Image by billjacobus1 via Flickr Last week, the Ohio Supreme Court upheld an Ohio statute that limited injured workers’ ability to bring lawsuits against employers. The court considered two related cases which challenged the constitutionality ofÂ aÂ 2005 state law that placed restrictions on the types of intentional torts lawsuits that workers could file while simultaneously collecting workers’ compensation benefits. The court ultimately ruled that the law passed constitutional muster. As explained this Plain Dealer article: The rulings mean injured workers — who remain entitled to receiving workers’ compensation benefits through the state — will have a much more difficult time bringing injury cases against private employers. The court analyzed the competing interests in its decision: As this court has often recognized, workers’ compensation laws are the result of a unique mutual compromise between employees and employers, in which employees give up their common-law remedy and accept possibly lower monetary recovery, but with greater assurance that they will receive reasonable compensation for their injury. Employers in turn give up common-law defenses but are protected from unlimited liability.” Illinois law is similar to the law upheld by the Ohio Supreme Court regarding the ability of workers to seek redress from employers for workplace injuries.Â Years ago, the Illinois legislature reached a similar conclusion after balancing the public policy considerations with the end result being that Illinois employees are generally limited to recovery for work-related injuries via workers’ compensation laws.
Image by romulusnr via Flickr The Chicago Sun-Times recently explored Chicago’s “Traffic Court” and the systemic failures that often result in the dismissal of tickets for moving violations, even where the driver who was issued the ticket was undoubtedly guilty. As explained in the article: If a police officer did not see the traffic violation that led to an accident, he’s not the witness. He collects the information from the people involved and writes the ticket. The victim has to go to court to make the charge stick. But most witnesses in traffic cases skip court, probably because in most cases the person who hit them took care of the property damage or injury through insurance…One reason why victims might skip court is that the penalties for traffic violations are rarely severe…(or) witnesses might find it hard to take the time off work to go to court, especially in today’s economy. It’s an unfortunate situation. While it is understandable that witnesses to an accident might be reluctant to take the time out of their day to appear in court and have nothing to gain personally from testifying, Chicagoans as a whole pay the price since.Â It’s likely that many dangerous drivers are repeat offenders, but manage to slip under the radar time and time again, as their multiple, repeated moving violations are dismissed due to the non-appearance of eyewitnesses. Perhaps the system would be more effective if there were an incentive built in that would encourage eyewitnesses to testify. As it is, aside from those with a vested interest in the outcome of a traffic violation, only the altruistic few appear to testify in Traffic Court. Chicagoans deserve better.
Image by Benimoto via Flickr Hereâ€™s what other personal injury and workerâ€™s compensation bloggers have been talking about over the past few weeks: Federal Judge Tosses $100 Million Punitive Damages Award Against BP–California Punitive Damages Blog Plaintiff is entitled to summary judgment on the issue of liability despite the fact that his own negligence might remain an open question–New York Personal Injury Law Blog More Proof that the Big Lie is a Big Lie: Medical Malpractice Payments Continue to Fall–Day on Torts SC Supremes Overturn $18M Plaintiff’s Verdict in Auto Acceleration Case–Point of Law Legislation Introduced to Reform OSHA to Make the Workplace Safer–Workers’ Compensation Law Blog
Image by Viewmaker via Flickr Earlier this month, it was reported that 9/11 rescuers and cleanup crews finally reached a settlement in regard to their claims against New York City. Over 10,000 plaintiffs sought compensation for injuries, many of which were respiratory-related, alleged to have been incurred while working at ground zero. The settlement amount of up to $675.5 million was to be apportioned among the plaintiffs based upon the severity of their ailments and their levels of exposure to toxic contaminants while working at ground zero. However, late last week, as reported in this New York Times article, Judge Hellerstein rejected the proposed settlement on the grounds that it did not provide the plaintiffs with sufficient compensation. This is a bitterly disputed lawsuit, as explained in a recent New York Times article: The settlement, which took two years to negotiate, raises the prospect of an end to years of complex and politically charged litigation that has pitted angry victims against city officials, who questioned the validity of some claims and argued that the city should be immune from liability…The city argued that it was immune from damages in cases involving a national emergency or a civil defense disaster. It also questioned the connection between the illnesses and ground zero and cast doubt on many of the claims… It is undisputed that the unique nature of this disaster resulted in a series of unusual issues and claims not generally encountered. The destruction of the Twin Towers was such an unprecedented event that it’s difficult to conceive of actions that the City could have reasonably taken to prepare for it.Â Many believe that City did the best it could under the circumstances in face of such a disastrous and unfathomable tragedy. However, the heroic emergency responders and clean up crews should certainly receive compensation for their injuries despite the unique circumstances presented by this tragedy. This settlement attempted to balance these competing considerations, with end goal to allow parties involved to heal and move forward with their lives. However, now the fate of this lawsuit lies in the hands of the judge.
Image by alvi2047 via Flickr The United States Supreme Court will soon hear Bruesewitz v. Wyeth,Â No. 09-152, a case in which the parents of a child who suffered injuries after receiving her 6-month DPT vaccine are seeking to overturn the current administrative processes established for lawsuits of this type. (Hat tip: Day on Torts) Most people are unaware of the fact that the ability to seek recovery for injuries related to vaccines is limited by the National Childhood Vaccine Injury Act. This Act sets forth an administrative process that must be followed for claims stemming from vaccine-related injuries. The intent behind the Act was to ensure a stable market supply, and to provide cost-effective arbitration for vaccine injury claims. The rationale behind the passage of this Act boils down to balancing our societal interest in reducing the occurrences of childhood diseases against the likelihood that that there will occasionally be negative reactions to these life saving vaccines. The issue in Brueswitz is: Whether Section 22(b)(1) of the National Childhood Vaccine Injury Act of 1986 â€” which expressly preempts certain design defect claims against vaccine manufacturers â€œif the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warningâ€ â€” preempts all vaccine design defect claims, regardless whether the vaccineâ€™s side effects were unavoidable. In other words, should the Act protect companies that produce vaccines where the vaccine design defects and subsequent injuries were likely due to negligence in the preparation and storage of the vaccine, as opposed to unavoidable side effects unrelated to quality control in the production of the vaccine? Another interesting issue is whether a decision in favor of the defendant would essentially give pharmaceutical companies the green light to lower standards in vaccine production. This is definitely a case worthy of note and one that may have negative long term ramifications should the court conclude that the Act covers all design defects, regardless of their cause.
Image by purpleslog via Flickr Lawyers take note: on February 17, 2010, the HITECH Act (“Health Information Technology for Economic and Clinical Health Act”) went into effect. This act extends HIPAA confidentiality, monitoring and compliance tracking requirements to certain classes of businesses (“Business Associates” as defined by the Act) that receive personal health information from, among others, doctors, hospitals and insurance companies. The Act requires that more stringent procedures be in place to protect health care data and also allows for harsher penalties for failure to comply with the requirements of the Act. A non-compliant law firm is now considered to be directly liable to the federal government and may face civil penalties of up to $50,000 per violation. Generally speaking, the new rules apply primarily to attorneys who represent “covered entities” including doctors, health insurers and hospitals.Â And, as Jennifer A. Stiller explains here : The new rules do not apply to attorneys who merely interact with healthcare insurers or providers in the context of representing clients who are not themselves healthcare insurers or providers. For example, a personal injury lawyer who subpoenas a person’s medical record, an estates lawyer drafting a medical power of attorney, or a business lawyer negotiating a deal between his non-healthcare client and a hospital or health insurance company would generally not be considered to be Business Associates. Given the severe penalties for failure to comply with this Act, lawyers would be wise to review the requirements of the Act and determine if they are subject to its requirements. Should you wish to learn more, the article referred to above, “Lawyers Beware: Take action now to protect healthcare information or risk stiff penalties!” written by Jennifer A. Stiller, provides a great summary of the Act and offers further guidance for lawyers, should you wish to learn more.
Image via Wikipedia U.S. Bank v. Lindsey, 920 N.E.2d 515 (2009), is an unusual case recently handed down by the Illinois First Appellate District. In this case, the Estate of a truck unloader killed when a truck backed into him brought negligence action against truck driver and the truck leasing company. The theory of liability against the truck leasing company was that it was liable pursuant to the “logo liability doctrine” and was thus vicariously liable for the actions of the other defendant, the truck driver. One interesting aspect of this case was the defendant truck leasing company assertion of two defenses: 1) that the defendant truck driver was immune from liability pursuant to the operation of the Workers’ Compensation Act and thus the truck leasing company could not be vicariously liable and 2) the decedent and the truck driver were considered to be co-employees of the truck leasing company pursuant to the Interstate Commerce Act and thus the Workers’ Compensation Act prevented recovery in tort from the truck leasing company. The Court rejected these arguments: We hold that under the fact of this case that the employee relationship referred to between Lindsey and Carmichael, via logo liability, is a legal fiction that neither has an effect on nor is affected by the Act but, rather, is simply a designation by virtue of the Interstate Commerce Act for purposes of protecting the public. Carmichael’s assertion that it is immune from liability because decedent was a â€œstatutory employeeâ€ must therefore fail. In other words, the Court determined that “logo liability” under the Interstate Commerce Act usurped the conventionalÂ understanding pursuant to Workers’ Compensation Law.Â This ruling thus permitted a third-party case to proceed where it would not have otherwise been allowed under the Workers’ Compensation Law.Â The unusual facts of this caseÂ resulted in a very interesting and atypical holding.
Image via Wikipedia McDonald v. City of Chicago (08-1521) is a highly publicized United States Supreme Court case that many guns rights activists are watching carefully. This case has generated an enormous amount of attention from both sides of the issue and, as a result, over 50 amicus briefs have been filed with the Court. At issue in this case is whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment, thus making it applicable to the States and invalidating ordinances prohibiting possession of handguns in the home. On March 2, 2010, oral arguments were heard by the Court, a transcript of which can be found here. This decision comes on the tails of the Court’s ground breaking Second Amendment decision nearly 2 years ago in District of Columbia v. Heller. It is expected that whatever the determinationÂ in this case, the Court will be just as divided as it was in the Heller decision. You can learn more about this case from the following recent articles: Chicago Sun-Times: Mayor Daley ‘Optimistic’ Supreme Court Will Uphold City’s Handgun Ban (Mar. 1, 2010) New York Times: Tailgating Outside the Supreme Court, Without the Cars (Mar. 2, 2010) Wall Street Journal: The Second Amendment and the States (Mar. 2, 2010) Bloomberg: Give Us a Right to Be Free of Those Who Bear Arms (Mar. 3, 2010) Wall Street Journal: New Ammunition for Gun Rights (Mar. 3, 2010) Washington Post: Supreme Court Does More Wrangling With Gun Laws (Mar. 3, 2010)
Image via Wikipedia Traumatic brain injuries have been in the news a lot lately, as more is learned about the long term effects of these injuries on professional athletes or anyone injured as a result of a blow to the head. As reported in this LA Times article, the NFL is now focusing on preventing brain injuries from the get to.Â Players invited to the NFL scouting combine will be required to undergo baseline brain activity exams, which will then be used as a point of comparison against tests taken after a head injury. Similarly, the NCAA plans to hold a “concussion summit” later this year in response to concerns about head injuries and, as reported in this article (NewOrleans.com) the National Federation of State High School Associations (NFHS) Football Rules Committee enacted new rules last month regarding head injuries that “will require any player that shows signs, symptoms, or behaviors associated with a concussion to be removed from a game and not return to play unless cleared by an appropriate health-care professional.” Mild traumatic brain injuries, also known as concussions, are now believed to be anything but “mild”, as reported in this recent article from ScienceDaily. As explained in the article: Although mTBI affects over 1 million people each year in the United States, it is generally ignored as a major health issue. However, this “mild” form of injury induces persisting neurological and cognitive problems in many of these patients, exacting an enormous emotional and financial toll on society. As the article suggests, this type of injury is far more serious than was initially thought. For that reason, as noted in the article, because “brain pathology can be detected after a concussion calls for much more extensive efforts to prevent, diagnose, and treat mild traumatic brain injury.” It’s good to know that sports organizations of all levels are fianlly taking notice of this serious issue and enacting preventative measures to protect our athletes. They deserve it.
Image via Wikipedia So, is a golfer liable for injuries to an adjacent homeowner resulting from an errant gold ball? In Illinois, the answer may be “yes”, whereas in New York and California, the answer may be “no.” Both California and New York have passed laws stating that those who purchase homes adjacent to a golf course assume the risk of injury from an errant golf ball. Illinois has no such law and the liability of a golfer whose golf ball hit another person is now at issue in a case pending in DuPage County. The facts of the case are explained in this Chicago Breaking News article: On Aug. 25, 2005, a golf ball from the adjacent St. Andrews Golf & County Club in West Chicago hit Lillian Demo on the head as she worked in her yard. Naperville businessman Raymond Kinney, an “experienced golfer” according to a lawsuit, struck the ball on the 17th tee as his foursome participated in the club’s annual DuPage County Republican Day. Demo sued in 2007, contending Kinney was negligent by failing to aim properly, failing to properly execute the swing of his golf club and failing to warn her the ball was approaching. She contends she suffers migraine headaches as a result. The case in DuPage county is now moving toward jury trial following a key ruling by Judge John Elsner. The judge concluded that “a golfer owes a duty of ordinary care to persons lawfully on property adjacent to a golf course” and thus the jury may consider whether Kinney was negligent in this case. Until Illinois adopts a law similar to those enacted in California and New York, golfers should be aware of the potential liability inherent in their sport: injuring an innocent bystander. And, as in this case, simply yelling “fore” may not be enough to evade liability.
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