Chicago Accident Law Blog

September 29, 2009

Illinois Sexual Abuse Victims Lose Big

Illinois sexual abuse victims and their attorneys were severely disappointed with the September 24, 2009, Illinois Supreme Court decision in Doe v. Diocese of Dallas, 234 Ill. 2d 393, 917 N.E. 2d 475. The court framed the issue as: “..whether section 13-202.2 of the Code of Civil Procedure (735 ILCS 5/13-202.2), may be applied to permit an action for personal injury based on childhood sexual abuse to proceed where that action would otherwise have been time-barred under the law as it existed when the amendment took effect.”

The defendant priest’s lawyer contended that because plaintiff’s cause of action was already time-barred under the prior law years before the the 2003 amendments took effect, allowing the lawsuit to go forward now would deprive him of a vested right in violation of the due process protections of the Illinois Constitution (Ill. Const. 1970, Art. I Sec. 12). The Illinois Supreme Court agreed stating: “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 without offending the due process protections of our state’s constitution.”

This decision has caused me to discontinue representation of several meritorious claims of my clients. The court did not dwell on the thoughtful analysis of two appellate court opinions that discussed the retroactivity analysis between the “vested rights” and “legislative intent” approach to determining whether a claim is time-barred. I have written two earlier blogs on this topic. This is a sad day for victims of sexual abuse in Illinois.

August 21, 2009

Illinois Law Bans Texting or Emailing While Driving But Not Cell Phone Use

by Edmund Scanlan

Illinois car and truck accident attorneys in investigating the causes of vehicular crashes should always consider the possibility that one of the drivers was texting, emailing or on a cell phone at the time of the colllision. In 2008, the National Highway Traffic Administration (NHTSA) published a study indicating that driving daylight hours 11% -or 1.8 million drivers-were on the cell phone.

The National Safety Council has called for a total ban on cellphone use while driving because their research showed more than 100 million people are engaged in this activity everyday and that cellphone use has caused 636,000 crashes, 330,000 injuries, 12,000 serious injuries, and 2,600 deaths each year.

Texting while driving has been found by a recent study by Virginia Tech Transportation Institute to result in a 23 times greater risk of a crash. An Illinois law passed earlier this month will ban: texting, emailing, or websurfing while driving. This law will become effective January 1, 2010. This is a step in the right direction! Cell phone use while driving should similarly be banned.

June 30, 2009

Illinois Motorcycle Accident Attorneys Need Creativity

by Edmund Scanlan

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.
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June 1, 2009

Illinois Sexual Abuse Statute of Limitations Trumps 1 Year for Government Employees

by Edmund Scanlan

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!

April 1, 2009

Yamaha Rhino Rollovers Prompt Recall

by Edmund Scanlan

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

March 10, 2009

Illinois Truck Accident Brings Wrongful Death Awards

by Edmund Scanlan

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.

January 26, 2009

Illinois Sexual Abuse Victims Win Again

by Edmund Scanlan

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

November 19, 2008

Duragesic Pain Patch Lawsuit Brings $16.6 Million Award

by Edmund Scanlan

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.

October 31, 2008

State Product Liability Lawsuit Preemption before U.S. Supreme Court

by Edmund Scanlan

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.

August 28, 2008

Illinois Victim of Sexual Abuse Awarded $5 Million

by Edmund Scanlan

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!