Last week, the United States Court of Appeals for the Fifth Circuit handed down an important workers’ compensation decision. In Bollinger Shipyards, Inc. v Director, Office of Workersâ€™ Compensation Programs, No. 09-60095, the Fifth Circuit considered whether Jorge Rodriguez, an undocumented immigran who was injured on the job, was entitled to benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA). The employer asserted that the injured worker was not entitled to benefits since his “injury caused him no loss of wage-earning capacity because he had no legal wage-earning capacity at the time he was injured.” The Fifth Circuit disagreed and upheld the ALJ’s ruling–that Rodriguez was entitled to receive benefits under the LHWCA. In reaching its decision, the court noted: (T)he remedy provided by the LHWCA is merely a substitute for the negligence claim that an employee could otherwise bring against his employer in tort. As one court has observed, â€œit would not only be illogical but it would also serve no discernable purpose to accord illegal aliens the right to bring affirmative claims in tort for personal injury but deny them the right to pursue the substitutionary remedy for personal injuries sustained in the workplace.â€ Finally, the Court emphasized that: 1) workersâ€™ compensation under the LHWCA is a non-discretionary remedy, 2) the LHWCA was enacted as a substitute for tort claims, and 3) the LHWCA expressly provides for the award of benefits to nonresident aliens. This is a decision that simply makes sense–any other holding would encourage employers to hire illegal immigrants in order to circumvent the important protections provided by the LHWCA. Howard Ankin of Ankin Law Office LLC (www.ankinlaw.com) handlesÂ workersâ€™ compensation and personal injury cases. Mr. Ankin can be reached at (312) 346-8780 and firstname.lastname@example.org.
Earlier this month, in Fox v. Hayes, No. 08-3736, the United States Court of Appeals for the Seventh Circuit issued a decision of interest to Illinois personal injury attorneys. Although the complaint focused on claims of false arrest arising from the arrest of a father in relation to his 3 year old child’s death, the court also considered the issue of whether the jury verdict which awarded $2.7 million for the wife’s loss of consortium was excessive. A loss of consortium claims is a legal claim made by the non-injured spouse for damages resulting from the injured spouse being unable to provide the benefits of a family relationship, such as intimacy, affection, company, and sexual relations. In this case, the accused husband was arrested and incarcerated for 8 months while charges were pending. The charges against him were ultimately dismissed. The Seventh Circuit concluded that the damages awarded for loss of consortium in this case were not excessive: During Kevin’s incarceration Melissa was separated from her main source of emotional support at a time when she was coping with extraordinary grief. She was left alone to help Tyler deal with his own grief and fear and was thrust into the position of being a single parent to him at a time when Tyler most needed the support of both parents. She was forced to endure Riley’s birthday and the first anniversary of her death without Kevin, whom she testified was the only person who could understand those experiences. In short, the eight months of Kevin’s incarceration came at a crucial moment in their marriage, and accordingly there is a rational connection between the evidence and the substantial award. See Naeem, 444 F.3d at 611. And although the award undeniably is high, it is not out of line with other loss of consortium verdicts upheld by Illinois courts. See, e.g., Velarde v. Ill. Central R.R. Co., 354 Ill.App.3d 523, 543, 289 Ill.Dec. 529, 820 N.E.2d 37 (Ill.App.Ct.2004) (upholding $3.5 million loss of consortium claim); DeYoung v. Alpha Constr. Co., 186 Ill.App.3d 758, 765-67, 134 Ill.Dec. 513, 542 N.E.2d 859 (Ill.App.Ct.1989) (upholding $3.6 million loss of society award for death of 75-year-old). Given the circumstances, we do not think the district court abused its discretion in concluding that the $2.7 million award is not â€œmonstrously excessive.â€ This is a decision that Illinois personal injury attorneys should take note of–and one that represents[READ MORE…]
If a child is injured while at school, who bears responsibility for the injuries? Do children assume the risk of horseplay while at school? As reported at Coverage Counsel, the New York Court of Appeals issued a decision in early April on this issue.Â In Trupia v. Lake George Cent. School Dist., the infant plaintiff was injured after sliding down a banister located on school grounds.Â The Court held that school children do not assume the risks of injuries arising from horseplay that occur on school premises. The Court explained: No suitably compelling policy justification has been advanced to permit an assertion of assumption of risk in the present circumstances…Allowing the defense here would have particularly unfortunate consequences. Little would remain of an educational institution’s obligation adequately to supervise the children in its charge (see Mirand v City of New York, 84 NY2d 44, 49 ) if school children could generally be deemed to have consented in advance to risks of their misconduct…We do not hold that children may never assume the risks of activities, such as athletics, in which they freely and knowingly engage, either in or out of school…except in the context of pursuits both unusually risky and beneficial that the defendant has in some non-culpable way enabled. In Illinois, the law is similar to New York’s–unless there is evidence of willful and wanton misconduct school districts are immune from liability for personal injuries sustained by students during school activities.(See: Weiss v. Collinsville Community Unit School Dist. No. 10, 119 Ill. App. 3d 68, 74 Ill. Dec. 893, 456 N.E.2d 614, 14 Ed. Law Rep. 768 (5th Dist. 1983). Thus, schools are generally liable to injured students only where the act that causes the injury was done intentionally or committed under circumstances exhibiting a reckless disregard for the safety of others. Howard Ankin of Ankin Law Office LLC (www.ankinlaw.com) handlesÂ workersâ€™ compensation and personal injury cases. Mr. Ankin can be reached at (312) 346-8780 and email@example.com.
Hereâ€™s what other personal injury and workers’ compensation lawyers have been talking about over the past few weeks: Court Finds Mild TBI Meets Tort-Claims Verbal Threshold – Traumatic Brain Injury Law Blog City of New York Wins Appellate Court Dismissal of $1,000,000 Knee Injury Verdict – Plaintiff’s Testimony was False and Jury was Irrational – New York Injury Cases Blog Is Your Persoanl Injury Client on Facebook? – Day on Torts NJ Appellate Court Upholds $30.3 Million Mesothelioma Verdict – Workers’ Compensation Blog Personal Injury Lawyers Take On Disney’s Tower Of Terror – Avvo blog Trial Lessons from Tiger Woods – Plaintiff Trial Lawyer Tips Howard Ankin of Ankin Law Office LLC (www.ankinlaw.com) handlesÂ workersâ€™ compensation and personal injury cases. Mr. Ankin can be reached at (312) 346-8780 and firstname.lastname@example.org.
Image via Wikipedia Damage caps for personal injury lawsuits have been in the news a lot lately. For example, just a few weeks ago we posted about the recent Illinois Supreme Court decision, which held that the law capping recoveries in medical malpractice lawsuits was unconstitutional. A similar law was at issue earlier this month in Maryland.Â On April 2nd, the Maryland Court of Appeals heard arguments in a case regarding personal injury damage caps. In the case being appealed, the parents of a young child who had drowned received a jury award of $4 million for their pain and suffering, but the damages were reduced to $1 million by operation of the damage cap laws. The specific issue considered by the court was whether jury awards for pain and suffering damage caps were constitutional. As explained in this Baltimore Sun article, caps in personal injury and medical malpractice lawsuits are more common than not in many states: Maryland is one of at least 36 states that have established such ceilings in at least some kinds of cases – such as medical malpractice, personal injury or wrongful-death suits – according to the National Association of Mutual Insurance Companies. The industry group filed a brief in the Freeds’ appeal supporting Maryland’s cap. Limits on awards have compiled a mixed record in the courts. State courts in Alaska and Ohio have upheld restrictions in those states. This year, courts in Illinois and Georgia have overturned caps in those states. The article also explains the reason for the opposition to caps on damages for pain and suffering–that they discriminate against those who are most severely injured: A plaintiff whose award falls within the limit may collect the full judgment, but one who is awarded an amount exceeding the cap for having suffered severe harm – the death of a child, for example, or a life of physical pain – may not. In our experience, cases where children are injured are the most heart wrenching, since it is extremely difficult to predict how much income a young child would have earned over the course of his or her lifetime. Thus the amount of economic damages that can be determined is usually minimal and pain and suffering damages are far more likely to awarded by a jury. So, in cases where a child is severely injured or dies, limits on damages for pain and suffering[READ MORE…]
A few weeks ago we posted about Illinois’ ban of texting while driving and noted that more and more jurisdictions are cracking down on this dangerous practice. And, as the New York Times reports, the Federal Government is now joining the band wagon and is proposing that a recently enacted ban on texting by commercial drivers be made permanent. As explained in the article, commercial transportation industry officials support the ban: Trucking and bus industry officials have said they support the ban on text-messaging and many companies already have policies. The government prohibition does not apply to onboard devices that allow dispatchers to send text messages to truck drivers, but industry officials say most of the devices have mechanisms preventing their use while a truck is moving. Texting while driving is a dangerous practice and, as reported in a recent University of Utah study, one that very few individuals–only 2.5% of those who participated in the study can do so safely: First, at the applied level, our results suggest that the overwhelming majority of people suffer significant bi-directional impairment from using a cell phone while driving. Second, our results suggest that there are supertaskers in our midst: rare but intriguing individuals with extraordinary multi-tasking ability. The study also noted that most people believe–incorrectly–that they are one of the lucky few who are able to multi-task effectively while driving. This faulty belief is likely the cause of the many accidents occurring on our roadways because of distracted drivers who text while driving. As we urged in our prior post, don’t text while driving, if for no other reason than the fact that in many jurisdictions, including Illinois, it’s illegal. And, even if it’s not illegal where you live, why risk the safety of you, your loved ones and everyone else on the road? You can send that text once you arrive at your destination. Safety isÂ always more important than convenience. Howard Ankin of Ankin Law Office LLC (www.ankinlaw.com) handlesÂ workersâ€™ compensation and personal injury cases. Mr. Ankin can be reached at (312) 346-8780 and email@example.com.
Anyone whoâ€™s been injured in an accident is understandably eager to settle their personal injury lawsuit. The pressure to settle can be enormous, especially if you are out of a job or working reduced hours because of the injuries, while at the same time facing mounting medical bills and other expenses. But itâ€™s very important to resist the temptation to accept a low-ball settlement offer early in a case. Hereâ€™s why. A popular misconception is that personal injury lawsuits take too long to resolve because parties are dragging their heels and the court system is inefficient. But the fact is it typically takes one to two years for an injured person to reach their maximum medical improvement. Only then will you know the full value of your case. Ideally, you should never settle until you know the full extent of your injuries. Not only that, your attorney needs time to fully develop your case by interviewing and deposing fact witnesses, obtaining expert testimony on your behalf, and gathering all of your medical records and other documents to help prove your case. A well-developed case is much more likely to settle at a fair value compared to a claim that has incomplete information. Insurance companies usually are in no hurry to settle. They offer low settlements and continue to defend cases in an attempt to minimize their financial exposure. The goal is to pressure injured individuals into accepting settlements that donâ€™t fully compensate them for their injuries. The party who caused the accident and who is liable for your injuries may claim to have only so much insurance coverage. However, there may be additional insurance coverage, but it often takes time for your attorney to track it down. There are legal reasons not to rush into a settlement as well. For instance, letâ€™s say you are injured in a motor vehicle accident when a truck driver negligently crashes into you. Letâ€™s assume the truck driver is employed by a company that owns the truck. He is considered an agent of the truck company, which means the truck company is legally responsible for the driverâ€™s actions on the job. The law says that if you settle a case with an agent, you automatically settle with the master as well. Therefore, itâ€™s important to wait to settle with all responsible parties in order to maximize your recovery. There are also tactical reasons to[READ MORE…]
In March, the Fourth District of Illinois handed down Pickel v. Springfield Stallions, No. 4-09-0490 (March 23, 2010) Sangamon Co. (APPLETON). This case addressed this issue of whether the various defendants, all of whom operated a sporting stadium as partners, were liable for injuries sustained by the plaintiff while watching an indoor football game. In this case, the plaintiff was a spectator during a Springfield Stallions football game and was injured when “a football player ran out of bounds, fell over a wall separating the spectators from the playing field, and collided with her.” She asserted that the defendants were liable under a theory of negligence in failing to protect her from injury. In their defense, the defendants alleged that, pursuant to Karas v. Strevell, 227 Ill. 2d 440, 884 N.E.2d 122 (2008) and Pfister v. Shusta, 167 Ill. 2d 417, 657 N.E.2d 1013 (1995), she was required to plead willful and wanton conduct rather than simple negligence, since football is an inherentlyÂ violent sport. The trial court agreed with the defendants and dismissed the complaint with prejudice. However, 4th District disagreed and reinstated the complaint, concluding that the doctrine of primary assumption of risk was inapplicable due to the plaintiff’s status as a spectator, rather than a player. As the 4th District explained: We agree with plaintiff that her status as a spectator, rather than a participant, makes Karas, Pfister, and similar cases fundamentally distinguishable. According to the amended complaint, defendants were possessors of the Prairie Capital Convention Center (Convention Center) in Springfield, and they held the premises open to members of the public who paid a fee to watch the football game. Defendants’ duty, therefore, was well established under the common law: a duty to take reasonable action to protect the invitees against an unreasonable risk of harm. Acting reasonably meant refraining from negligence. Accordingly, the court held that the defendants owed her duty of care to take reasonable precautions for safety, such as installing adequately sturdy walls or issuing appropriate warnings. Howard Ankin of Ankin Law Office LLC (www.ankinlaw.com) handlesÂ workersâ€™ compensation and personal injury cases. Mr. Ankin can be reached at (312) 346-8780 and firstname.lastname@example.org.
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