Illinois Injury Lawyer Blog

The recent decision in Gil v. Reed, No. 06-1414 (7/23/08) declared that an earlier District court decision where summary judgment was granted to Defendant prison officials in regards to a FTCA and a Section 1983 claim was erroneous. The Plaintiff claimed that the Defendant prison officials committed negligence and medical malpractice when the Plaintiff’s specialist’s treatment orders were not followed: Plaintiff’s prescribition for antibiotics was not filled and another prescription was prescribed for Plaintiff despite warnings by another medical specialist. The Court declared that a question existed if Plaintiff was harmed by one or more of the Defendant’s alleged acts and sufficient facts also existed to raise an Eight Amendment issue. The Case has been vacated and remanded so the personal injury negligence suit and medical malpractice suit will be resolved in the near future.

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The recent decision of Clayton v. Millers First Insurance Companies No. 5-07-0061 (July 25, 2008) declared that an earlier trial court decision was erroneous when summary judgment for the Defendant insurance carrier was granted. The trial court decision wrongfully declared that a minor plaintiff who resides with the named insurance holder for several years did not qualify as a member of the named insured’s household. The recent decision clarified that the trial court’s definition of member of household was inadequate since it did not include wards or foster children. As personal injury lawsuits often overlap with lawsuits by insurance companies this new decision may help many insured plaintiff’s who have custody of foster children or wards of the state.

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The American Association for Justice (AAJ) is hosting its 2009 Winter Convention from February 7-11 in New Orleans, Louisiana. By attending and meeting with other personal injury attorneys, you can earn up to a year's worth of MCLE and AAJ Education credits.

For more information.

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The Illinois Appellate Court reviewed Wartalski v. JSB Construction and Consulting Company and affirmed the trial court's holding in a personal injury lawsuit that the defendants were not required to file a 2-1202 post trial motion challenging the trial court's admission of treating physicians' testimony that plaintiff's exposure to UV radiation caused his facial dystonia, in order to preserve the issue for appeal. However, trial court was not required to conduct a Frye hearing before admitting testimony from plaintiff's treating physicians that plaintiff's exposure to unshielded ultraviolet lamp caused damage to his 7th cranial nerve and resulting dystonia.

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As many personal injury lawyers and accident vicitms know, insurance companies often seem to change their rules at will. This recent video takes a more humorous path to raising awareness about consumer problems with insurance company policies and procedures. The video is a product of a a collaboration between Health Care For America Now (HCAN) and Public Service Administration (PSA).

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In Donnellan v. First Student, No. 1-06-2418 (June 24, 2008) the 4th division affirmed the trial court and held that a Six Million Dollar verdict for plaintiff, who suffered traumatic brain injury when his cargo van was struck from behind by school bus is not excessive despite lack of claim for wage loss. Further, trial court did not abuse its discretion when it allowed day in the life film to be used as demonstrative evidence but rejected defendant's surveillance video.

The surveillance video, because of obstructions to view and editing, had great potential to unreasonably prejudice the plaintiff. In addition, testimony of physician at Frye hearing that he has used SPECT machine as diagnosis tool for over 15 years and that use of test is taught in medical school is sufficient to allow his testimony that plaintiff's scan is consistent with traumatic brain injury under both Daubert and Frye; and other doctors were properly allowed to testify that they used test results to assist them with diagnosis.

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The 1st District in Wolfensberger v. David Eastwood, No. 1-07-0121 (May 12, 2008) 1st div. (WOLFSON) affirmed in part reversed in part, and remanded the automobile accident case back to the trial court. According to the Court, the trial court erred when it granted summary judgment in favor of issuer of umbrella insurance policy; because the issue of whether driver of vehicle in which plaintiff was a passenger at time of her injury was acting within the scope of his employment when he negligently drove from bar, is material issue of fact. In addition, in order to be covered as individual 'engaged in the business or personal affairs' of employer, driver must have been acting within the scope of his employment.

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The trial court correctly concluded that insurer of lighting contractor had duty to defend owner of building, as additional insured, in litigation for personal injuries sustained by occupant for injuries she sustained as result of exposure to unfiltered fluorescent lighting. In American Economy Insurance Company v. DePaul University, No. 1-05-4027 (May 30, 2008), the Court wrote that even though owner is the drafter of third party complaint against electrical subcontractor, there is additional evidence in case, not supplied by owner, to bring complaint within coverage of policy. Complaint alleges that plaintiff was injured as result of negligent "selection and installation" of lighting fixtures, bringing it within potential coverage.

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In Torress v. Midwest Development Company, No. 1-06-3698 (May 19, 2008) 1st div. (R. GORDON), the First District held that the trial court did not abuse its discretion when it barred experts testimony with regards to unnatural accumulation of snow and ice because experts deposition reveals that he could not testify to a reasonable degree of scientific and architectural certainty whether, water stains were present on underside of roof at the time when the plaintiff slipped and fell on the ice, whether ice damming had occurred at time of plaintiffs fall, whether ice or snow was on plaintiffs concrete step at time of his fall, and whether plaintiff had actually slipped on unnatural accumulation of snow and ice at the time of his fall.

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The 1st District, in Anthony v. The City of Chicago, No. 1-05-1954 (May 16, 2008) 5th div. (OMARA FROSSARD), certified questions answered. The Court held that the plaintiffs complaint, against City alleging failure to enforce building code and court order against building owners, who had been found in violation for failure to provide adequate exits, is barred by absolute immunity provisions contained in Section 2-103 of Tort Immunity Act.

Further, the willful and wanton exception in Section 2-102 does not apply to absolute immunity of Section 4-102 with regards to behavior of police officers at scene of disturbance; because plaintiffs have not named any individual employees of City as defendants; and plaintiffs have not alleged sufficient facts to show that City exercised requisite degree of control over premises.

For lawyers, this means that special care should be paid when bringing a personal injury lawsuit against a state or local government in case tort immunity statutes apply.

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In Berry v. American Standard, Inc., No. 5-06-0621 (May 19, 2008), Crawford County (Welch), the Court affirmed the trial court's holding that the plaintiff, suffering from terminal mesothelioma, who unsuccessfully sought to have his evidence deposition taken, and whose discovery deposition was extended over sufficiently long period of time that he died before it could be taken, was nevertheless a party to the litigation for purposes of SCR 212(a)(5) even after his wife was substituted as plaintiff as administrator of his estate. Nor do they qualify as dying declarations. Therefore, his discovery deposition could not be used as evidence at trial; and was properly barred by trial court.

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In Britton v. University of Chicago Hospitals, No. 1-06-3080 (May 27, 2008) 5th div. (Tully) the Court affirmed, holding that the plaintiff's complaint against hospital, for injuries she sustained when glass on revolving door, which she used to gain entry to hospital, broke after she pushed on it is subject to summary dismissal. Plaintiff has failed to present any evidence to show that hospital breached its duty to maintain door; or that its negligent maintenance proximately caused her injuries. Further, since door was not in exclusive control of defendant, and injury was not one that typically occurs in the absence of negligence, the doctrine of res ipsa loquitor does not apply.

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The 5th District, in United Fire & Casualty v. Keeley & Sons, No. 5-06-0307 (May 2, 2008) St. Clair County (SPOMER), reversed the trial court and remanded for further proceedings on the grounds that the trial court erred when it denied insurance company's motion for summary judgment in declaratory judgment complaint. General liability and commercial umbrella policy does not give rise to duty to defends or indemnify complaints against employer of injured workers at construction site for spoliation of evidence due to alleged destruction or disposition of I-beam on which employees fell.

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The 1st District in Farmers Automobile Insurance Association v. Wroblewski, No. 1-06-3604 (May 2, 2008) 6th div. (O'MALLEY) reversed the trail court, holding that a release in favor of employer of driver of vehicle with which defendant's insured vehicle collided, which specifically identifies the other driver and unambiguously provides that its execution releases all agents and employees of employer, serves to release employee driver. Therefore, trial court erred when allowed parol evidence to conclude that defendants could recover uninsured motorist benefits after employee's insurer became insolvent.

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The 4th District in The United Farm Family Mutual Insurance v. Frye, No. 4-07-0495 (April 21, 2008) Pike County (KNECHT) affirmed the trail court, holding because Indiana law applied to determine whether member of household exclusion in policy issued in Indiana to Indiana residents applies to preclude UIM coverage for claim by estate of husband against wife for death resulting from automobile accident in Illinois while wife was driving, trial court correctly entered declaratory judgment in favor of insurance company. Further, insurer is not estopped from raising policy defense by virtue of delay in filing declaratory judgment complaint.

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The 3rd District in Safeco Insurance Company v. Jelen, No. 3-06-0681 (April 10, 2008) Warren County (McCULLOUGH) Affirmed in part reversed in part, remanded: Because insurer's subrogation complaint against defendant, tortfeasor, for recovery of medical expenses it paid on behalf of its insured after she was injured in automobile collision in Illinois with defendants, is a tort claim, Illinois subrogation law will be applied under most significant relationship test. Therefore, trial court erred when it granted 2-615 motion to dismiss plaintiff's complaint for lack of standing. However, since insurer failed to submit any affidavits in response to Section 2-619 motion to dismiss counts based on agency, trial court did not err when it allowed defendant's motion to dismiss those counts of plaintiff's complaint.

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Some cases, including a personal injury lawsuit or worker’s compensation lawsuit, you take may arise in other states but can be filed in Illinois. If you have a case like this, be sure to check the statute of limitation in the other state before you begin the representation. You must verify that the statute has not expired. Other states may have widely different statutes of limitations that can even vary, per claim, within one area of law. Be sure to verify the statute on paper or using an internet-based legal research tool as word of mouth may not be enough.

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If you decide to withdraw from a case, especially a personal injury lawsuit, or your client wishes to switch attorneys, you must be sure to make effective withdrawal. Simply ceasing to represent the client in name is not enough. Illinois lawyers should either withdraw their appearance or be certain that an order for substitution of counsel is entered. One easy way to tell if your withdrawal is effective is whether or not you still receive notices of motions and pleadings: if you do, check to verify that your withdrawal or order of substitution was entered. Failure to properly withdraw from a case may expose you to malpractice allegations or a judge could find that you are still counsel of record.

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Vaccines are a very common part of life for all of us and certainly a least favorite experience for children. However, vaccines can also bring about personal injury lawsuit for vaccine injuries and may be a source of medical malpractice lawsuits medical malpractice lawsuitsIt is important that attorney be sure to advise their clients about the availability of compensation for a vaccine-related injury or death. Check the National Childhood Vaccine Injury Act of 1986 which governs this ethical obligation.

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Service of a Summons is an essential part of a personal injury lawsuit starting off on the right foot. Supreme Court Rule 103(b) allows a court to dismiss the case if the plaintiff does not exercise reasonable diligence to secure the service of summons. This means that an attorney who gets a “return not found” or has the service letter bounce back must follow up with legitimate attempts to get the summons served. Often, a skip chaser or a special process service can help and affect valid service. However, if you let the suit languish without attempting to serve summons for an unreasonable period there may be no remedy.

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