Chicago

Kenneth Michaels, Jr. is a partner at Bauch & Michaels, LLC, with over four decades of experience in commercial litigation, transactions, and corporate governance. He represents a diverse clientele, including banks, insurance companies, and Fortune 500 businesses, specializing in asset sales, property management, and loan agreements. Ken is also a recognized Illinois “Super Lawyer” in real property law and has contributed extensively to legal education and community service. He teaches at the University of Illinois Chicago Law School and has been a public official in Illinois for nearly 30 years.

In People v. Heintz, 2026 IL 131340, the Illinois Supreme Court held that a domestic battery victim’s post-incident violent conduct was inadmissible evidence under Illinois Rule of Evidence 405(b)(2) and further held that evidence of a defendant’s acquittal on domestic battery propensity charges is admissible.

In Heintz, the defendant was charged with attempted first-degree murder, aggravated domestic battery, unlawful restraint, and domestic battery against a female victim from an incident that occurred on August 6, 2020. The trial court granted the state’s motion in limine filed under 725 ILCS 5/115-7.4 (evidence of other domestic violence offenses) to present four domestic violence incidences which occurred between the defendant and the same victim between 2019 and 2020. 2026 IL 131340 at ¶¶3, 5.

The trial court denied the defendant’s motion in limine which sought to present evidence that after the charges were brought, the victim threw a beer can at the defendant in November 2020 and punched the defendant in February 2021. 2026 IL 131340 at ¶6.

The defendant claimed self-defense at trial and was found guilty of all of the charges, except for attempted first-degree murder. 2026 IL 131340 at ¶¶12, 20.

The Supreme Court affirmed the trial court’s denial of the defendant’s request to present evidence of the victim’s violent post-incident conduct. The Supreme Court noted that a witnesses’ character evidence is generally prohibited except when the accused presents evidence of a victim’s aggressive and violent character to support the accused’s self-defense theory because either the defendant’s knowledge of the victim’s violent tendencies support their perceptions and reactions to the victim’s behavior or because evidence of the victim’s propensity for violence would tend to support the defendant’s version of facts when there are conflicting accounts. 2026 IL 131340 at ¶¶28 – 29.

The Supreme Court sided with the Fourth District’s holding in People v. Evans, 2018 IL App (4th) 160686, 127 N.E.3d 695, 431 Ill.Dec. 162, in which the appellate court held that a victim’s post-incident violent conduct was inadmissible in a self-defense case and overruled the First District’s opinion in People v. Degrave, 2023 IL App (1st) 192479, 236 N.E.3d 654, 474 Ill.Dec. 421, which had held that a victim’s post-incident violent conduct was admissible in a self-defense case. 2026 IL 131340 at ¶35

Illinois Rule of Evidence 405(b) states that:

(1) In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct; and

(2) In criminal homicide or battery cases when the accused raises the theory of self defense and there is conflicting evidence as to whether the alleged victim was the aggressor, proof may also be made of specific instances of the alleged victim’s prior violent conduct.

The Supreme Court concluded that the word “prior” in Ill.R.Evid. 405(b)(2) did not mean that the victim’s conduct was limited to evidence that existed “prior to trial” because that would be mean any conduct by the victim before trial could be admissible and that would be a superfluous interpretation. Therefore, the plain language of Rule 405(b) barred evidence of a victim’s propensity for violence that occurred after the charged offense. 2026 IL 131340 at ¶33.

The Supreme Court reasoned that a victim’s conduct after being violently attacked may be the result of trauma from the attack instead of a predisposition to violence. 2026 IL 131340 at ¶34.

The Supreme Court next concluded that the trial court erred in prohibiting the defendant from presenting evidence that the defendant was acquitted of one of the cases that was used as propensity evidence against the defendant. The Supreme Court emphasized that the acquittal had a probative value for the jury and unfairly prejudiced the defendant because the other crimes evidence was allowed without the acquittal evidence. 2026 IL 131340 at ¶¶48 – 49.

For more information about criminal law, see CRIMINAL RECORDS: EXPUNGEMENT AND OTHER RELIEF (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon, IL

Matthew R. Leisten serves as the First Assistant State’s Attorney for the Ogle County State’s Attorney’s Office in Oregon, Illinois. In his role, he provides essential updates on caselaw relevant to search warrants, focusing on issues such as good faith, staleness, and the impact of modern technology on legal procedures. His experience includes handling complex warrants involving advanced technologies like geofences and Triggerfish. Additionally, Leisten contributes to legal education through publications and presentations, ensuring that attorneys stay informed about current legal trends and practices.

On January 8, 2026, Judge Matthew Kennelly of the U.S. District for the Northern District of Illinois issued a decision denying an employer’s motion for summary judgment on a former employee’s claims of disparate treatment and failure to accommodate under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §12101, et seq. The case, Scruggs v. Chicago Transit Authority, Case No. 24 C 2712, 2026 WL 63480 (N.D.Ill. Jan. 8, 2026), serves as an important reminder for all employers that an employee who is unable to perform the essential functions of their position may be entitled under the ADA to temporary placement in a another vacant position with essential functions that they can perform.

Background Facts

Plaintiff Stephanie Scruggs (Scruggs) was employed by the Chicago Transit Authority (CTA) as a bus operator. While between work shifts in September 2020, Scruggs was shot by a paintball gun in the thigh and stomach by an individual in a passing car. Scruggs fell to the ground and suffered injuries, including injuries to her left shoulder that required two surgeries. Scruggs submitted an injury-on-duty claim to the CTA’s third-party administrator on the same date, which was denied without explanation.

In March 2021, after Scruggs had been absent from duty since suffering the September 2020 injury, the CTA directed Scruggs to report to work to explain her absence. Scruggs reported and communicated that she intended to request an accommodation, which was submitted in April 2021. The request included medical documentation stating that Scruggs required shoulder surgery (the date of the surgery was not specified), that she could not drive, and that she would be limited in her ability to drive for eight to twelve months following surgery. The CTA denied the request, stating that Scruggs could not perform the essential functions of her position and that the accommodation review committee was unaware of an open position at the CTA for which she was qualified and eligible to fill.

Evidence was submitted to the Court reflecting a CTA program that provides temporary reassignments for certain employees with injuries arising out of and in the course of their CTA employment. The program requires the employee’s medical prognosis to provide for a full recovery within six months, with placements in temporary positions being subject to the CTA’s business needs and lasting a maximum of 90 days. The CTA argued Scruggs was ineligible for participation in this program because the CTA’s third-party administrator had denied her injury-on-duty claim.

In April 2022, a physician cleared Scruggs to return to work, but prohibited her from driving a commercial vehicle, using her arm above her shoulder, repetitive pulling or pushing, and lifting over five pounds. At a subsequent meeting, Scruggs was told by her supervisor that she would not be allowed to return to work unless she could return on a full-time basis driving a bus. In May 2022, Scruggs was terminated from employment for being absent from work since September 2020 without an approved leave. Scruggs then filed a lawsuit against the CTA, alleging disparate treatment and failure to accommodate under the ADA.

Denial of CTA’s Motion for Summary Judgment

In denying the CTA’s motion for summary judgment on both Scruggs’ disparate treatment and failure-to-accommodate claims, the Court initially noted that the parties did not dispute whether Scruggs had a disability under the ADA but instead disputed whether Scruggs was a “qualified individual” within the meaning of the ADA. Under the ADA, a “qualified individual” is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. §12111(8). The Court confirmed that even if a plaintiff cannot perform the essential functions of their position, the plaintiff is still a “qualified individual” if they establish that they were qualified to perform the essential functions of another vacant position that they desire.

According to the Court, it was uncontested that Scruggs possessed the basic qualifications for her position. The CTA instead argued that Scruggs was not a “qualified individual” because she did not report to work for over 600 days due to her injury. However, the Court noted that the CTA’s argument “sidesteps the relevant inquiry, which is whether, on the date of her termination, Scruggs could come to work and perform the essential functions of her position or another vacant position.” 2026 WL 63480 at *4. Prior to her termination in May 2022, Scruggs was cleared to return to work with restrictions and was not able to perform at least one essential function of her job as a bus operator. Despite this, the Court still noted that a reasonable jury could find that Scruggs could have performed the essential functions of a different light-duty position offered to other employees under the CTA’s temporary reassignment program.

The Court also concluded that a reasonable jury could find that Scruggs’ disability was a reason for her termination, highlighting the statement made to Scruggs by her supervisor that unless she returned full-time driving a bus, the CTA would not allow her to return to work. Scruggs’ temporary disability prevented her from driving a commercial vehicle, and the supervisor threatened to terminate her employment for that reason. While the Court stated that it was “by no means indisputable” that Scruggs was terminated due to her disability, Scruggs presented enough evidence to create a genuine factual dispute as to whether her disability was a reason for the discharge, entitling Scruggs to a trial on the disparate treatment claim. 2026 WL 63480 at *5.

Similarly, the Court concluded that with respect to the failure-to-accommodate claim, there is a genuine factual dispute as to whether the CTA failed to reasonably accommodate Scruggs’ disability. According to the Court, Scruggs requested a “textbook reasonable accommodation: reassignment to a vacant position.” 2026 WL 63480 at *6. Per the Court, a reasonable jury could find that Scruggs’ request for a temporary light-duty position was reasonable given the CTA has thousands of employees. The CTA failed to identify any evidence that demonstrated a lack of vacant positions for which Scruggs was qualified, nor did it argue that it would have faced an undue hardship by assigning Scruggs to a temporary light-duty position. As such, the Court held that Scruggs was also entitled to a trial on her failure-to-accommodate claim.

Takeaway

The Court’s decision in denying the CTA’s motion for summary judgment confirms that even though an employee may not be able to perform the essential functions of their position due to a disability, this is not necessarily the end of the inquiry required under the ADA. Instead, employers should closely consider whether there are any alternate and vacant positions that the employee is qualified to perform. Failing to consider reassignment to a vacant position could create exposure to disability discrimination and failure-to-accommodate claims under the ADA.

For more information about employment and labor law, see EMPLOYMENT DISCRIMINATION (IICLE^®, 2026). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Thomas C. Garretson, Robbins Schwartz, Chicago

Thomas C. Garretson is a partner at Robbins Schwartz in Chicago, focusing on labor and employment law. He counsels public and private sector employers on workplace issues, including investigations, disciplinary actions, and collective bargaining. Tom previously worked as a labor relations attorney for the Cook County Health System and with the U.S. Equal Employment Opportunity Commission. He holds a J.D. from Chicago-Kent College of Law and a B.A. with honors from Michigan State University. Tom is admitted to practice in Illinois and is a member of the Chicago Bar Association.

In O'Donnell v. City of Chicago, 163 F.4th 411 (7th Cir. 2025), the U.S. Court of Appeals for the Seventh Circuit held that the City of Chicago’s vehicle forfeiture practices pursuant to its municipal traffic code do not amount to “takings” under the Fifth Amendment’s Takings Clause and the Illinois Constitution, affirming the decision of the U.S. District Court for the Northern District of Illinois.

Facts

The Municipal Code of the City of Chicago requires vehicle owners issued tickets by the city’s police department to either pay the ticket or contest the violation within a specified time frame. 163 F.4th at 413. Vehicle owners who fail to pay the fine or appeal the violation are then issued a notice of final determination of liability by the city. If a vehicle owner accrues a certain number of final determinations of liability, all vehicles registered to that owner become eligible for immobilization on 21 days’ notice. If a vehicle is immobilized, the vehicle owner has 24 hours to comply with the city ordinance and pay the amount due, or the city can tow and impound the vehicle. Id. Following impoundment, the city sends another notice to the vehicle owner, who has 21 days to pay the fine and claim the vehicle. If the vehicle goes unclaimed for 21 days, the ordinance authorizes the city to sell or dispose of it — which does not absolve the vehicle owner from any accrued fines or liabilities under the ordinance. Id.

Michael Goree and Ryan O’Donnell (plaintiffs) each had their vehicles disposed of by the city without compensation. They sued the city and URT United Road Towing, Inc., a private city towing contractor (defendants), alleging a violation of the Takings Clause. The plaintiffs also alleged a Monell claim under 42 U.S.C. §1983, as well as various state law claims. The defendants moved to have the case dismissed for the plaintiff’s failure to state a viable cause of action. The district court granted the defendants’ motion to dismiss, finding that the forfeiture scheme established by the city’s ordinance was not an unconstitutional taking. Id.

Appeal

The Seventh Circuit reviewed the plaintiffs’ state and federal takings claims concurrently. Under the Fifth Amendment, as applied to the states through the Fourteenth Amendment, private property may not be taken for public use without just compensation. 163 F.4th at 413 – 414. Citing Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 161 L.Ed.2d 876, 125 S.Ct. 2074, 2080 (2005), the appellate court noted that to establish a violation of the Takings Clause, the plaintiffs must demonstrate that (a) the government took their property, either through a physical taking or through unduly onerous regulations; (b) the taking was for a public use or purpose; and (c) the government has not paid just compensation. 163 F.4th at 414.

Addressing the claim on its merits, the appellate court relied on its recent decision in Hadley v. City of South Bend, 154 F.4th 549, 554 (7th Cir. 2025), to distinguish between takings exercised through eminent domain and takings exercised through a state’s police power. As established in Hadley, the appellate court recognized that while not all police powers automatically preclude a takings claim, the exercise of law enforcement authority was a “classic example” of a police power that does foreclose takings claims. 163 F.4th at 414, citing Hadley, supra, 154 F.4th at 556.

The appellate court identified the city’s forfeiture ordinance as a clear mechanism to enforce its traffic code. The court considered immobilizing, towing, impounding, and disposing of nonresponsive owners’ vehicles a reasonable means of punishment for those who had otherwise evaded consequence, as “the threat of impoundment and disposal forces [the vehicle owners] to internalize the consequences of their behavior and, accordingly, deters those violations in the first place.” 163 F.4th at 414.

The appellate court was unpersuaded the plaintiffs’ characterization of the city’s forfeiture ordinance as a “debt-collection mechanism” that punishes the inability to pay fines, noting the mere fact that the practice raised revenue for the city did not overshadow its primary objective of compliance with traffic laws. 163 F.4th at 414 – 415. Moreover, because the plaintiffs raised a facial challenge to the ordinance, the appellate court rejected the plaintiffs’ further arguments of hypothetical circumstances where specific factual scenarios may warrant a taking. The appellate court also shot down the plaintiffs’ attempts to distinguish the case from Bennis v. Michigan, 516 U.S. 442, 134 L.Ed.2d 68, 116 S.Ct. 994, 1001 (1996), on the basis that Bennis authorizes the forfeiture of vehicles when there is criminal activity, whereas the Chicago forfeiture ordinance addresses financial delinquency. 163 F.4th at 415.

Finally, the plaintiffs challenged the city’s failure to use the proceeds of the vehicle sales to satisfy the vehicle owner’s outstanding debts. The appellate court did not buy the plaintiffs’ characterization of the practice as an unfair, excessive “tax,” instead finding that a city imposing a fine as an exercise of its police powers was an enforcement mechanism subject to different limitations. Id.

Accordingly, the appellate court affirmed the district court’s dismissal of the plaintiffs’ takings claims and held that the city “lawfully impounded and disposed of the plaintiffs’ vehicles.” Id. The court tossed the plaintiffs’ other challenges as well, as they were inextricably entwined with the success of the takings claims.

For more information about government law, see SUNSHINE LAWS — 2024 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Laura M. Julien, Mickey, Wilson, Weiler, Renzi, Lenert & Julien, P.C., Sugar Grove

Laura M. Julien is a partner with Mickey, Wilson, Weiler, Renzi, Lenert & Julien, P.C. in Sugar Grove, Illinois, where she concentrates her practice in municipal law, school law, corporate law, and real estate matters. She is a member of the Illinois State Bar Association, Kane County Bar Association, State Bar of Wisconsin, National Council of School Attorneys, Illinois Local Government Lawyers Association, and Illinois Council of School Attorneys. She is also a recurrent presenter with the National Business Institute. Laura earned her undergraduate, with honors, from the University of Wisconsin and her J.D. degree from the University of Notre Dame Law School.

It’s time for another landlord-dog bite case, this time out of the Second District in Lucchetti v. Hall, 2026 IL App (2d) 250128-U. The dog, Maximus, reminds us of the difficulty in imposing landlord liability for a tenant’s dog’s violent acts.

Facts

Allison Hall rented out the basement of her two-story townhouse to Stacy Wagner. 2026 IL App (2d) 250128-U at ¶¶4, 7. While Hall resided on the upper level with her children and pets, Wagner resided downstairs along with Wagner’s pitbull, Maximus. 2026 IL App (2d) 250128-U at ¶7. Maximus was confined to the area rented by Wagner by a locking baby gate that Hall had installed at the bottom of the stairs to the lower level. 2026 IL App (2d) 250128-U at ¶8. Hall had purchased the baby gate because she had a young daughter and cats. Hall also did not want Maximus to have free rein of the house because she worked from home. Id. In other words, Hall had wanted to keep Maximus in Wagner’s “apartment.” Id. The only interior access to the townhouse’s garage was through the lower level, and Hall would have to walk through part of Wagner’s apartment to get from the garage to the stairs and her space on the upper floor. 2026 IL App (2d) 250128-U at ¶7.

Ashlyn Lucchetti was a long-standing friend of Wagner’s and visited her often. 2026 IL App (2d) 250128-U at ¶¶4 – 5. She met Hall as a result of her visits to Wagner, and her children became playmates of Hall’s daughter. Id. One day, when Hall and her daughter were not at home, Lucchetti slipped and fell on a puddle and her son, Brayden, ran to help her. 2026 IL App (2d) 250128-U at ¶8. At that point, Maximus ran to Brayden and latched onto Brayden’s arm. Id. After freeing her son, Maximus then attacked Lucchetti, biting her fingers and neck, and then attacked Wagner. Id. When the police arrived, they shot and killed Maximus. Id.

Lucchetti sued both Hall and Wagner on claims of common-law negligence (based on principles of premises liability) and §16 of the Animal Control Act, 510 ILCS 5/1, et seq. 2026 IL App (2d) 250128-U at ¶2. The trial court entered summary judgment in Hall’s favor, and Lucchetti timely appealed. 2026 IL App (2d) 250128-U at ¶10.

Appellate Court

The appellate court, in its de novo review of the lower court’s decision, affirmed granting summary judgment in Hall’s favor. 2026 IL App (2d) 250128-U at ¶¶12, 28.

With respect to Lucchetti’s claim under the Animal Control Act, §16 holds a dog owner liable in part for the dog’s unprovoked attack on someone that results in injury. 2026 IL App (2d) 250128-U at ¶15. The Act defines owner as “any person having a right of property in an animal, or who keeps or harbors an animal, or who has it in his care, or acts as its custodian, or who knowingly permits a dog to remain on any premises occupied by him or her.” 510 ILCS 5/16.

Lucchetti did not contend that Hall had any property interest in Maximus. 2026 IL App (2d) 250128-U at ¶17. Instead, Lucchetti argued that Hall was Maximus’ owner because she allowed the dog to remain on the premises and she kept and harbored Maximus by “installing a gate to control his movements, occasionally walking him, letting him outside, and ‘otherwise ‘coexist[ing]’ with him.” Id. It was undisputed that Maximus was confined to the lower-level area Wagner rented from Hall, not the area where Hall resided or occupied. 2026 IL App (2d) 250128-U at ¶18. Although Hall accessed the garage through the lower level and sometimes visited Wagner there, she neither “lived” or “stayed” in that part of the premises. Id. Accordingly, the appellate court found that Hall did not qualify as Maximus’ owner and, therefore, could not be liable under §16 of the Act.

Similarly, the appellate court rejected Lucchetti’s argument that Hall “kept” or “harbored” Maximus, which focused on Hall’s installation of the baby gate to confine Maximus to the lower level, thereby controlling the dog. 2026 IL App (2d) 250128-U at ¶¶19 – 23. The appellate court opined that this proved the opposite — Hall had installed the gate to keep Maximus out of the areas she occupied, akin to a homeowner building a fence to keep a neighbor’s pet or stray animals off the homeowner’s property. 2026 IL App (2d) 250128-U at ¶22. To hold Hall was an owner under these circumstances would lead to an absurd interpretation of the Act’s language and was not supported by the evidentiary record. 2026 IL App (2d) 250128-U at ¶22.

Likewise, there was no evidence that Hall harbored Maximus, as she did not provide food or shelter for him, had only walked him on a few occasions, and the level of interaction was minimal. 2026 IL App (2d) 250128-U at ¶23. “[A] landlord-tenant relationship, without more, is insufficient to establish ownership under the Act.” Id., citing Howle v. Aqua Illinois, Inc., 2012 IL App (4th) 120207, ¶50, 978 N.E.2d 1132, 365 Ill.Dec. 629. Thus, simply being Wagner’s landlord, without more, was insufficient to hold Hall liable for Wagner’s dog under the Act.

Lucchetti’s common-law negligence claims also failed, as they were based on the same “ownership” arguments put forth with respect to the Act. 2026 IL App (2d) 250128-U at ¶¶24 – 25. Additionally, Lucchetti and Brayden were Wagner’s invitees, not Hall’s, and she did not retain control over the area occupied by Wagner. “[A] landlord owes no duty to a tenant’s invitee to prevent injuries proximately caused by an animal kept by the tenant on the leased premises if the landlord does not retain control over the area where the injury occurred.” Id., citing Klitzka ex rel. Teutonico v. Hellios, 348 Ill.App.3d 594, 810 N.E.2d 252, 255, 284 Ill.Dec. 599 (2d Dist. 2004). As such, she could not be held liable for Maximus’ actions under a negligence theory and the lower court’s summary judgment was appropriate.

For more information about real estate law, see MORTGAGE FORECLOSURE: CORRESPONDING ISSUES (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Genevieve M. Daniels, Genevieve M. Daniels, P.C.

Genevieve M. Daniels, a versatile litigator and transactional attorney, specializes in commercial, employment, and real estate law. She offers comprehensive legal services, including real estate transactions, employment law compliance, and dispute resolution. Genevieve's unique experience allows her to provide clients with strategic insights and effective advocacy. She is also an active presenter, arts supporter, and passionate about Persian cooking and adventure travel.

In a January 27, 2026, Rule 23 order, the Illinois Appellate Court, Second District, Workers’ Compensation Commission Division, addressed the compensability of injuries sustained by a traveling employee who was assaulted by third parties while making deliveries. Avila v. Illinois Workers Compensation Commission, 2026 IL App (2d) 250093WC-U. The court reversed the Commission’s denial of benefits and reinstated the arbitrator’s compensability findings, holding that the Commission’s application of the aggressor defense and its causation analysis were against the manifest weight of the evidence. The court further remanded the case for the Commission to consider whether penalties and attorneys’ fees should be imposed.

Although the decision is nonprecedential, it provides a detailed illustration of how courts analyze street-risk exposures, the aggressor defense, and intervening acts in the context of traveling employees.

Factual Background

Jose Avila worked as a delivery driver for Amazon. On August 1, 2023, while performing his delivery route in Aurora, Avila was driving his truck on a residential street when a black SUV abruptly cut in front of him at close range. The maneuver was sufficiently sharp that Avila had to brake suddenly. Avila testified that the SUV nearly struck a woman who was unloading groceries on the side of the road.

After the near-collision, Avila honked his horn and gestured toward the driver of the SUV. He then stopped his delivery truck and momentarily remained in the area. According to Avila, his purpose in stopping was not to pursue a confrontation with the driver of the SUV but to check on the woman who had nearly been struck and to ensure that she was not injured. The dash camera footage showed Avila stopping his vehicle while a pedestrian remained in the parkway near the truck.

While Avila was stopped, individuals associated with the SUV began yelling at him. The driver of the SUV exited his vehicle and walked toward Avila. Avila testified that he felt threatened because he was still seated and buckled in his truck with the door open, and the approaching individual was on the side of the open door. Avila unbuckled his seat belt and exited the truck. The video footage showed Avila and the SUV driver meeting briefly near the truck, at which point the driver of the SUV punched Avila. Others joined in the scuffle. The physical altercation was brief and partially out of camera view. The woman who was almost struck intervened and calmed the initial confrontation.

After the initial confrontation, Avila returned to his truck and drove away. As he was leaving, he yelled words and made nonverbal gestures to the individuals who had attacked him. Avila stated that he did this out of frustration, but not in a threatening manner.

The dash camera footage showed him continuing along his delivery route through a residential neighborhood for several minutes. Approximately four to five minutes later, and two to three blocks away from the location of the initial encounter, Avila parked his truck to make another delivery. As he walked toward the delivery location, a maroon sedan pulled up near the truck. Several individuals exited the vehicle, including the driver of the SUV from the earlier incident. Avila was attacked from behind, knocked to the ground, and beaten and kicked by multiple assailants. During the assault, one of the attackers took a chain from Avila’s neck.

Avila reentered his truck after the second assault. Dash camera footage showed visible blood on his face and head. He appeared to photograph the fleeing assailants and then stumbled near the passenger side of the vehicle. Emergency medical services transported him to the hospital, where he was treated for facial fractures, dental injuries, head trauma, and related symptoms. He later received follow-up dental treatment and medical care for headaches and psychological symptoms related to the assault.

Procedural History

The case proceeded to arbitration. The employer argued that Avila was the aggressor and his recovery was therefore barred. The arbitrator disagreed and found that Avila’s injuries arose out of and in the course of his employment as a traveling employee and were causally related to the assaults. The arbitrator concluded that the risks of street encounters were incidental to his job duties and that, in any event, the second assault occurred while he was actively making a delivery. The arbitrator awarded temporary total disability benefits, medical benefits, prospective care, penalties, and attorneys’ fees.

On review, the Commission unanimously reversed. The Commission found that Avila was the aggressor in the first incident based on his gestures, conduct, and decision to exit his truck. The Commission further concluded that the second assault would not have occurred but for Avila’s conduct during the first encounter, thereby negating the causal connection to employment.

The circuit court reversed the Commission, finding that the aggressor determination as to the first incident, and the conclusion that the second assault was merely a continuation of the first, were against the manifest weight of the evidence. The employer appealed to the appellate court.

The Appellate Court’s Analysis

The appellate court affirmed the circuit court’s decision. The court began by reaffirming that an injury must arise out of and in the course of employment in order to be compensable. The “in the course of” element concerns the time, place, and circumstances of the injury, while the “arising out of” element requires a causal connection between the employment and the injury. The court noted that injuries sustained by traveling employees are analyzed under more liberal standards because such employees are exposed to the risks of the street as an inherent aspect of their work.

In the Course of Employment

With respect to the “in the course of” requirement, the court had little difficulty concluding that Avila satisfied this element. At the time of the second assault, Avila had resumed his delivery route and was actively engaged in making a delivery. The evidence showed that he had disengaged from the earlier confrontation, driven away, and returned to his work duties. Accordingly, the court found that Avila was within the time and space boundaries of his employment when the injury occurred.

Arising Out of Employment

The court then turned to the “arising out of” element. The Commission had concluded that Avila’s injuries did not arise out of his employment because the assaults stemmed from a personal dispute initiated by his conduct during the traffic encounter.

The appellate court rejected that characterization. It emphasized that Avila’s job as a delivery driver required him to travel public roadways and interact with traffic and members of the public. The risks inherent in street travel, including the possibility of confrontations with other motorists, are risks to which Avila was exposed by virtue of his employment. The court cited established precedent recognizing that assaults on traveling employees by third parties may be compensable when the employment places the employee in a position of increased exposure to such risks.

The Aggressor Defense

The appellate court devoted significant attention to the Commission’s application of the aggressor defense. The court reiterated that an employee who becomes the aggressor in a physical altercation may be found to have departed from the course of employment, thereby breaking the causal connection between employment and injury.

However, the court emphasized that aggressor status is a fact-intensive determination that must be evaluated based on the totality of the circumstances. The mere fact that an employee exchanges words, gestures angrily, or exits a vehicle does not, by itself, establish that the employee became the aggressor in a subsequent physical confrontation.

Reviewing the dash camera footage and testimony, the court found that the Commission’s conclusion that Avila was the aggressor in the first encounter was against the manifest weight of the evidence. The video did not show Avila initiating physical violence, and the evidence showed that the other driver approached Avila’s truck and struck the first blow. While Avila’s conduct may have contributed to a tense encounter, the court concluded that the record did not support a finding that he escalated the encounter into a physical fight so as to forfeit the protections of the Workers’ Compensation Act (Compensation Act), 820 ILCS 305/1, et seq.

Causation and the Second Assault

The court further rejected the Commission’s conclusion that the second assault was merely a continuation of the first encounter and therefore remained personal in nature. The appellate court emphasized that there was a meaningful temporal and spatial break between the two incidents. Avila had left the scene of the initial confrontation, driven several blocks, and resumed performing his delivery duties. The second attack occurred at a different location, several minutes later, and involved assailants who pursued Avila and initiated a new, unprovoked assault while he was making a delivery.

In addressing causation, the court explained that the Compensation Act does not require that employment be the sole cause of an injury. It is sufficient that the employment be a contributing cause. The court rejected the Commission’s “but for” reasoning that the second assault would not have occurred but for Avila’s earlier conduct. The court noted that such a broad conception of causation would improperly transform many workplace injuries into noncompensable events whenever a claimant’s prior conduct could be traced as part of the chain of events. Instead, the proper inquiry is whether the injury can fairly be traced to a risk of employment, as opposed to a purely personal risk. Here, Avila’s exposure to public street risks as a delivery driver, combined with the fact that he was engaged in work duties at the time of the second assault, supported compensability.

Standard of Review

Finally, the appellate court underscored the standard of review applicable to Commission findings. While the Commission’s factual determinations are entitled to deference, they will be reversed when an opposite conclusion is clearly apparent from the record. The court concluded that the Commission’s findings regarding aggressor status and causation were contrary to the clear weight of the evidence presented.

This decision highlights the importance of carefully separating multiple incidents when analyzing causation. When an employee disengages from an initial confrontation and later sustains injuries in a separate encounter, the later event may be deemed an independent intervening act rather than a continuation of the earlier dispute. Practitioners should analyze temporal separation, geographic separation, and whether the claimant had resumed job duties at the time of injury.

For employers and carriers, the aggressor defense remains viable, but it requires a close examination of the totality of the circumstances. Evidence of verbal provocation or angry gestures may be insufficient, standing alone, to establish that a claimant was the aggressor when the other party initiates physical violence. Video evidence should be reviewed carefully, and the absence of audio may limit the ability to draw firm conclusions about verbal threats or provocations.

For claimants, the case underscores the significance of the traveling employee doctrine and the street-risk doctrine. Employees whose jobs place them in public settings are exposed to risks that may be deemed incidental to employment, including assaults by third parties. Demonstrating that the employee was engaged in job duties at the time of injury remains central to compensability.

For more information about workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (IICLE^®, 2023). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Jigar S. Desai

Jigar S. Desai is a Partner with Rusin Law Ltd, where he concentrates his practice in workers’ compensation and employment law. Recognized for his outstanding contributions to the legal field, Desai has been named a Rising Star by Super Lawyers from 2016 to 2018 and a Law Bulletin Emerging Lawyer from 2016 to 2019. He is a member of the Board of Directors at Rusin Law Ltd, and a member of the Chicago and Illinois Bar Associations. Desai received his B.A. from the University of Iowa and his J.D. from Chicago-Kent College of Law. While at Chicago-Kent, he was honored on the Dean’s Honor List for five out of six semesters and received the Honorable Edmund W. Burke Award for Excellence in Forensic Oratory as a Senior Associate of the Moot Court Honor Society.

Our February FLASHPOINTS Author Spotlight recognizes Joseph L. Kish, who most recently served as General Editor and contributing author of BUSINESS AND COMMERCIAL LTIGATION (IICLE®, 2026).

Kish noted that he “first became involved with IICLE as seminar attendee, and then a user of its many practice guides,” and “was favorably impressed at the quality of the presentations and publications.” Like those contributors before him, he also wanted to “share [his] knowledge and experience with others at the high level provided by IICLE.” In his words: “In addition to presenting for IICLE on topics involving intellectual property, employment, law, and trade secrets, I jumped at the opportunity when I was asked to become the general editor for the Business and Commercial Litigation handbook. Amazingly, acting as the general editor (in addition to authoring the expert witness chapter) continually hones my skills in a way that I did not anticipate.”

Joseph L. Kish is a Senior Shareholder at Segal McCambridge Singer & Mahoney in Chicago, where he devotes a significant portion of his practice to complex commercial litigation and technology, employment law, and intellectual property law matters. Kish has extensive trial and appellate experience in federal and state courts, as well as alternative dispute resolution experience involving mediation and arbitration. Kish has been named an Illinois Super Lawyer in litigation. He is a faculty member of the National Institute for Trial Advocacy and is licensed in Illinois and California. He received his BGS from the University of Michigan, where he was an Associate Editor of the Michigan Journal of Political Science, and his JD from DePaul University College of Law, where he was a Member of the DePaul Law Review and President of the Moot Court Society.