Image via Wikipedia In Turner v. Illinois Gas Company, No. 2-08-0878, the plaintiffs brought suit after they were seriously injured when their rental home was destroyed by a natural gas explosion. The plaintiffs alleged that the defendant was liable for their injuries due to its negligent failure to inspect the gas piping in their home and warn them of any dangers posed by the defective condition of the pipes. The plaintiffs had never noticed or complained of a dangerous condition, but asserted that the defendant had constructive notice of the problem due to a service call made 17 months prior to the explosion. The defendant brought a motion for summary judgment on the grounds that it owed the plaintiffs no duty to inspect for a defect or warn the plaintiffs of a defect. The court first addressed the defendants duty of care–that it owed a duty of care while the gas was under its control, but that duty was limited to when the gas was in the company’s own pipes, not the consumer’s pipes or fittings. However, the court also acknowledged an exception to that general rule: â€œ â€˜Where it appears that a gas company has knowledge that gas is escaping in a building occupied by one of its consumers, it becomes the duty of the gas company to shut off the gas supply until the necessary repairs have been made although the defective pipe or apparatus does not belong to the company and is not in its charge or custody.â€™ â€œ Adams, 211 Ill.2d at 48, 284 Ill.Dec. 302, 809 N.E.2d 1248, quoting Clare, 356 Ill. at 243-44, 190 N.E. 278. The plaintiffs conceded that the defendant had no actual notice of the defect, but argued that the defendant had constructive notice of the defective pipe.Â The Second District Appellate Court of Illinois rejected their argument, holding that the defendant was not liable for their injuries: Defendant had neither actual nor constructive knowledge of the defect. Dray, defendant’s technician, visited the residence only once, 17 months before the explosion, and he entered the basement only to relight the pilot lights. Jarl built the residence, Warren Plumbing Company installed the gas piping, plaintiffs lived there more than a year, and Stefanie noticed a gas smell on the night before the explosion but did not notify defendant. Defendant had no notice of the defective installation of the gas piping or of[READ MORE…]
Image by Mykl Roventine via Flickr The United States District Court for the Central District of Illinois addressed the issue of a store owner’s liability for a shopper’s slip and fall allegedly caused by a loose floor mat inÂ Gentry v. Shop’n Save Warehouse Foods, Inc., — F.Supp.2d —-, 2010 WL 1433410 (April 7, 2010). In Gentry, the injured plaintiff was an 84 year old women who slipped and fell after her toe got caught on the corner of a floor mat located in the defendant’s store. She and her husband brought a personal injury lawsuit alleging that the store was liable for her injuries. The store moved for summary judgment on the grounds that, in part, it had no notice of the dangerous condition. The Court first addressed the premises liability claim, to the extent that it had been alleged in the Complaint, and concluded that the defendant’s motion for summary judgment in regard to that claim should be granted since the plaintiff failed to establish notice of the alleged dangerous condition: This is the general standard for premises liability. The landowner must know of the condition or would have discovered the condition through the exercise of reasonable care. The Plaintiffs have presented no evidence that the Defendant has received complaints about the floor mat or its location. Mrs. Gentry did not look at the mat as she entered the store. The Plaintiffs have not presented any testimony from any person that the floor mat was flipped or curled before Mrs. Gentry’s fall. The Plaintiffs have offered no evidence that the mat had any defects, that someone had tripped on the mat before, or that the mat had previously become buckled due to wetness or heavy foot traffic. Regarding the negligence claim, the court also concluded that the plaintiffs failed to meet its burden of proof: The Plaintiffs can avoid the notice requirement only if they can establish that the mats were negligently placed on the floors by the agents of the Defendant, not merely by showing that they were placed by the agents of the Defendant… Therefore, the remaining question is whether the Defendant used ordinary mats in a reasonable fashion. When the use of mats is not reasonable, a grocery store may be held liable for negligent acts and omissions related to installing and maintaining floor mats. In this case, there is no evidence that the floor[READ MORE…]
Image by Getty Images via Daylife In April, the Third District Appellate Court of Illinois handed down an interesting decision regarding the issue of whether the appellant timely served the summons in his appeal of a decision issued by the Illinois Workers’ Compensation Commission. In Hagemann v. Illinois Workers’ Compensation Commission, No. 3–08–0989WC, one of the defendant-appellees (Sherman)Â asserted that pursuant to Supreme Court Rule 103(b), the plaintiff-appellant (Hageman) failed to exercise due diligence in serving the summons. In reaching its decision, the court noted that precedent had established a list of factors to consider when ruling on a motion to dismiss under this provision, including:Â 1) the length of time used to obtain service of process, 2) the activities of the plaintiff, 3) the plaintiff’s knowledge of the defendant’s location, 4) the ease with which the defendant’s whereabouts could have been ascertained, 5) the defendant’s actual knowledge of pendency of the action as a result of ineffective service, 6)Â special circumstances that would affect the plaintiff’s efforts, and 7) actual service on the defendant. The court also noted that lack of prejudice is another consideration, but not necessarily a dispositive one. Applying these factors to the case at hand, the court noted that Hagemann’s counsel timely filed a request for summons with the circuit court, provided the clerk with the appropriate information needed to effect service and sent copies of the appellate documents via fax to opposing counsel during the appropriate time period. However, the circuit court clerk failed to timely issue the summons, erroneously believing that the county sheriff could not effect service of process on people located outside of the county. Service was eventually effected a few months later. The court concluded that despite the delay, Hagemann’s attorney was sufficiently diligent in effecting service: (T)he totality of the circumstances, as discussed above, supports the judge’s decision that Hagemann was reasonably diligent. Although service of summons was delayed, it cannot be reasonably said that Hagemann engaged in intentional delay for the purpose of indefinitely postponing service. We find no reversible error. 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.
Image by Thomas Roche via Flickr The United States District Court for the Northern District of Illinois, in Show v. Ford Motor Company, No. 08 C 3081, considered the issue of whether, in the absence of expert testimony, the plaintiffs established a prima facie case for strict liability against an automobile manufacturer. In Show, the plaintiffs, a driver and passenger who were injured in a car accident, brought a products liability action against vehicle manufacturer alleging strict liability and negligence claims. In their Complaint they asserted that driver’s vehicle rolled over after a low-speed collision with another car because it was defective and unreasonably dangerous. At issue was whether the defendant’s motion for summary judgment should be granted. The motion was based on the defendant’s assertion that the plaintiffs were required disclose an expert witness who would testify regarding the defective condition of the vehicle. The plaintiffs disclosed two expert witnesses, one who would testify that the injuries were caused by the force of the roll over accident and another who would testify regarding loss of income due to the injuries. The plaintiffs claimed that an additional expert regarding the defective condition of the vehicle was unnecessary since they were proceeding under the “consumer expectation” test to prove their case. The Court disagreed with the plaintiffs, concluding that because their claim involved technical knowledge beyond the common knowledge and experience of jurors, expert testimony regarding the defect was required: Therefore, to make out a prima facie case of strict liability under the consumer-expectation test involving a complex product and an intervening event, Plaintiffs need a qualified expert to testify to a defective condition in the Explorer at the time it left Defendant’s control, that caused it to roll over under these circumstances. Despite numerous discovery extensions, Plaintiffs have only offered experts who will testify that Show’s injuries were caused by the forces of the rollover and that he sustained a loss of income as a result. Discovery has now closed, and Plaintiffs will not be given additional extensions. Therefore, Plaintiffs have failed to produce sufficient evidence to establish a prima facie case for their strict liability claims, and summary judgment is warranted on these claims. This was an unfortunate outcome for the plaintiffs in this matter. However, this decision is worthy of note since it offers important guidance to plaintiffs counsel who litigate product liability matters. Howard Ankin of Ankin[READ MORE…]
Image by retropc via Flickr Beginning in 2004, drywall manufactured in China was imported to the United States and installed primarily in the walls of houses in the South. The drywall was used in many homes and buildings in New Orleans during the efforts to rebuild after Hurricane Katrina. Unfortunately, the Chinese drywall was defective and breaks down in hot, humid weather, emitting noxious fumes which smell like rotten eggs. The emissions can cause copper and other metal surfaces, such as pipes and wires, to turn black and powdery and also irritate the respiratory tracts of residents, ranging from sinus problems, asthma and nosebleeds. As discussed in this Wall Street Journal blog post, lawsuits that have been filed against the Chinese drywall manufacturers are increasingly being resolved in favor of the homeowners. For example, 7 Virginia families obtained a $2.6 million dollar judgment in one case and more recently, a federal judge in Louisiana ruled in favor of a Lousiana family: (The judge) awarded the Hernandez family $164,000 for the costs of pulling out the drywallâ€“known for emitting a â€˜rotten eggâ€™ odorâ€“and replacing the wiring, plumbing and appliances that had been ruined. Theyâ€™ll also be reimbursed by Knauf Plasterboard Tianjin Co. Ltd, known as KPT, for legal and other fees. On the heels of that ruling, as reported in a News-press.com article, Knauf has approached builders in several states and offered to settle pending Chinese drywall lawsuits: Knauf is offering $18 or $19 per square foot, said Allison Grant, a Boca Raton attorney who represents numerous drywall cases in Cape Coral and about 500 drywall homeowners across Florida. â€œKnauf is trying to squeeze out the homeowner and go straight to the builder,â€ Grant said. One reason may be that the buildersâ€™ cost to fix the drywall will be less than a homeownerâ€™s after hiring a contractor. If it’s true that Knauf is attempting to bypass the homeowners in an effort to reduce their costs and liability, it’s certainly a sad state of affairs. The injured homeowners who are suffering both physically and monetarily, through no fault of their own, certainly deserve better than that. Hopefully the judges presiding over the cases pending in the various courts will see to it that the homeowners–those who have clearly suffered the most due to the defective drywall–will be adequately compensated for their losses and injuries. Howard Ankin of Ankin Law Office LLC (www.ankinlaw.com)[READ MORE…]
Image by cobalt123 via Flickr Last month a tragic explosion in a Massey coal mine in West Virginia resulted in the deaths of 29 coal miners. In mid-April, as reported in this New York Times article, the first wrongful death lawsuit was filed on behalf of a widow of one of the miners.Â Marlene Griffith alleged in the lawsuit that her husband, William Griffith, was killed due to the mine’s negligence and history of safety violations at the site. Since that claim was filed, as detailed in this NPR article, the mine company offered cash settlements to most of the surviving family members of each of the dead miners. However, those families that had already initiated a lawsuit or had indicated that they were considering doing so were not offered settlements: Three people familiar with the offers say they involve $3 million in cash payments to each family. Some of the families have filed wrongful death suits or have indicated they intend to sue. At least two of those families were not offered settlements. The New York Times reported in late April that the FBI is also investigating the blast and may file criminal charges related to the explosion. One issue being investigated is whether the ventilation systems functioned properly: (I)nvestigators (were) especially interested in the mineâ€™s ventilation system, specifically whether certain air-lock doors and a storage shaft known as the glory hole were properly sealed to control the flow of clean and contaminated air. The West Virginia mine where the explosion occurred had been cited for methane violations 44 times in the 2 years before the blast. These citations are arguably evidence of both the mine’s civil and criminal liability for the explosions. However,Â criminal prosecutions won’t bring back the lives of the miners who were tragically lost in this explosion and monetary settlements will do little to ease the pain and suffering of their grieving loved ones. In the future, perhaps Massey Energy and other mining companies will ensure that they adhere to safety standards thus preventing another devastating explosion from ever occurring in the first place. 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 by jypsygen via Flickr Ronald Miller at the Maryland Personal Injury Lawyer blog recently discussed an interesting Chicago Law Review article, Dollars and Death, 72 U. Chi. L. Rev. 537 (2005). The article is authored by Eric Posner (Judge Richard Posner’s son) and Cass Sunstein. In the article, the authors examine ways to make wrongful death compensation more uniform by requiring more standardized calculation methods on a nationwide basis. The authors suggest that in order to accomplish this goal, wrongful death damages should be calculated using certain assigned amounts for different values and then factor in other considerations, such as how long grief exists following the death. For example, the authors posit that grief arguably ends when the surviving spouse re-marries. While the ideas expressed in the article are interesting, they are impracticable at best.Â The authors attempt to take a cookie cutter approach to damages in wrongful death claims, which are both emotionally charged and very fact specific, is simply untenable. As Miller adeptly notes in his blog post: I understand the goal of uniformity and I even understand the formula. The problem is homogenizing the equation for everyone. Values vary because juries vary but also because facts vary wildly from case to case. A precise mathematical formula might simplify matters and make wrongful death damages more uniform on a nationwide basis, but would hardly do justice to the surviving spouse. It’s nearly impossible to assign a monetary amount to the grief, loss and anguish that is experienced when a loved one dies. This task is best left to the jurors, who are in a position to empathize with the pain caused by the premature loss of a spouse. Mathematical formulas, neat and clean as they may be, are simply insufficient. 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.
Family of Worker Killed on the Job can Sue Third Party – â€˜Logo Liabilityâ€™ Imposed on Owner of Truck
By Howard Ankin Illinois attorneys might be surprised by the recent holding of the state Appellate Court that allowed tort damages in a case involving injuries on the job. The ruling shows that workersâ€™ comp attorneys should routinely assess all potential third party claims before concluding the sole source of recovery is under the Workersâ€™ Compensation Act. The well-known general rule is an employee injured by a co-employee during the course of employment cannot sue the co-employee or employer for damages in tort. Instead, the exclusive remedy for the employee is under the Illinois Workersâ€™ Compensation Act.[i] The public policy underlying this law is to provide efficient recovery for petitioners in exchange for limited exposure to employers.[ii] However, the decision in U.S. Bank v. Lindsey and Carmichael Leasing Co., Inc.[iii] shows that public policy under federal law trumps Illinois state law and provides a surprising outcome. In the case, the plaintiff was injured by a co-worker negligently operating a licensed interstate truck displaying a company logo. Interstate trucking law allowed recovery in tort against the co-worker and the owner of the truck. When an employee is injured by the negligent operation of a licensed interstate carrier, the truck owner can be vicariously liable for the actions of the truck driver â€“ even if the driver is not employed by the truck owner.[iv] Delivery gone awry In U.S. Bank v. Lindsey, a driver backing up a delivery truck struck and killed a co-employee who was unloading supplies from another truck in a dock area. Both men worked for Open Kitchens, a food delivery company based in Chicago. The truck was owned by a third party, Carmichaels Leasing Co., Inc., which leased the truck to Open Kitchens. The driver was guided by another co-employee to a stop, but then the truck suddenly lurched backwards pinning and crushing the decedent against another truck. Evidence at trial indicated the decedent had a high level of morphine in his bloodstream when the accident occurred, and Carmichael Leasing argued that the decedent was impaired as a result. After trial, a Cook County jury returned a $3 million verdict against Carmichael Leasing, although the jury reduced the verdict by 50 percent because of the decedentâ€™s contributory negligence. The trial court judge rejected Carmichael Leasingâ€™s argument that it was immune from suit under the Illinois Workersâ€™ Compensation Act, and denied its motions for directed verdict and for judgment[READ MORE…]
Image via Wikipedia In Hardlannert v. Illinois Central Railroad Company, No. 1-09-1291 (April 19, 2010) Cook Co., 1st Div., the plaintiff, a railroad conductor, was injured on the job when he attempted to open a train knuckle, which is the device that allows railcars to be coupled. He filed suit under the Federal Employer’s Liability Act (FELA) (45 U.S.C. Â§51 through 60 (2000)) and the Federal Safety Appliance Act (FSAA) (49 U.S.C. Â§20301 et seq. (2000)), alleging that the train knuckle was defective and that the defect caused his back injury. The defendant did not dispute that the train knuckle was defective, but nevertheless made a motion for partial summary judgment. The motion was based upon the defendant’s assertion that the FSAA didn’t apply since railcar was not “in use”, as required by the FSAA, or alternatively, that the plaintiff’s injury was caused by his own negligence. The court rejected the defendant’s arguments and concluded that the trial court properly denied the motion for summary judgment: (N)o question of material fact is raised that Hardlannert acted negligently while attempting to open the connecting knuckle of railcar WC 84867…The defective condition of the connecting knuckle constituted a violation of the FSAA by Illinois Central…(and) no reasonable jury could find his negligence to be the sole cause of his back injury because the defective condition of the pin lifter to the knuckle of railcar WC 84867 is causally related to Hardlannert’s injury. Further, because the coupling provision of the FSAA applies to the unit of equipment at issue in this case, an individual railcar, railcar WC 84867 was “in use” at the time of the incident. This decision rightly allowed the lawsuit to go forward so that a jury could determine the issue of whether the employer’s negligence caused the plaintiff’s debilitating back injury. 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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