Chicago Accident Law Blog

Illinois motorcycle accident attorneys should always be creative when analyzing the potential areas of recovery for their clients. According to the U.S. Dept. of Transportation (DOT) there were 7.1 million motorcycles on the road in the U.S. in 2007. Sales of all two wheelers in the U.S. was 1,087,000 in 2008.

Motorcycles are by their very nature far less crashworthy than closed vehicles and crashes frequently result in catastrophic injuries or death. They are also less visible to other vehicles and pedestrians and less stable than four wheel vehicles. Motorcyclists and their passengers are more vulnerable to the hazards of weather and road conditions than drivers in closed vehicles. According to the DOT 5,154 people died in motorcycle crashes in 2007 and motorcycles are 35 times more likely than passenger car occupants to die in crashes per vehicle mile driven in 2006, and 8 times more likely to be injured according to the DOT'S National Highway Traffic Safety Administration (NHTSA).

In a recent case I successfully represented the estate of an 18 year old male in a wrongful death lawsuit alleging negligent entrustment against the decedent's friend who let him ride his "supersport" motorcycle also known as a "pocket rocket" despite the decedent's lack of experience and licensure to operate a motorcycle. Determining whether there may be a potential claim for negligent entrustment require a careful reading of the Illinois Supreme Court's opinion in Zedella v. Gibson, 165 Ill. 2d 181, 186, 650 N.E. 2d 1000, 1003 (1995).

In Zedella, the Illinois Supreme Court adopted Section 308 of the Restatement of Torts (Second) which provides:

It is negligence to permit a third person to use a thing or engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such manner as to create an unreasonable risk of harm to others.

The testimony indicated that these recent high school graduates had never operated a motorcycle before, much less a motorcycle that was described in testimony as the fastest production motorcycle available.

Section 390 of the Restatement of Torts (Second) was adopted in Illinois by the court in Small v. St. Francis Hospital, 220 Ill. App. 3d 537, 542, 581 N.E. 2d 154, 158 (1991), and it states:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

These "pocket rockets" should only be used by or lent to motorcyclists with a high degree of training and who possess all necessary licenses.

Continue reading "Illinois Motorcycle Accident Attorneys Need Creativity" »

As an Illinois lawyer representing victims of childhood sexual abuse I was pleased with the recent ruling in Doe v. Hinsdale Township High School District, 388 Ill. App. 3d 995, 905 N.E. 2d 343 (2009). In Doe, a female high school student brought action for personal injuries based upon childhood sexual abuse against school, principal, and superintendent. The trial judge in Du Page county dismissed student's claims against school, principal and superintendent based on the Illinois Tort Immunity Act, 745 ILCS 10/8-101, ruling that a suit against the school or any of its employees must be brought within the one year statute of limitations for suits against governmental entities or their employees. The issue on appeal was whether the one year statute of limitations for governmental bodies and their employees governed this action or whether the five year statute of limitations for Childhood Sexual Abuse, 735 ILCS 5/13-202.2 applied.

The Appellate Court in Doe, stated:

In resolving which statute apples, we note that the cardinal rule of statutory construction is to ascertain and give effect to the legislature's intent.

905 N.E. 2d at 347. The reviewing court concluded that:

In this case, section 13-202.2(b) of the Code (735 ILCS 5/13-202.2(b) begins with the language "notwithstanding any other provision of law." In using this language, the legislature clearly intended section 13-202.2 of the Code to control over other provisions of law, such as section 8-101 of the Tort Immunity Act, which would otherwise bar the plaintiff's action.

905 N.E. 2d at 348.

This ruling is a clear victory for victim's of childhood sexual abuse in that it does not limit to one year the time frame a victim can sue a governmental employee or governmental entity regarding any duties they may have to children under their care and supervision for sexual abuse by others they employ or control. This decision while respecting the statutory language, also furthers the legislative intent in allowing children adequate time to assess the damage done to them by the pedophile. From a practical standpoint it is frequently only the employer of the pedophile who can pay damages to the sexually abused victim. Further, it provides a clear incentive for schools or other organizations that deal with children on a regular basis to have a clear set of guidelines for what is and is not appropriate relationships between children and their teachers, coaches or others who interact with them on a regular basis. The bottom line is that this decision will insure that school districts, park districts, and others dealing with children will have to be vigilant regarding the screening and monitoring of the individuals who came into contact with the children that have been entrusted to their care. This is a good thing!

Illinois product liability attorneys should be aware that yesterday the Yamaha Motor Corp. recalled about 120,000 utility terrain vehicles (UTVs), namely the Rhino models 450, 660 and 700 models. The four wheel side by side Rhino manufactured by Yamaha has become one of the most popular UTVs sold in the U.S. The design flaws that prompted the recall include a top heavy design resulting in a high center of gravity and a track width that is too narrow.

The United States Consumer Product Safety Commission (CPSC), has announced a free repair program to address these issues. Of the more than 50 incidents investigated by the CPSC more than two thirds involved rollovers, many of which involve turns at relatively low speeds on level terrain.

Utility Terrain Vehicles have fallen within a regulatory crevice. These vehicles were introduced to the market and have been sold to consumers without having to meet government safety and performance standards. It is critical that federal and/or state state safety agencies act to protect consumers from the growing number of fatalities and severe injuries

Consumers who own any of the models involved should return the vehicle to their Yamaha dealer for free repairs. Repairs include installation of a spacer on the rear wheels as well as removal of the rear anti-sway bar to help reduce the the chance of rollover and to improve vehicle handling.

Consumers or anyone who have been injured or died in a rollover should immediately consult with a product liability attorney to ensure preservation of the vehicle and to begin appropriate engineering analysis. Should you wish you can call our office toll free 877-494-1309 for a prompt review of your case without charge or obligation

An Illinois truck accident involving violations of Federal Motor Carrier Safety Regulations where I represented the estates of a 77 year old man and his 73 year old wife settled last week for $950,000. On March 7, 2007, at 3:45 AM the 77 year old driver hit the side of the semi tractor trailer that was backing onto a rural highway In Will County. Both the driver and his wife were killed instantly!

The central issue in the case was why the 77 year old driver failed to detect, identify, and respond prior to slamming into the side of the trailer as it was backing across the rural highway. Attorneys for the trucking company and its driver retained the services of an ophthalmologist, human factors expert, and an certified accident reconstruction specialist. The 77 year old driver had corrective eye surgery a few months before this fatal accident.

Essentially defendants' experts opined that the 77 year old driver: 1) should not have been driving at night as his nighttime vision was limited; 2) since trailer was equipped with retroreflective tape and side marker lights a reasonably alert driver should have been able to detect, identify, and respond to the trailer by slowing to avoid a collision.

Expert witnesses I retained on behalf of the family of the victims included a transportation safety consultant (trucking practices expert) and a certified accident reconstruction specialist. Essentially plaintiffs' experts opined: 1) truck driver violated the Federal Motor Carrier Safety Regulations, sec. 392.2, which holds that a violation of the Illinois Vehicle Code is also a violation of the FMCSR. Failure to yield right of way while backing is also a violation of FMCSR; 2) truck driver should have known that his maneuver of backing his truck across a highway violated the reasonable expectation of an average motorist; 3) this was a preventable accident- use of flairs or a spotter would have prevented this tragedy. Violations of FMCSR are essential in holding trucking companies and their drivers responsible for the carnage they cause on our highways and every effort must be undertaken to identify and prove these violations. Drivers logs, GPS readings, fuel receipts, and toll receipts are some of the discovery that must be sought and obtained to secure favorable results for the victims.

Violations of the Illinois Vehicle Code is also a violation of FMCSR and was a key in securing a favorable result in this case. The decedents were survived by three adult children who rarely saw the decedents and who lived in Alaska, Tennessee, and New York. The case was settled before Judge Ronald Guzman in the United States District Court for the Northern District of Illinois.

Illinois sexual abuse victims through their lawyers won another victory in the Appellate Court regarding application of the statute of limitaions. In M.K. v. L.C. et al, 2009 WL 103616, released January 9-09, the Third District Appellate Court chose to follow the holding of an opinion released last year, Doe v. Diocese of Dallas, 379 Ill. App. 3d 782, 885 N.E. 2d 376 (2008), where the Fifth District held that the 2003 amendment to the Childhood Sexual Abuse Statute of Limitations, 735 ILCS 5/13-202.2(b), was to be applied retroactively. Essentially this means that even if the statute of repose or limitations had expired before the 2003 amendment, the amendment controls, and the action may be mantained.

While this case and the Doe case will be reviewed by the Illinois Supreme Court, I am personally hopeful that these two thoughtful opinions by our Appellate Court will provide the framework and legal analysis that will lead the Justices to conclude that retroactive application of 735 ILCS 5/13-202.2(b), is the law of the State of Illinois. In an earlier blog, March 21-08, I conducted a detailed analysis of the "legislative Intent" and "vested rights" appraoch to applying statutes of repose and limitations retroactively. The bottom line is that our legislature has passed a statute that allows childhood sexual abuse victims longer times to file their suits because the damage from the sexual abuse does not always manifest itself within two years of reaching majority, this legislative determination should not be overruled by the judicial branch without a compelling right being violated. I see none, and so do two Appellate Courts in Illinois

Illinois product liability lawyers are encouraged by the verdict returned November 17, 2008, in the Circuit Court of Cook County awarding $16.6 million in damages to the estate of a 38 year old Cicero woman who died of a fatal dose of the powerful narcotic fentanyl. The suit alleged that the defendants, New Jersy based Janssen Pharmaceutica Inc. and California based ALZA Corp. knew about problems with the Duragesic patch that allowed it to leak fentanyl in doses large enough to kill pateints. Both defendants are subsidiaries of Johnson & Johnson.

The defendants maintained that the decendent death was caused by "polypharmacy"- a mix of potentially incompatible medications. The jury disagreed. The verdict is the fourth trial loss since 2006. FDA had issued prior warnings about improper use of fentanyl patrches.

Post trial motions and a possible appeal are down the road, but multiple juries have now concluded that some of these Duragesic (fentanyl) patches are unreasonably dangerous. Unfortunately, federal preemption (see blog of Oct. 31, 08) may yet provide a opportunity for defendants to escape liability. Civil jury verdicts are pointing the way for FDA action.

Product liability lawsuit preemption by federal regulation is scheduled for oral argument before the U.S. Supreme Court on November 3, 2008. In 2000 a state court jury in Vermont awarded Diana Levine $6.5 million in a product liability lawsuit against Wyeth Pharmaceuticals. The outcome of Levine's case will have major ramifications for drug makers and consumers. The U.S. Supreme Court is expected to decide whether people can sue under state law or are pre-empted from doing so- for harm caused by a drug approved by the federal Food and Drug Administration.

In 2000 Diana Levine was prescribed an "IV push" of Phenergan to combat nausea brought upon by migraine headaches and pain killers she was taking. Unfortunately the "IV push" of Phenergan punctured an artery, causing her right arm to become gangrenous. After several weeks her right arm was amputated.

Levine sued Wyeth contending that the label of Phenergan should have more clearly warned about the danger of giving the "IV push." Combating an upset stomach with a method that can end up causing limb loss is an "unfathomable benefit-risk ratio" according to Diana Levine.

Wyeth maintains that when a drug like Phenergan has a federally approved label its manufacturer is immune from lawsuits in state court. Levine's position is that federaal regulation should represent the floor, not the ceiling, of a drug company's responsibility.

The Supreme Court of Vermont which affirmed the jury's verdict held that negligence and failure to warn claims on the labelling of an anti-nausea drug, "did not conflict with the FDA's labelling requirements...because Wyeth could have warned against the danger without prior FDA approval and because federal labelling regulations create a floor not a ceiling for state regulation." Levine v.Wyeth, 944 A. 2d 179 (Vt. 2006), cert. granted 128 S. Ct. 1118.

It is ironic that the Bush administration which has successfully pursued an agenda against federal regulatory oversight, will have its judicial appointees leading the way to eliminate pharmaceutical company liability utilizing federal regulations.

As an Illinois attorney representing victims of sexual abuse I was very encouraged by the verdict returned yesterdy in St. Clair County awarding a former altar by $5 million against the Belleville Archdiocese. This is one of the most significant verdicts in Illinois involving childhood sexual abuse, and it included $2.6 million in punitive damages and $2.4 million in compensatory damages. The jury found that the diocese conspired to hush sex abuse allegations and allowed the priest free rein in the diocese even after church officials knew he couldn't control his sexual urges toward young boys and girls.

Verdicts like this encourges other victims to come forward and clearly forces entities that are responsible for the care of our children to see that those in their employment are properly and promptly disciplined so as to prevent future acts of childhoood sexual abuse. One of the jurors who was interviewed after the verdict stated that the actions of the diocese were "appalling" and added "they kept placing Father Kownacki in the parishes." A former diocesan official at the Belleville Archdioces testified that prior allegations concerning Father Kownacki were hushed up and that the victims were treated as "dirty laundry." According to the evidence at trial it took more than 20 years for Kownacki to be removed from active ministry.

Since the abuse took place in the 1960's the victim has had a difficult time defeating the statutue of limitations defenses that have been use for years to have these complaints dismissed. Recently, the Applellate Court for the Fifth District stated: "(w)e conclude that section 13-202.2(e) evinces a clear legislative intent that the 2003 amendment apply to all cases filed on or after its effective date, including those in which the allegations of abuse relate to events that preceded the amendment." Doe v. Diocese of Dallas, 379 Ill. App. 3d 782, 792, 885 N.E. 2d 376, 384 (2008). This decision should allow victims to step forward and hold those accountable for sexual abuse that took place many years ago that were previously dismissed based on the statute of limitations. This verdict demonstates that it can and will be done!

An Illinois Uninsured Motorist policy has been interpretted by the Appellate Court as providing coverage to a child living with his mother and her fiancee under the fiancee's insurance policy in an opinion released July 25, 2008. Clayton v. Millers First Insurance Co., 2008 WL 2926874 (5-07-0061). The minor plaintiff was injured in a one car accident where the driver was uninsured and sought uninsured motorist benefits under his mother's fiancee's insurance policy. The insurance company denied coverage and a declaratory judgment action followed where the trial court granted the insurer's motion for summary judgment holding that the child did not qualify as a "family member" under the fiancee's policy. An appeal followed.

In the appeal the pertinent question was whether the minor plaintiff qualifies as a "family member" under the fiancee's policy. The policy defined "family member" as follows: "....a person related to you by blood, marriage, or adoption who is a resident of your household. This includes a ward or foster child." The plaintiff contended that the definition was ambiguous and that the term "ward" has several meanings.

The Clayton court discussed whether the term "ward" necessarily required court adjudication. The mother's fiancee was never appointed as a guardian, the minor merly lived with him along with his mother. Citing Parks v. Kownacki, 305 Ill. App. 3d 449, 711 N.E. 2d 1208 (1999), rev'd on other ground, 193 Ill. 2d 164, 737 N.E. 2d 287 (2000), the Appellate Court held: "that the term ward could be used to describe a person despite no prior adjudication of that status." Clayton, supra. The Appellate Court reversed the trial court's granting of a summary judgment and held as a matter of law that the minor was entitled to uninsurance motorist benefits under his mother's fiancee's insurance policy. Read those policies carefully there may be more there than you think!

Illinois children who are sexually or physically abused on school buses operated by school districts are now afforded the same legal protections that apply to passengers on common carriers. In Green v. Carlinville School District, 381 Ill. App. 3d 207, 887 N.E. 2d 451 (2008), the trial court granted the school district's motion for summary judgment holding that the school district was not operating as a common carrier while transporting children on it school buses, and therefore did not owe a heightened duty of care to children sexually abused by its driver. In reversing the trial court, the Appellate Court Fourth District relied upon the Illinois Supreme Court's 1882 decision in Chicago and Eastern Railroad v. Flexman, 103 Ill. 546, where the Supreme Court stated: "..the contract which existed between appellant as a common carrier and appellee as a passenger, was a guaranty on behalf of the carrier that appellee should be protected against personal injury from the agents or servants of appellant in charge of the train. It alone had the power of removal, and justice demands that it should be held responsible for their wrongful acts toward passengers while in charge of the train." The Green court in interpretting the Flexman decision stated: "Our supreme court has long held that if an employee of a common carrier intentionally injures a passenger, the common carrier is liable for the passenger's injuries, even if the employee's actions were not in his actual or apparent scope of authority." 381 Ill. App. 3d 207, 887 N.E. 2d 451, 456 (2008).

The decision in Green is very significant because it directly holds: ".. that school districts that operate school buses owe their students the highest degree of care to the same extent common carriers owe their passengers the highest degree of care." 887 N.E. 2d at 456. Therefore, if a school bus driver intentionally assaults a child on the school bus physically or sexually, the school district is liable even though clearly outside the scope of employment. This decison requires school districts to conduct criminal background checks on its employees prior to hiring them as is required by 105 ILCS 5/34-18.5 and to vigilant in supervising its employees that it places in charge of children. Protection of children is an interest that deserves protection!

Illinois attorneys handling Underinsured Motorist Claims should be aware that there are setoffs that the insurance companies are claiming that need to be challenged. In a typical situation, plaintiff sustains serious injuries caused by the negligence of another driver. Plaintiff settles her claim for the policy limits of $100,000 from the negligent driver's insurance company. Plaintiff makes a claim against her won insurance company for additional benefits under the underinsured motorist coverage of her own policy. Her insurance policy has limits of $300,000 for underinsurance motorist coverage. The plaintiff's insurance company will routinely seek a credit for the full $100,000 paid by the neglligent driver's insurance company, therby leaving only an additional $200,000 available to compensate the seriosly injured plaintiff.

The common fund doctrine allows a party that creates a fund from which others benefit to seek reimbursement from those other parties. Scholtens v. Schneider, 173 Ill. 2d 375, 671 N.E. 2d 657 (1996). The common fund doctrine most often appears in situations where an insurer obtains a recovery for medical expenses they paid through the plaintiff's attorney's efforts in securing the fund. However, the common fund doctrine is not limited to insurance subrogation cases. Chapman v. Kitzman, 193 Ill. 2d 560. 739 N.E. 2d 1263 (2000). The general requirements for applying the common fund doctrine are: (1) the fund for which fees are sought was created as a result of legal services performed by the plaintiff's attorney, (2) the claimant of the fund did not participate in its creation, and (3) the claimant will benefit from the fund. Taylor v. State Universities Retiremement System, 203 Ill. App. 3d 513, 560 N.E. 2d 893 (1990).

In a very interesting partial concurrence and disssent Justice Chapman addresses the intersection of the common fund doctrine and underinsured motorist benefits and concludes that: "the common-fund doctrine is applicable." James v. Western States Ins. Co., 335 Ill. App. 3d 1109, 1127, 738 N.E. 2d 37, 51(2001). Using the example above with the $100,000 settlement with negligent driver's insurance company, the underinsured motorist policy of $300,000 would receive a credit of $66,666 ($100,000 minus $33,333 in fees or $66,666), instead of the full $100,000 credit. Using this approach achieves a $33,000 additional benefit to the client.

Young v. Mory, 294 Ill. App. 3d 839, 690 N.E. 2d 1040 (1998), provides persuasive authority for this approach. In Young, the court held that the State Employees Retirement System could not claim a full offset of worker's compensation benefits paid to injured worker, but only that portion of benefits that the injured party actually received after the deduction of attorneys fees. This issue should be pressed in the trial court, and if unsuccessful, an appeal should be taken. I am hopeful that the Appellatte Court may follow the reasoning of Justice Chapman and the holding of Young and apply the common fund doctrine to undersinsured motorist claims. Why should injured parties pay attorneys fees to provide a benefit to insurance companies without requiring the companies to pay some of the freight-this is what the common fund doctrine is all about!

Tires older than 6 years old should not be used on motor vehicles since it can lead to tread separation and catastrophic failure. Since 2001 the British Rubber Manufactures Association (BRMA) have recommended: "BRMA members strongly recommend that unused tyres should not be put into service if they are over 6 years old and that all tyres should be replaced 10 years from the date of their manufacture." This is incredible since BRMA includes all the tire manufacturers who also sell in the United States. No such warnings have been given by tire manufacturers and retailers to consumers in the United States. Retailing giants in the U.S. like Walmart and Sears routinely sell tires as new in their stores that are routinely older than 6 years and sometimes as old as 17 years. This is unconscionable!

Like any other rubber product, tires have a limited service life regardless of tread depth and use. Tire age can be determined through decoding of the required DOT number printed on the side of a tire, but it is of no help to consumers because you must know the code to interpret when the tire was manufactured. Experts that I have worked with say that tire age is a silent killer because a consumer can purchase a brand new tire from a reputable retailer or outlet and have no idea that at the time of purchase the tire is already defective.

Ford Motor Company added a 6 year tire replacement recommendation, regardless of tread wear, to all 2006 owner's manuals. Finally, on June 2, 2008, the National Highway Transportation Safety Administration (NHTSA) issued a Consumer Advisory warning that aged tires, regardless of tread use, are subject to greater stress increasing the likelihood of catastrophic failure. Recent investigative reports point to corporate neglect and government inaction as the root cause of American consumers buying new tires that are defecive at the time of purchase.

Attorneys reviewing cases involoving tread separation must be alert to and agressively evaluate the age of the tire as a possible cause of the separation. Insurance industry data reflect that 84% of tire claims arise in tires over 6 years old. Securing the tire and retaining the appropriate tire safety experts are essential first steps for the attorney to take when pursuing these product liability claims. Tire manufacturers, automotive companies, and their retailers have long been aware of the dangers posed by marketing tires older than 6 years old, but have failed to warn consumers despite the deadly consequences. If tread separation occurs on a tire older than 6 years with deadly consequences, sue the bastards!