April 24, 2014

Illinois Fracking Lawsuits

The Hydraulic Fracturing Regulatory Act, 225 ILCS 732/1-1 et. seq. became law in Illinois on June 17, 2013. Environmentalists and landowners above the "New Albany Shale" initially hailed the law, but now that the Illinois Dept. of Natural Resources has issued its draft rules, many of the law's core provisions have been gutted. Specifically, The Act required compliance with "applicable federal, state and local laws." This language has been omitted from the draft rules.

On April 22, 2014, in Dallas County, Texas, a jury returned a $2,925,000. verdict against Aruba Petroleum in favor of Bob and Lisa Parr who owned land that was effected by their fracking operations (case no. CC-11-01650-E). This case was significant because the defendant argued they were in compliance with the law. The verdict included compensation for loss of market value to their home and 40 acre property, as well as damages for physical pain and suffering and mental anguish. This result was obtained not through any state or federal statutory scheme, but rather the common law torts of trespass and nuisance. This was the first verdict in the U.S. regarding damages from fracking.

I have and currently am using these same common law torts, trespass and nuisance against corporations who have polluted the well water, land and air in Illinois. Fracking is just beginning in Illinois, particularly in the southern Illinois New Albany Shale. Various environmental problems are just beginning to emerge. Thoughtful people can disagree whether the risks of fracking outweigh the benefits, however, if it is your land, air, water, and family that are being negatively impacted, you may wish to know what legal rights you may have. Should you wish to discuss if you may have a legal remedy against an entity engaged in fracking that may be damaging to your property, your health, and quality of life, feel free to contact Edmund Scanlan toll free at 877-494-1309.

December 11, 2013

Laser Guided Vehicle Accidents

Laser Guided Vehicles (LGV), sometimes referred to as Automatic Guided Vehicles (AGV) are being used increasingly in manufacturing facilities as a replacement for human operated forklifts. While there are benefits in terms of efficiency there have been tragic accidents that are becoming more widespread due to increased usage of the LTV's.

I am currently representing an individual who was seriously injured when the LGV operating in a warehouse where he was employed failed to stop in time thus causing him severe crushing injuries. Anyone considering representing a client in a LGV accident must be familiar with the American National Standard Institute's Safety Standard For Driverless, Automatic Guided Industrial Vehicles (AGV) which also applies to LGVs, which is merely a different name for the same technology. These standards are put forth under the copyright of the "Industrial Truck Standards Development Foundation."

ANSI B 65.5 - 2012, Sec. 4.1.2 states: "Automated guided industrial vehicles can cause injury or damage if improperly used or maintained and if the potential risks specified in user training associated with hazard zones and restricted areas are not respected by persons within or adjacent to these areas." The risk associated with LGV use is clearly understood and addressed in these standards.

ANSI B 65.5 - 2012, Sec. 4.3.1 deals with stopping distance and, in part, states: "...The prime consideration is that the braking system in conjunction with the object detection system and the response time of the safety control system shall cause the vehicle to stop prior to impact between the vehicle structure and other mounted equipment, including its intended load, and an obstruction being sensed in advance of the moving vehicle in the main direction of travel." There is an exception to Sec. 4.3.1 and it should be printed prominently in all locations where LGVs and/or AGVs are in use.

EXCEPTION: Although the vehicle braking system may be performing correctly and as designed, it cannot be expected to functions as designed and specified in para 4.3.1 should an object suddenly appear in the path of the vehicle and within the designed safety stopping distance. Examples include, but are not limited to, an object falling from overhead or a pedestrian stepping into the path of the vehicle at the last instant.

There are several sections of the ANDSI standards dealing with Travel Performance-Sec 8.7, Braking System and Functions-Sec. 8.8, Warning Devices- Sec. 8.9 and Object Detection Devices and Controls- Sec.8.11. These standards provide a basic framework with what the industry believes should be the the standards for Manufacturers and Users of these Automatic Guide Vehicles. These vehicles are here to stay, but there are multiple safety issues that have yet to be addressed. Last year there were fatalities and serious injuries caused by the LTVs or ATVs and most could have been prevented.

If you or a family member have been injured as a result of LGV or AGV use in an industrial setting, fell free to contact Edmund Scanlan toll at 877-494-1309 for a free consultation.

April 18, 2013

Physicians and Administrators Conspire at Sacred Heart Hospital

As an Illinois medical malpractice lawyer it is difficult to fathom a scenario where hospital administrators and physicians conspire to unnecessarily intubate patients and while intubated to overmedicate them so as to require a tracheotomy. This is precisely what transpired at Sacred Heart Hospital on Chicago's west side according to federal charges brought this week against the hospital owner, an administrator, and four affiliated physicians.

According to Crain's Chicago Business, 96.7% of Sacred heart's revenue comes from Medicare and Medicaid. Sacred Heart's reimbursement for tracheotomies was $160,000. per patient for a 28 day hospital stay. Some of the patient undergoing unnecessary procedures died or had serious medical complications. This is the worst form of medical malpractice.

Should you or a family member have been a patient at Sacred Heart Hospital and suspect unnecessary surgeries or treatment for you or a family member, feel free to call Edmund Scanlan 312-422-0343 for a free consulatation.

March 9, 2013

Table Saw Injury - Product Liability Lawsuits

Lawyers representing victims who have been injured using table saws must be aware of the flesh-detection technology available that could prevent most of these injuries. The Consumer Product Safety Commission estimates at least 60,000 injuries and 3,000 amputations per year stem from use of table saws in the U.S. Dr. Stephen Gass, the inventor of the flesh-detection technology, called Saw Stop, has testified as an expert that this technology should have been incorporated in any table saw manufactured after 2004. The Saw Stop technology detects contact between human flesh and a saw blade so that accidents that might otherwise have resulted in a severe laceration or amputation will cause only a minor cut or scratch.

Lawsuits claiming that the table saws are unreasonably dangerous generally revolve around the theory that "a feasible alternative design" existed in the form of a saw incorporating Saw Stop technology. Dr. Gass and others have testified that it is technically, practically and economically feasible to have the Saw Stop technology incorporated into all table saws.

Illinois law requires plaintiff in a product liability lawsuit alleging defective design under the risk-utility method to present "evidence of an alternative design that is economical, practical and effective" Mikolajczk v. Ford Motor Co., 231 Ill. 2d 516, 526 (2008). The Illinois Supreme Court has held that "a plaintiff may demonstrate that a product is unreasonably dangerous because of a design defect by presenting evidence of an alternative design that would have prevented injury and was feasible in terms of cost, practicality and technological possibility" Hanson v. Baxter Healthcare, 198 Ill. 2d 420, 436 (2002). According to testimony from Saw Stop's inventor, adding the Saw Stop technology onto existing models of table saws would cost $150 per table saw.

Bringing a lawsuit for injuries received on a table saw without Saw Stop technology will generate the inevitable Daubert challenges to the experts opinions, particularly as to the technical, practical and economic feasibility, but they can be and have been successfully prosecuted. Should you or someone you know suffer a serious injury using a table saw you may wish to call an experienced product liability attorney, Edmund Scanlan, toll free at 877-494-1309 for a free consultation.

January 6, 2013

Failure to Disclose or Report Past Sexual Abuse

Fixing liability on prior employers of known sexual abusers who withhold information of that abuse to subsequent employers where employee proceeds to sexually abuse additional minors has never been addressed by the Illinois high court. The Illinois Supreme Court in Doe-3 v. Mc Lean County Dist. 5, 973 N.E. 2d 880 (2012) addressed this issue head on. In Doe-3, the trail court dismissed action by two minor sexual abuse victims against prior school district employer of pedophile that alleged failure to disclose to subsequent employer of pedophile that he had been disciplined for "sexual harassment, sexual grooming, and/or sexual abuse." The trial court found that prior school district had no duty to minor sexual abuse victims. The appellate court reversed the dismissal and the high court affirmed the appellate court's holding albeit on different grounds.

The Supreme Court acknowledged that: "In Illinois an affirmative duty to aid or protect another against an unreasonable risk of physical harm arises only in the context of a legally recognized duty." Doe-3, 973 N.E. 2d 880, 888; Simkus v. CSX Transportation, 965 N.E. 2d 1092 (Ill. Sup. Ct. 2012); and Iseberg v. Gross, 227 Ill. 2d 78, 87-88, 879 N.E. 2d 278 (2007). The Supreme Court noted that plaintiffs had not plead any of the recognized "special relationships". The Doe-3 court stated: "Nevertheless, we find that plaintiffs have alleged circumstances which do give rise to a duty owed by defendants in this case." 973 N.E. 2d 880, 889.

The issue the Doe-3 court dealt with encompasses a school districts' duty to disclose prior history of sexual abuse by one of its teachers to a subsequent school district employer of that teacher. The court began its duty analysis observing: "...every person owes a duty of ordinary care to all others to guard against injuries which naturally flow as a reasonably probable and foreseen consequence of an act, and such a duty does not depend on privity of contract, privity of interest or the proximity of relationship but extends to remote and unknown persons." 973 N.E. 2d 880, 887-888.

The Supreme Court then addressed the "duty" analysis under the traditional "relationship" test. The high court stated: "...relationship is a shorthand description of four factors: (1) reasonable foreseeability of the injury, (2) likelihood of the injury, (3) magnitude of the burden of guarding against the injury, and (4) consequences of placing burden on defendant." 973 N.E. 2d 880, 888. The court held that in light of defendant's awareness of teacher's past sexual abuse and their false statement on employment form that they could not say that the injuries were unforeseeable. As to the second factor the court held that: "nothing in the the alleged facts that would suggest thet the suffered by the plaintiffs are too remote or unlikely..." 973 N.E. 2d at 891. The court also held that the magnitude of guarding against the injury-requiring employer to accurately complete an employment form-would not be great. In addressing the fourth prong of the duty analysis the court concluded that : "it is difficult to see how many adverse consequences could result from imposing such a slight burden on a school district." 973 N.E. 2d at 891.

The Doe-3 court in finding a duty stated: "Having undertaken the affirmative act of filling out White's employment verification form, defendants had a duty to use reasonable care in ensuring the the information was accurate." 973 N.E. 2d at 891-892. The Illinois Supreme Court's holding in Doe-3 is extremely important for the victims of sexual abuse. No longer will prior employers be able to shield pedophiles by failing to disclose their knowledge of sexual abuse to subsequent employers. In Illinois a duty to disclose is now the law. Hopefully the holding in this important case will prevent further instances of childhood sexual abuse. Feel free to contact Edmund Scanlan toll free at 877-494-1309 for a free consultation.

December 30, 2012

Illinois De Puy Hip Replacement Statute of Limitations

No Illinois court decisions currently interpret when the statute of limitations expires on De Puy Hip Replacements lawsuits, but there are decisions by both the Illinois Supreme and Appellate courts that provide guidance. Illinois products liability statute of limitations is found at 735 ILCS 5/13-213(d) which provides that: " ...the plaintiff may bring an action within 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, of the existence of the personal injury, death...but in no event shall such action be brought more than 8 years after the date on which such personal injury, death...occurred."

The Illinois Supreme Court has held: "...the statute starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused." Knox v. Celotex, 88 Ill. 2d 407, 414-415, 430 N.E. 2d 976, 980 (1982). The Illinois high court has also stated that: "...an injured is not held to a standard of knowing the inherently unknowable...yet once it appear that an injury was wrongfully caused, the party may not slumber on his rights." Nolan v. Johns-Mansville, 85 Ill. 2d 161, 171, 421 N.E. 2d 864,, 868 (1981).

On August 24, 2010, De Puy Orthopedics, Inc. instituted a recall of its ASR XL and ASR Hip Replacement Systems. These systems feature chromium and cobalt in its ball-and-socket design. In light of the Illinois decisions interpretting the "discovery rule" it appears that patients with De Puy hip replacements that have failed have 2 years from the date they noticed the failure to file suit (See Aug. 5, 2011 blog re: failures). A fair interpretation of Illinois law will lead to the conclusion that the recall of August 24, 2011, puts any person on notice at the time the failure is noticed that it was wrongfully caused by a design defect in the hip replacement system.

A recent analysis of the "discovery rule" is contained in Matias v. I-Flow, 959 N.E. 2d 94 (Ill. App. 2011).The Matias court focused on "wrongful cause" in determining when the two years begins running by stating: "it is a prerequisite for triggering of the statute of limitations that the injured plaintiff have actual or constructive notice of the possibility that someone is at fault for the injury's existence." In De Puy cases the the recall of August 24, 2010, may be held to be the triggering event.

Patients and attorneys who have clients with failed De Puy hip replacement systems should not delay in bringing suit on the belief that they weren't sure what caused the failure-the recall will most likely be determined to be the "triggering event" in imputing knowledge. Should you so choose feel free to call Edmund Scanlan, an experienced product liability trial lawyer, toll free at 877-494-1309 for a free consultation. I am currently representing several clients who have failed De Puy hip replacement systems. Do not delay.

July 8, 2012

Illinois Amends Abuse Reporting Act

In the wake of the conviction of Jerry Sandusky for sexual abusing minors, Illinois has amended The Abused and Neglected Child Reporting Act, 325 ILCS 5/4. The amendment which became effective June 27, 2012, adds: personnel of institutions of higher education and director or staff of athletic program, to the extensive list of people who are mandatory reporters of knowledge of abuse or neglect of a child.

The law-325 ILCS 5/4-has for years covered physicians, residents, nurses, dentists, chiropractors, EMTs, crisis line personnel, nursery school personnel, teachers, educational personnel (which did not until recently include "institutions of higher education"), members of school board, social workers, law enforcement officers, psychologists, probation officers, foster parents, truant officers, and personnel at various state agencies. They all have a duty when "having reasonable cause to believe a child known to them in their professional or official capacity may be an abused child or neglected child" to "immediately report or cause a report to be made to the Department" (Dept. of Children and Family Services)325 ILCS 5/4. Failure to report may well be the evidence to hold the institution of higher education or athletic program financially accountable when they fail to insure their personnel are aware of and do report suspected abuse of children.

The penalties for failing to report or filing a false report range from a Class A misdemeanor to a Class 3 felony. The thrust of the recent amendment of the Act and in including "personnel of institutions of higher education" and "director or staff of..athletic program" is to address precisely the situation that occurred at Penn State University where numerous members of the athletic department and many administrators including the president of the university were aware of reports of childhood sexual abuse and did nothing about it. Neither the Sandusky saga nor Penn State legal problems will go away soon. It is difficult for many of us to imagine grown men becoming aware of a pattern of sexual abuse of young boys by a university coach, and not stopping it immediately and clearly reporting the criminal behavior. At Penn State the sanctity of their football program and the money it generates trumped the natural tendency of grown men to protect a young boy from a sexual predator like Sandusky. Hopefully this amendment may save a child in Illinois from undergoing what Sandusky's victims endured!


May 1, 2012

Second Opinions-Personal Injury Cases

People injured in accidents in Illinois frequently hire an attorney recommended by a friend or who advertises on TV. The lawyer retained will sometimes have little or no jury trial experience-this question should always be asked before retaining the attorney. Oftentimes the client becomes unhappy with the lawyer-lack of communication, attorney lacks the required experience, lawyer referring case out to another lawyer, and many more. Whatever the reason you are entitled to consult with another attorney for a second opinion. I have successfully represented injured victims and their families in personal injury and wrongful death lawsuits in Illinois state courts and federal courts throughout the United States for over 30 years.

On the occasions that I have been contacted for a second opinion the most common questions posed are: Is it possible to change lawyers?-the answer is YES, What will it cost to change lawyers?-the answer is often NOTHING, and Will it hurt my ability to collect full compensation?-the answer normally is NO. Remember that if you suffered injuries as a result of the fault of another you will only get one opportunity to obtain full and fair compensation and unless you have a mutual relationship of trust and respect with your lawyer it is unlikely that your goals will be achieved. It is a fundamental right of every client to discharge his/her attorney and hire another attorney and this decision must be respected by the discharged attorney.

All cases present unique factual and legal issues and we offer free consultation to discuss your case. I take pride in guaranteeing that I will be present with you at all times during the lawsuit from initial consultation, depositions, pretrial conferences, the jury trial, and any appeals that may follow. You will not be referred to another lawyer or firm nor will a young associate handle your case. I remain with my clients all the way through the litigation process. This is important because I have numerous significant verdicts for my clients in personal injury and wrongful death actions including many multi million dollar verdicts. The insurance companies and their lawyers know this-and this significantly increases your opportunity to receive full compensation. Should you so choose feel free to contact Edmund Scanlan toll free at 877-494-1309 for a free telephone or office consultation.

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March 28, 2012

Illinois Sexual Abuse Statute of Limitations

Illinois sexual abuse lawyers representing clients who were abused when they were children are confronted with four different versions of 735 ILCS 5/13-202.2. A careful analysis of the four distinct versions of the statute is essential in determining whether the claim is viable or fails due to the statute of limitation and/or the statute of repose.

The 1991 version (effective 1-1-91) of 735 ILCS 5/13-202.2 provides that an action for childhood sexual abuse must be commenced within 2 years of reaching 18 or 2 years from the date the person abused discovers the act of childhood sexual abuse occurred and that an injury was caused by the childhood sexual abuse. The statute of repose in the statute provided that : "...but in no event may an action for personal injury based on childhood sexual abuse be commenced more than 12 years after the date on which the person abuse attains the age of 18 years."

The Illinois Appellate Court in Wisniewski v. Dioceses of Belleville, 406 Ill. App. 3d 1119, 1150, 943 N.E. 2d 43, 69 (2011), stated: "The difference between a statute of limitations and a statute of repose is that a statute of limitations governs the time within which lawsuits may be commenced after a cause of action has accrued, while a statute of repose extinguishes the action after a fixed period of time, regardless of when the action accrued. "The effect of the 1991 version of the statute was to "bar anyone over the age of 30 from bringing an action for personal injury based on childhood sexual abuse." Doe v. Diocese of Dallas, 243 Ill. 2d 393, 408, 917 N.E. 2d 475, 484 (2009).

The 1994 version (effective 1-1-94) of 735 ILCS 5/13-202.2 eliminated the 12 year statute of repose for childhood sexual abuse claims. However, the legislature's repeal of the statute of repose was not applied retroactively to revive claims that had expired prior to the repeal of the statute of repose. Doe v. Diocese of Dallas, 234 Ill. 2d at 409, 917 N.E. 2d at 484 (2009). Accordingly, if the victim of childhood sexual abuse has attained the age of 30 prior to January 1, 1994, the statute of repose bars the action and it cannot be revived by the 1994 repeal of the statute of repose.

The 2003 version (effective 7-24-03) of 735 ILCS 5/13-202.2 increased from 2 years to 10 years the time after attaining 18 to bring an action. It also increased from 2 years to 5 years the time frame for bringing an action after discovering both (i) that the act of childhood sexual abuse occurred and (ii) that the injury was caused by the sexual abuse. The statute specifically states: "Knowledge of the abuse does not constitute discovery of the injury or the causal relationship between the any later-discovered injury and the abuse." This language was important because it overruled the Illinois Supreme Court's holding in Clay v. Kuhl, 189 Ill. 2d 603, 611, 727 N.E. 2d 217, 222 (2000), where the court stated: "Notably, Illinois law presumes an intent to harm and a resulting injury from the type of misconduct allegedly committed by Kuhl." The 2003 amendment was critical because the effects on a victim of childhood sexual abuse frequently do not manifest themselves or are not understood to be related to the sexual abuse until well after 5 years after the victim reaches the age of 18.

The 2011 version (effective 1-1-11) of 735 ILCS 5/13-202.2 increased from 10 years to 20 years the time after 18 to bring an action. It also increased from 5 years to 20 years the time for bringing an action after discovering "both (i) that the act of childhood sexual abuse occurred and (ii) that the injury was caused by the childhood sexual abuse."

The effects of these amendments are to allow victims of childhood sexual abuse to bring actions even though the injuries and effects of the abuse and their causal relationship are not discovered until well into their adult years. When discussing issues surrounding sexual abuse claims it is essential that you discuss your situation with an attorney familiar with the nuances not only of the statute of limitations but also of the tactics of the attorneys who defend those charged with abusing children. Should you wish to discuss any issues regarding childhood sexual abuse feel free to contact Edmund Scanlan toll free at 877-494-1309.


March 16, 2012

Traumatic Brain Injury-Release Signed-Mutual Mistake of Fact

Recently I settled an Illinois traumatic brain injury lawsuit immediately before trial for $800,000. This case was complicated by the fact that the 19 year old male passenger in a car struck by a truck pulling off a stop sign actually signed a release settling his claim with the claims adjustor for $3,250 a few weeks after the accident. About nine months later the young man's behavior changed radically and he was ultimately admitted to a mental health center with a diagnosis of major depression, and he has and will remain in an inpatient facility for the rest of his life. Suit was filed shortly after his family suspected that he may have suffered a brain injury in the accident, but that the brain injury did not manifest itself until several months following the accident. Defendants filed motion to dismiss on the basis of the release, which was initially granted, but case was transferred to another judge who ruled that a factual issue remained whether there was a mutual mistake of fact.

The main issue in this case was whether there was a mutual mistake of fact at the time the release was signed. I deposed the claims adjustor who testified that she did not contemplate a brain injury at the time of settlement and that her analysis only took into account that the plaintiff had twelve stitches to his head in the accident. The plaintiff also testified that he only felt he had a cut to his head in the accident at the time he signed the release. Four years after the accident a brain injury specialist diagnosed him as having a traumatic brain injury. He testified convincingly that plaintiff was not suffering from depression or schizophrenia, but rather had sustained a traumatic brain injury in the auto accident.

A few months before trial was scheduled to begin I filed a motion for partial summary judgment alleging that there was a mutual mistake of fact that voided the release. In Scherer v. Ravenswood Hospital, 70 Ill. App. 3d 939, 947, 388 N.E. 2d 1268, 1274 (1979) the court stated: "Where...the evidence reveals an injury involving such pervasive damage as permanent mental retardation, resulting from cerebral dysfunction; the settlement is in an amount significantly disparate to the seriousness of the injury; and the injury is an unanticipated, extraordinary complication, then a mutual mistake of fact has been clearly and convincingly proven which, if allowed to stand, will result in an unconscionable hardship to plaintiff."

Relying on Scherer v. Ravenswood as well Meyer v. Murray, 70 Ill. App. 3d 106, 387 N.E. 2d 878 (1979), the trial judge ruled that the release was invalid based on a mutual mistake of fact at the time the release was signed-neither plaintiff nor claims adjustor were aware of the seriousness of the injury at the time the release was negotiated. Shortly before trial the case settled for $800,000. If you or a family member has sustained a traumatic brain injury call Edmund Scanlan toll free at 877-494-1309 for a free consultation.


March 4, 2012

Online Prescriptions Are Becoming A Public Health Threat

Purchasing prescription drugs over the internet without a valid prescription is shockingly simple. An internet connection, a credit card and basic Google skills are all you need to have prescription drugs delivered to your front door.

The National Association of Boards of Pharmacy (NABP) issued a rare "public health alert" on July 28, 2011. Based on a recent study the NABP found that 96 percent of 8,000 rogue websites analyzed continue to operate out of compliance with U.S. pharmacy laws. In their alert the NABP warned: "The fake online pharmacy crisis has reached an epidemic level, they prey on prescription drug abusers, and the most vulnerable members of society..." Most of these sites will sell prescription drugs without a valid prescription. The National Center on Addiction and Substance Abuse (CAPA) at Colombia University in 2006 found that 9 out of 10 websites selling prescription drugs do not require a prescription.

According to research conducted by the Partnership for a Drugfree.org found that 1 in 6 Americans purchase prescription drugs via the internet without a valid prescription. They also found that from 2000 to 2007 states with the fastest growth of Internet access also had the largest jump in hospital admissions for treatment of prescription drug abuse. The Journal of Health Affairs in May 2011 suggested that the growth of high speed internet access has fueled prescription drug abuse.

The sale of prescription drugs over the internet is extremely lucrative (see my blog of Jan. 18, 2007) and is fueled by the unholy trio of website operators (frequently overseas), the pharmacists, and online prescribing physicians. The physicians who issue prescriptions based on online questionnaires without ever seeing the patient are the most reprehensible. The Ryan Haight Online Pharmacy Consumer Protection Act makes it a felony to prescribe controlled substances over the internet without a valid prescription. However, even the sale of non controlled prescriptions drugs without a valid prescription -patient having a physical examination by a physician- is also a felony (see my blog of December 15, 2011). Late last year Senators Feinstein and Sessions introduced the Online Pharmacy Safety Act of 2011 which makes it a felony to prescribe non controlled prescription drugs without a valid prescription.


If you or a family member have been injured or died as a result of a prescription drug obtained over the internet, you can and should fight back. Medical malpractice and product liability lawsuits against internet pharmacies, pharmacists, and physicians who prescribe without a valid physician-patient relationship are an effective way to secure not only compensation for your losses but also to put a halt to this growing public health threat. Should you wish to discuss your situation further, feel free to contact Edmund Scanlan toll free at 877-494-1309.

February 13, 2012

Illinois Wrongful Death - "In-Concert Liability"?

A tragic accident on Interstate 290 in Addison, Illinois occurred early Saturday morning February, 11, 2012, when a 32 year old intoxicated man, leaving a work-related event, drove his car into a stopped squad car that had been waiting for a tow truck as a result of a previous collision.. A 42 year old man in the squad car was killed in the crash and the state trooper was injured.

The families of the victims of these tragedies are all too often left with only the amount of money that can be recovered under the intoxicated motorist's insurance policy. This can be as low as $20,000 per occurrence in Illinois and it rarely exceeds $300,000. Illinois wrongful death lawyers need to be aggressive in exploring all potential areas of recovery for the family in these tragic circumstances.

Illinois accident attorneys seeking to recover damages in addition to the insurance coverage on the intoxicated motorists vehicle can look to see (1) if Dram Shop Act (235 ILCS 5/6-21) liability is present-intoxicated motorist leaving tavern where he became intoxicated causes crash, or (2) whether "in-concert" liability will attach.

The law in Illinois is settled that the exclusive remedy for holding sellers of alcohol (taverns) liable for the actions of intoxicated drivers is under the Dram Shop Act. Cunningham v. Brown, 22 Ill. 2d 23, 174 N.E. 2d 153 (1961). While a defendant is generally under no duty to prevent the criminal acts of a third party absent a "special relationship." Hills v. Bridgeview Little League, 195 Ill. 2d 210, 228, 745 N.E. 2d 166 (2000), Illinois courts have adopted "in-concert" liability.

Section 876 of the Restatement (Second) of Torts imposes liability on those who act in concert with another tortfeasor giving substantial assistance or encouragement to another's tortious conduct. The Illinois Supreme Court has adopted Section 876 in Simmons v. Homatas, 236 Ill. 2d 459, 925 N.E. 2d 1089 (2010). The court in Simmons stated: "Although one does not have a duty to prevent the criminal acts of a third party, one does have a duty to refrain from assisting and encouraging such tortious conduct." 236 Ill. 2d at 476, 925 N.E. 2d at 1100.

In-concert liability may be a narrow exception to the rule that no duty exists to prevent the criminal acts of a third person absent a "special relationship," nonetheless all of avenues of recovery should be explored in these tragic accidents. All cases of serious personal injuries or wrongful death should always be investigated by an experienced jury trial lawyer who can best assess whether all avenues of recovery are being explored. Should you so choose you can contact Edmund Scanlan toll free at 877-494-1309 for a free consultation to discuss your options.


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