Articles Posted in Tips for Lawyers

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Tennehill v. Costello, No. 1-09-0868 (5-10-10) affirmed a case in which the plaintiff sued her neighbor for shoulder injuries sustained while helping neighbor walk to her car after Defendant had a medical emergency and insisted that Plaintiff drive her to the hospital rather than call ambulance. Rescue doctrine, which may be asserted by a rescuer to recover damages from a defendant who places herself in danger, is inapplicable as this Defendant did not place herself in a dangerous situation where she knew others might or could attempt to rescue her, but instead asked or insisted that Plaintiff drive her to hospital. Plaintiff failed to establish any duty of Defendant, and injury to Plaintiff was not foreseeable, thus summary judgment for Defendant properly granted. This Illinois case will impact personal injury law.

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Wilfong v. L.J. Dodd Construction, No. 2-09-0347 (5-27-10) affirmed that a a project manager on elementary school construction project, was injured when he fell while walking across ruts on muddy construction site, while talking on his cell phone about his work. Summary judgment properly granted, as ruts were open and obvious, given Plaintiff’s testimony that tops of ruts were unstable and he was looking at ruts to determine his next step and was familiar with how to avoid ruts on jobsite. Distraction exception did not apply as distraction was solely within Plaintiff’s own creation, because Plaintiff chose to continue walking on ruts while on his phone, and distraction was not reasonably foreseeable by Defendants. Court did not err in giving little or no weight to expert’s statement offered with motion to reconsider, as no indication that statement was not available prior to summary judgment hearing. This case will impact premises liability in Illinois.

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Callaghan v. The Village of Clarendon Hills, No. 2-09-0482 (4-29-10) affirmed a case that found that the plaintiff was injured when she slipped and fell on ice and snow while walking on public sidewalk near a public park within a residential area. Court properly dismissed negligence count, as Tort Immunity Act contemplates determination of immunity for bounded public property, and sidewalk here was immediately adjacent to a park; and Park District maintained it, indicative of intended use for recreational purposes. Court properly dismissed willful and wanton count, as facts alleged do not support inference of willful and wanton conduct; Defendants did not do anything to protect some persons and not others, and did not intentionally remove any safety device. This Illinois case will impact slip and fall cases.

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Hemminger v. Nehring, No. 3-08-0751 (4-8-10) affirmed a case where a plaintiff filed a wrongful death suit on behalf of his wife. This was based on a misinterpretation of Pap smear and failure to diagnose cervical cancer, which was diagnosed as Stage III six months later. Pap smear is “screening test” that is part of the diagnostic process, thus immunity provisions of Sections 6-105 and 6-106 of Tort Immunity Act apply. The court found that the summary judgment proper as to Defendants cytotechnician and physician, who were employed by municipal hospital and were within scope of their employment. This case will impact wrongful death law in Illinois.

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Green v. Northwest Community Hospital, No. 1-09-2233 (4-28-10) reversed the Circuit Court decision and found that voluntary dismissal order falls within exception to general rule against claim-splitting, where court’s order stated “plaintiff is granted leave to voluntarily dismiss with leave to reinstate as a matter of right”, and thus clearly and unmistakably granted leave to refile the action. Court properly dismissed claims for wrongful death, survival, and loss of consortium, which reached final judgment in first action, but erred in dismissing consumer fraud and health care fraud claims, which did not reach final judgment in first action because order expressly reserved right to refile. This Illinois case will impact wrongful death law.

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House Bill 5999 creates four rules to use in the substance of the dispute. (1) The arbitrators must decide the dispute following any rules of law that are chosen by the parties as applicable to the substance of the dispute. Requires that any designation of the law or legal system of a given jurisdiction to be construed, as directly referring to the substantive law of that jurisdiction and not to its conflict of law rules. (2) If the parties do not make such a designation, the arbitrators must apply the law as determined by the conflict of laws rules that they consider applicable. (3) The arbitrators must decide according to the strict rules of law unless the parties have expressly authorized some other standard. (4) In all cases, the arbitrators must decide according to the terms of the contract and take into account the usages of the trade applicable to the transaction. This case will impact all Illnois law.

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Oezle v. Score Sports Venutre, No. 1-0901476 (3-30-10) affirmed a case where the plaintiff was injured when she caught her foot on a rope exercise ladder hidden underneath curtain behind tennis court while playing at indoor tennis club where she was member. Plaintiff had duty to read release which she signed as part of her membership agreement. Ladder was “equipment”, thus covered by release, and injury was foreseeable, thus grant of summary judgment on negligence count proper. Question of fact precluded summary judgment on willful and wanton count as to Defendant’s efforts to prevent danger. Responses to request to admit which are boilerplate lack of information responses but without further explanation are admissions. This case will impact personal injury cases.

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Wagner v. Eagle Food Centers, Inc., No. 1-08-3213 (2-10-10) found that a plaintiff, a resident of Will County, slipped and fell at grocery store in Joliet, and filed in Will County a premises liability claim against store and, later, products liability claims against Clorox, the manufacturer of the Tilex product which was claimed to have leaked from package and spilled onto floor, and a related medical malpractice claim. Plaintiffs voluntarily dismissed seventh amended complaint in Will County, the day after court ordered Plaintiffs to answer Defendants’ supplemental interrogatories as to factual basis for claims that product leaked or had insufficient tamper resistance. One year later, Plaintiffs filed complaint in Cook County. Judge improperly denied Defendants’ forum non conveniens motion to dismiss or transfer, as private interest factors and public interest factors strongly favored Will County venue. Location of treating physician, and of parties’ attorneys, is to be given little weight. This first district Illinois case will impact slip and fall law.

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Dobyns v. Chung, M.D., No. 5-07-0568 (3-19-10) affirmed a wrongful death case filed by a widower alleging over-prescribing of narcotics over long term and failure to adequately warn about risk of harm from taking several kinds together. Decedent was age 31 and spouse and two minor sons survived. Jury verdict for $100,000, was reduced by 50% for contributory negligence. Defense counsel had remarked during closing that if there were liability verdict of about $1 million would be fair, but jury was to disregard attorneys’ statements if not based on evidence, and it was an opinion. The appellate court determined that the jury verdict was not manifestly inadequate and cannot make scientific assessment of verdict by comparison to other verdicts in state. This case will impact Illinois wrongful death law.

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House Bill 5381 will allow the circuit court clerk to give “notice” to a party by “hard copy” or by “electronic notice” under a uniform and standard policy adopted by the clerk. Electronic notice has the same effect as notice by hard copy if this statute and clerk’s policies are complied with. The bill gives the recipient an option to receive notices by hard copy or electronic notice by registering an electronic address with the clerk. The bill requires the clerk to keep a copy of the electronic content and a delivery receipt. This bill will impact Illinois law.