In Anderson v. Zamir, No. 5-08-0542, the Appellate Court of Illinois, Fifth District, took the unusual step of reversing a jury verdict and remanding the case to the trial court for a new trial on the issue of damages. In Anderson, the plaintiff was injured in a car accident with the defendant, in which the defendant’s vehicle rear-ended Anderson’s. Anderson’s head hit the steering wheel and she later suffered from neck tenderness and pain, lower back pain and a cervical MRI revealed a tear in the labrum of her left shoulder. She underwent orthoscopic shoulder surgery to repair the tear in her labrum, which left a few small scars on her shoulder. She then required physical therapy to improve her injury and strengthen her injured shoulder. The defendant admitted liability for the car accident and the case went to trial on the issue of damages only. The defendants conceded liability for the cervical injury, but contest liability for the shoulder injury, which they asserted was not caused by the accident. Following the trial, in which evidence of medical bills amounting to $28,804 was introduced, the jury awarded Anderson only $12,500, of which $5,000 was for medical bills and $7,500 was for pain and suffering. In other words, it appeared that the jury only awarded her damages for the cervical injury and ignored the shoulder injury. After reviewing the evidence, the court concluded that the evidence at trial did not support the jury’s decision to fail to compensate Anderson for her shoulder in jury. The court explained that the only evidence offered at trial regarding her shoulder injury was not effectively refuted by the defense: The only medical evidence offered at the trial was presented by Tiffany’s attorney in her case. The defendants’ attorney merely cross-examined Tiffany’s physicians and presented no independent evaluation of Tiffany’s injuries, her medical care, her medical bills, or her prognosis. A review of the cross-examination of Tiffany’s physicians reflects that neither physician wavered in his opinion relative to the cause of the shoulder injury…(A)ll the medical testimony introduced at the trial supported the theory that the shoulder injury was causally connected to the motor vehicle accident. No evidence contradicting this connection was introduced. The witnesses were not impeached, and they stood by their opinions of causation. Upon reviewing the testimony, we do not conclude that this medical testimony is inherently improbable. Thus, the court reversed the[READ MORE…]
The Appellate Court of Illinois, First District, recently addressed the issue of whether a release signed by a plaintiff before she embarked on a paid tour of Chicago precluded her from bringing a personal injury lawsuit based on injuries that she sustained during the tour. The facts in the case, Hamer v. City Segway Tours of Chicago, LLC, No. 1-08-3371, are relatively simple. The plaintiff signed up for a tour with the defendant. During the tour, all participants rode their own Segway and, before the tour, were taught by employees of the defendant how to use the Segway. The plaintiff was injured during the tour when she fell off of the Segway, as she attempted to ride it up a small, grassy hill. She then sued, claiming that the defendant was liable for her injuries since it allowed her to ride in a dangerous location and failed to instruct her of the danger posed by that location. Prior to the tour, the plaintiff signed a release that included the following language: â€œI do hereby * * * release * * * the CST Indemnitees from any and all losses, claims, suits, causes of action, etc. for * * * personal injuries * * * I may have, suffer or sustain while riding or operating the Segway, whether arising from my own acts, actions, activities and/or omissions or those of others, except only those arising solely from the gross negligence of the CST Indemnitees. * * * I understand and acknowledge that this * * * release will apply even in circumstances where a CST Indemnitee may be * * * released and absolved from the consequences of their own negligence. I * * * understand that riding a Segway will * * * expose me to various hazards and risks, including, among others, * * * dangers arising from irregular road and pavement surfaces, * * * which present a risk of injury, including * * * the risk that I could fall and * * * suffer contusions, lacerations, sprains, fractures, and other, potentially more serious, injuries.â€ (Emphasis in original.) According to the release, the â€œCST Indemmteesâ€ include all CST employees, including its officers and tour guides. In reaching its decision regarding the enforceability of the release, the court noted that Illinois does not favor exculpatory clauses in contracts and strictly construes these types of clauses against the party[READ MORE…]
Tannehill v. Costello, No. 1-09-0868, addressed this unusual issue. In it, the Appellate Court, First District of Illinois considered whether the defendant owed her neighbor a duty of care under the rescue doctrine. The facts in Tannehill are simple. The defendant was at home, recovering from surgery, when she experienced pain that concerned her. She called her neighbor, Tannehill, who then came over to assist her. The defendant refused to allow Tannehill to call an ambulance and insisted that Tannehill drive her to the hospital. As Tannehill assisted the defendant in walking to her car, the shoulder that she was using to support the defendant was injured. Tannehill then brought this personal injury lawsuit seeking damages for her shoulder injury. At issue was the applicability of the rescue doctrine under Illinois law. The court first explained the underlying purpose of the rescue doctrine: (It) provides that it is always foreseeable that someone may attempt to rescue a person who has been placed in a dangerous position and that the rescuer may incur injuries in doing so. Therefore, if the defendant is negligent towards the rescuee, he is also negligent toward the rescuer. It then concluded that the rescue doctrine did not apply since the defendant hadn’t placed herself in a dangerous situation” and thus “the claim that defendant was liable for plaintiff’s alleged injuries merely because she requested and/or demanded that plaintiff assist her, and plaintiff agreed to do so, failed to establish, as a matter of law, any duty on defendant’s part.” The Court also noted that not only did a duty not exist, the injuries in question weren’t foreseeable. Accordingly, the court dismissed the lawsuit. 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 workersâ€™ compensation lawyers have been talking about over the past few weeks: “Aggravation of Prior Knee Injury Compensable in Workers Compensation” Workers’ Compensation Blog “Michael Jackson Wrongful Death Lawsuit” Maryland Injury Lawyer Blog “What They Donâ€™t Teach You In Law School About Trial” Plaintiff Trial Lawyer Tips “Judge: no â€œemotional distressâ€ for Empire State-jumper” Overlawyered “Government Recalls More Childrenâ€™s Jewelry Due to Toxic Cadmium” Bob Kraft’s P.I.S.S.D. blog
In late June, the U.S. Consumer Product Safety Commission (CPSC) announced a recall of over 2 million baby cribs. The suspect cribs were manufactured between 2000 and 2009 and most of the recalled cribs have “drop-sides,” which were intended to make it easier for the parent to reach the baby. However, that very same feature is the basis for the recall. The drop-side can, in some cases, malfunction and create a strangulation and/or suffocation risk for the baby. As explained in this Chicago-Tribune blog post: “Most of the cribs were drop-sides, which have a side rail that moves up and down so parents can lift children from them more easily,” the AP story said. “That movable side, however, can malfunction or detach from the crib, creating a dangerous gap where babies’ heads can become trapped, leading to suffocation or strangulation.” “No deaths were linked to the recalled cribs, but there were more than 250 reports of drop-sides detaching or failing and at least 16 entrapments of infants,” according to the AP story. “In one case, a child was found unconscious and later hospitalized.” The brands involved in the recall include Evenflo, Delta Enterprises Corp., Child Craft, Jardine Enterprises, LaJobi, Million Dollar Baby and Simmons Juvenile Products Inc. Consumers are being issued free repair kits by the original crib manufacturer.Â The CPSC warns consumers not to attempt to fix the cribs using homemade remedies. Additional information about the recall, including lists of the model numbers of the recalled cribs, can be found here at the CPSC’s website. 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.
Simpkins v. CSX Corp., No 5-07-0346, raises the novel issue of whether an employer owes a duty to the spouse of an employee who contracted mesothelioma as a result of her exposure to her husband’s work clothes. This was an issue of first impression for the Fifth District of the Appellate Court of Illinois. The complaint in Simpkins included allegations that, from 1958-1964, Annette Simpkins was exposed to asbestos that her husband brought home on his work clothes.Â They divorced in 1964, at which point the asbestos exposure ceased. Unfortunately, she died of mesothelioma cancer while the lawsuit was pending and her daughter was appointed Special Administrator of her estate and substituted in her place as the plaintiff. In reaching its decision as to whether a duty to the plaintiff existed, the court noted that in Illinois, a duty exists if there is a relationship between the parties that would impose upon the defendant an obligation to act reasonably to the benefit of the plaintiff. The court then set forth theÂ four factors to be considered in determining whether a duty exists: Whether a relationship exists between the parties that will justify the imposition of a duty depends upon four factors: (1) the foreseeability of the harm, (2) the likelihood of the injury, (3) the magnitude of the burden involved in guarding against the harm, and (4) the consequences of placing on the defendant the duty to protect against the harm. Marshall, 222 Ill.2d at 436-37, 305 Ill.Dec. 897, 856 N.E.2d at 1057; Ward v. K mart Corp., 136 Ill.2d 132, 140-41, 143 Ill.Dec. 288, 554 N.E.2d 223, 226-27 (1990). Because this was an issue of first impression, the court reviewed cases from other states that had addressed a similar issue and found the rationale of decisions handed down by Tennessee and New Jersey courts to be the most convincing. After carefully reviewing the cases, the court concluded that it was foreseeable that immediate family members might be exposed to asbestos from the clothes of a worker expose to asbestos and that the steps that the defendant-employer could have taken to reduce the possibility of exposure was not unduly burdensome. Accordingly, the court concluded that the defendant owed the plaintiff a duty to protect her from “take-home exposure” to asbestos. However, the court noted that the finding of a duty does not amount to a finding of liability and that[READ MORE…]
In March we discussed the fact that the Supreme Court of the United heard oral arguments in McDonald v. City of Chicago (08-1521). At issue in McDonald was 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. Last week, the Court issued its decision essentially reaffirming that the right to bear arms is a fundamental right. Justice Alito, writing for the majority, stated: It is clear that the Framers . . . counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. However, as explained in this Washington Post article, the decision was deliberately vague and raised more questions that it answered. In fact, it didn’t even specifically address the Chicago gun laws at issue in the case: The 5 to 4 decision does not strike down any gun-control laws, nor does it elaborate on what kind of laws would offend the Constitution. One justice predicted that an “avalanche” of lawsuits would be filed across the country asking federal judges to define the boundaries of gun ownership and government regulation. You can learn more about this decision from the following sources: SCOTUS wiki: Chicago v. McDonald SCOTUSblog: McDonald v. City of Chicago and the Standard of Review for Gun Control Laws Wikipedia: McDonald v. City of Chicago 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.
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