Articles Posted in Personal Injury

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

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

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.

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.

Illinois childhood sexual abuse victims were given a chance to bring their claims for injuries by an opinion by the Illinois Appellate Court, Fifth District that was released March 7, 2008, Doe v. Diocese of Dallas, 379 Ill. App. 3d 782, 885 N.E. 2d 376. Essentially the court held that the statute of limitations for bringing a claim for childhood sexual abuse that became effective on July 24, 2003, and which in summary increased the statute of limitaions to 5 years from “the date the person abuse discovers or through the use of reasonable deligence should discover both (i) that the act of childhood sexual abuse occurred and (ii) that the injury was caused by the childhood sexual abuse, 735 ILCS 5/13-202.2, could apply to a claim that the previous statute of limitations had already barred. The Illinois legislature passed this legislation in direct response to an opinion by the Illinois Supreme Court in 2000 which held that there is no requirement that a plaintiff must know the full extent of his injuries before the statute of limitations begins to run, and further held that Illinois law presumes an injury from an allegation of sexual abuse, Clay v. Kuhl, 189 Ill. 2d. 603, 727 N.E. 2d 217 (2000).

In 2006 two different Illinois Appellate Court decisions intrepretting 735 ILCS 5/13-202.2, reached the same conclusion “once a statute of limitations has expired, the defendant has a vested right to invoke the bar of the limitations period as a defense to a cause of action. That right cannot be taken away by the legislature wothout offending the due process protections of our state’s constitution.” Kuch v. Catholic Bishop of Chicago, 366 Ill. App. 3d 309, 313, 851 N.E. 2d 233, 236 (2006); see also Galloway v. Diocese of Springfield, 367 Ill. App. 3d 997, 857 N.E. 2d 737 (2006). Both cases cited to a 1997 decision by the Illinois Supreme Court that held that once a statute of repose has extinguished a cause of action, defendant has a vested right under the due process clause of the State Constitution to invoke the statutory repose period, even after the repose period was abolished by the legislature. M.E.H. v. L.H., 177 Ill. 2d 207, 685 N.E. 2d 335 (1997).

The issue the court recently wrestled with In Doe v. Diocese of Dallas, (2008), was statutory retroactivity and whether to use the “vested rights approach” or the “legislative intent approach.”
The court described the vested rights approach as “the law applied was that which was in effect at the time of the appeal unless the use of that law somehow interfered with a vested right…., with the vested rights approach the legislature’s intent regarding retroactivity was not relevant.” The court stated that “under the legislative intent approach, the presumption is against retroactive application of the statutory changes unless the legislature clearly indicates an intent that the amendments be so applied.”
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Illinois Wrongful Death Act now allows jurors to award damages for “grief, sorrow, and mental suffering.” The law in Illinois since 1867 has been that in wrongful death actions, there is “no recovery for bereavement” and “nothing can be given as solatium.” Chicago & A.R. Co. v. Shannon, 43 Ill. 338, 1867 WL 5039 (1867).

Jury instructions in wrongful death actions arising before the effective date of this amendment, May 31, 2007, have and will include Illinois Pattern Jury Instruction (Civil) IPI 31.07. This instructions states: In determining “pecuniary loss” you may not consider the following:
(1) The pain and suffering of the decedent;
(2) The grief or sorrow of the widow and next of kin, or (3) The poverty or wealth of the widow and next of kin.

Needless to say this was and is a powerful argument that defendants, their insurers and attorneys make to jurors at the trial of a wrongful death action to limit the amount of damages awarded. Sometimes the only significant loss widows and next of kin sustain is the “grief, sorrow, and mental suffering” associated with the wrongfyl death of a family member.
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Illinois sexual abuse victims often confront confusing statute of limitations issues when bringing claims for chilhood sexual abuse. The Illinois Supreme Court held that under the common law discovery rule governing when a statute of limitations commences, there is no requirement that plaintiff must know the full extent of her injuries before the applicable statute of limitations begins to run. Clay v. Kuhl, 189 Ill. 2d 603, 727 N.E. 2d 217 (2000).

Plaintiff in Clay was born in 1964, sexually abused on hundreds of ocassions in 1972 and 1973, and filed suit against Kuhl and his religious order in 1996. Plaintiff alleged that it was not until 1994 that she first became aware that Kuhl’s misconduct caused her injuries.

The defendants moved to dismiss complaint pursuant to 735 ILCS 5/2-619(a)(5), arguing that the time for filing suit expired on March 31, 1984, when she turned 20 years old. Illinois law allows minors to bring suit within two years of reaching majority; 18 years old being majority in Illinois, 735 ILCS 5/13-211. The trial court granted defendants’ motion to dismiss. Plaintiff appealed and Illinois Appellate Court reversed the dismissal, Clay v. Kuhl, 301 Ill. App. 3d 694, 704 N.E. 2d 875. The Illinois Supreme Court granted leave to appeal and reversed the Appellate Court and affirmed the trial court’s dismissal.

In arguments before the Illinois Supreme Court plaintiff contended that application of the discovery rule is necessary because plaintiff did not realize the full extent of her injuries until well after her 20th birthday. The discovery rule states that a party’s cause of action accrues when the party knows or reasonably should know of an injury and that the injury was wrongfully caused. Knox College v. Celotex Corp., 88 Ill. 2d 407, 430 N.E. 2d 976 (1981).
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