Articles Posted in Injury Law

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On May 18, 2009, plaintiff’s 90-year-old mother was admitted to Peoria’s Proctor Hospital for a rectal prolapse. During Kathryn’s hospitalization, she experienced numerous complications. On May 29, 2009, Kathryn died. In March, 2010, plaintiff received Kathryn’s medical records. In April 2011, plaintiff received an oral opinion that Drs. Williamson and Salimath were negligent in treating Kathryn. On May 10, 2011, plaintiff filed a complaint against those doctors. On February 28, 2013, Kathryn’s CT scans were reviewed upon plaintiff’s request. Dr. Dachman opined that Dr. Rhode’s failure to properly identify certain findings caused or contributed to the injury and death of Kathryn. In March 2013, plaintiff filed suit under Wrongful Death Act (740 ILCS 180/1) and the Survival Act (755 ILCS 5/27-6), claiming medical malpractice against Rhode. Defendants argued that plaintiff had sufficient information more than two years before he filed his complaint to put him on inquiry to determine whether actionable conduct was involved, so that, even if the “discovery rule” applied, the complaint was untimely. The trial court dismissed the complaint with prejudice. A divided appellate court affirmed, reasoning that the discovery rule had no application to wrongful death or survival actions because both causes of action were legislatively created and not found at common law and that, even if that rule were applied, plaintiff’s complaint would be untimely. The Illinois Supreme Court reversed, finding the discovery rule applicable. A factual determination must be made as to when the statute of limitations began to run. Plaintiff filed his lawsuit less than two years after receiving the initial verbal medical expert report and within the four-year statute of repose. View "Moon v. Rhode" on Justia Law

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Bayer, an ironworker with Area Erectors, which was hired by Garbe to build Panduit’s warehouse facilities, fell and is now quadriplegic. Bayer filed a claim against Area under the Workers’ Compensation Act (820 ILCS 305/1). Area began making temporary total disability payments and payments for Bayer’s medical expenses. Bayer also sued Panduit, Garbe, and a structural engineering company for negligence. Panduit and Garbe sued Area under the Joint Tortfeasor Contribution Act (740 ILCS 100/0.01). Bayer's settlement with Area was approved, so Area was discharged from contribution liability. Other claims were resolved, leaving only Bayer’s action for negligence against Panduit. Judgment ($64 million) was entered in Bayer’s favor. Under the Workers’ Compensation Act (820 ILCS 305/5(b)), Area was entitled to recover out of that judgment the amount of compensation it paid or would pay to Bayer, including amounts paid or to be paid under the Act for medical expenses, vocational rehabilitation, and temporary partial disability benefits. The court suspended future workers’ compensation payments. The Act provides that where, “the services of an attorney at law of the employee . . . have . . . substantially contributed to the procurement ... of the proceeds out of which the employer is reimbursed, then, in the absence of other agreement, the employer shall pay such attorney 25% of the gross amount of such reimbursement,” 820 ILCS 305/5(b), so Bayer’s lawyers were entitled to fees equal to 25% of the amount Area had paid for lost wages, medical expenses, and other compensable items before payments were suspended. Building on its 1990 holding that the gross amount of reimbursement subject to attorney fees includes both benefits paid before the third-party recovery and the amount of such benefits the employer will be relieved from paying in the future by reason of the third-party action, the Illinois Supreme Court held that the value of future medical care should be included in this calculation. View "Bayer v. Panduit Corp." on Justia Law

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In 2011, Henderson Square Condominium Association sued, alleging: breach of the implied warranty of habitability, fraud, negligence, breach of the Chicago Municipal Code’s prohibition against misrepresenting material facts in marketing and selling real estate, and breach of a fiduciary duty. The defendants were developers that entered into a contract with the city for a mixed use project, the Lincoln-Belmont-Ashland Redevelopment Project. Sales in the project had begun in 1996. The trial court dismissed, finding that plaintiffs failed to adequately plead the Chicago Municipal Code violation and breach of fiduciary duty and that counts were time-barred under the Code of Civil Procedure (735 ILCS 5/13-214). The appellate court reversed. The Illinois Supreme Court affirmed. A condominium association generally has standing to pursue claims that affect the unit owners or the common elements. A question of fact remains as to whether defendants’ failure to speak about construction deficiencies or to adequately fund reserves, coupled with earlier alleged misrepresentations, amounted to fraudulent concealment for purposes of exceptions to the limitation and repose periods. It is possible that minor repairs, along with the limited nature of water infiltration, reasonably delayed plaintiffs’ hiring of professional contractors to open the wall and discover latent defects. The date when plaintiffs reasonably should have known that an injury occurred and that it was wrongfully caused was a question of fact. View "Henderson Square Condo. Ass'n v. LAB Townhomes, LLC" on Justia Law

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The Colemans lived in unincorporated Will County’s Sugar Creek area, for which separate entities handled police emergencies and fire and ambulance services. On June 7, 2008, Coretta called 911. She was connected to operator Zan. Coretta stated that she could not breathe. Zan transferred the call to Orland dispatcher Johnson. Although procedures required Zan to communicate the nature of Coretta’s emergency, Zan hung up as soon as the call was transferred. Johnson asked questions but received no response. Johnson hung up and called Coretta’s number but got a busy signal. Johnson testified that dispatchers are trained to call the transferring agency if more information is needed, but he did not. East Joliet ambulance 524 was dispatched, for an “unknown emergency.” Unable to enter or get a response, the crew looked in the windows, but did not see anyone. Neighbors approached. The crew said that they could not make a forced entry without police. Their supervisor ordered them back to service. Neighbors called 911. After confusion about the address, a crew entered the house 41 minutes after the initial call. Coretta, age 58, died. The family sued. The circuit court granted all defendants summary judgment, finding that the public duty rule applied and that defendants owed Coretta no special duty. The Illinois Supreme Court reversed, abolishing the public duty rule and remanding for determination of whether defendants may be held liable for alleged willful and wanton conduct. The public policy behind the judicially created public duty rule and its exception have largely been supplanted by enactment of statutory immunities. View "Coleman v. E. Joliet Fire Prot. Dist." on Justia Law

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From 1966-1970, Folta was a shipping clerk and product tester for Ferro Engineering and was exposed to products containing asbestos. In 2011, Folta was diagnosed with mesothelioma, a disease associated with asbestos exposure. He sued Ferro, alleging negligence. Ferro moved to dismiss under ILCS 5/2-619(a)(9), arguing that the claimswere barred by the exclusive remedy provisions of the Workers’ Compensation Act (820 ILCS 305/5(a)) and the Workers’ Occupational Diseases Act (820 ILCS 310/5(a)). Ferro maintained that his action fell outside the exclusive remedy provisions because his claims were not “compensable” under the statutes: the symptoms did not manifest until more than 40 years after his last exposure to asbestos, and any potential asbestos-related compensation claim was barred under the 25-year limitation provision. The circuit court dismissed, holding that the action was barred by the exclusive remedy provisions. The appellate court reversed, reasoning that the term “compensability” must relate to the “ability to recover under the Act.” The Illinois Supreme Court reinstated the dismissal, noting that the acts do not prevent an employee from seeking a remedy against other third parties for an injury or disease and that Folta had also sued manufacturers. View "Folta v. Ferro Eng'g" on Justia Law

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Haney rented a car from Enterprise. While being driven by Artley, the vehicle collided with an oncoming car operated by Nelson. Nelson sued Artley, who was uninsured, and obtained a default judgment. Nelson brought a supplementary action against Enterprise. Enterprise denied that it was in possession of any property of Artley and raised affirmative defenses to recovery: that Artley was not its customer, was not listed on its rental agreement with Haney and did not have Haney’s permission to use the vehicle. Haney had reported the vehicle as stolen. Enterprise contended in the alternative that it was self-insured, that its total financial responsibility for the liability of any authorized driver was $100,000 per occurrence, and that it had paid $50,000 to settle another claim from the same accident and had tendered $50,000 to the court to allocate between Nelson and a third injured party, exhausting its liability limits. Enterprise also argued that there was nothing in its rental agreement nor in Illinois statutes to obligate Enterprise to pay costs or post-judgment interest connected with the default judgment. The Illinois Supreme Court agreed with the trial court that, under a 2005 appellate court decision, Enterprise’s liability was limited to the minimum coverage provisions applicable to rental car companies that meet their financial responsibility obligations through the purchase of an insurance policy and not the full amount of the default judgment. View "Nelson v. Artley" on Justia Law

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In 2008 the Seymours filed a Chapter 13 bankruptcy petition. In 2010 the Seymours filed a personal injury action, based on a 2010 automobile accident that occurred while Seymour was being transported in an ambulance. A 2010 plan modification entailed a reduction in the Seymours’s monthly payment amount based on an allegation that Seymour was unable to work and was only receiving workers’ compensation payments. The Seymours never apprised the bankruptcy court that their circumstances had changed after the 2010 modification. Defendants in the injury action successfully obtained summary judgment, based on estoppel because the Seymours failed to disclose their personal injury action in the bankruptcy proceeding. The Illinois Supreme Court reversed,The fact that the Seymours had a legal duty to disclose this suit and failed to do so does not establish intent to deceive or manipulate the bankruptcy court. The 2010 motion to modify the bankruptcy plan did not evince their awareness of the need to disclose the personal injury cause of action. View "Seymour v. Collins" on Justia Law

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In 2010, O’Toole tripped and fell on a paved pathway at Brookfield Zoo and sustained injuries. In 2012, she filed a single-count negligence complaint against the Chicago Zoological Society, alleging that it breached its duty to inspect and maintain the pathway, proximately causing her damages. The Society sought dismissal, arguing that the one-year limitations period of section 8-101(a) of the Tort Immunity Act (745 ILCS 10/8-101(a)), rather than the two-year limitations period of section 13-202 of the Code of Civil Procedure (735 ILCS 5/13-202), applied and time-barred O’Toole’s complaint. The trial court dismissed, finding that the Society fell under the Act’s definition of “[l]ocal public entity” as a “not-for-profit corporation organized for the purpose of conducting public business.” The appellate court and Illinois Supreme Court disagreed, noting that the Society conceded that it was not a department or agency of any government; that it received less than half of its funding from tax proceeds; that its employees were not appointed or paid by the Forest Preserve District and were not covered by any public pension or workers compensation funds; and that the vast majority of its trustees were not District officials. View "O'Toole v. Chicago Zoological Soc'y" on Justia Law

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McVey sued for injuries she sustained after a waitress dropped a tray on her foot. Memorial Hospital of Carbondale treated her. McVey settled the lawsuit for $7,500, then filed a petition to adjudicate liens. The hospital’s lien was $2,891.64. In addition to attorney fees, McVey allegedly incurred litigation costs of $846.66 in securing the settlement. The trial court entered an order recognizing that under the Health Care Services Lien Act (Act) (770 ILCS 23/10), no individual licensed category of health care professional or health care providers may receive more than one-third of the award or settlement, so that the hospital could recover no more than $2,500. The court acknowledged precedent holding, that in order to ensure that a plaintiff receives 30% of the judgment, the computation of the amount available to health care providers should not begin until costs associated with bringing the case and securing payment have been deducted, but refused to deduct attorney fees and costs before calculating the amount available to the hospital. The appellate court reversed and remanded. The Illinois Supreme Court reversed, holding that hospitals are not required to contribute to the costs of litigation. View "McVey v. M.L.K. Enters., LLC" on Justia Law

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Husband and wife (who did not speak English) entered into a written one-year lease, took possession of the apartment, and tendered the security deposit and first month’s rent. Ten days into the lease, they received “an official 30 days notice” of eviction, stating that “[c]onstruction begins June 10,” and that they did not qualify for an unspecified “new program.” Several additional efforts to force the family to move followed; their tender of rent was refused. They purportedly sought legal advice and were told that the landlord could not unilaterally terminate the lease. They reported feeling discriminated against and harassed; they were confused, depressed, and anxious. Demolition began while the family was occupying the apartment. Husband allegedly told wife that he could not tolerate the situation any longer. The following day, he committed suicide in the apartment. Wife sought damages for intentional infliction of emotional distress, wrongful eviction, breach of contract; under the Wrongful Death Act; and under the survival statute. The trial court dismissed the wrongful death and related survival actions, finding that “wrongful death via suicide” is not cognizable in Illinois. The Illinois Supreme Court agreed. Despite an ostensible connection between severe emotional distress and suicide, suicide may result from a complex combination of factors. It is “rare” that suicide would not break the chain of causation and bar a wrongful death action, even where the plaintiff alleges the defendant inflicted severe emotional distress. Husband’s suicide was not a reasonably foreseeable result of defendant’s alleged conduct in breaking the lease and pressuring the family to vacate. View "Turcios v. DeBruler Co." on Justia Law