Chicago Accident Law Blog

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!