Chicago Personal Injury Lawyer Blog

A recent Cook County lawsuit was reviewed by the Illinois Appellate Court, which found that the trial judge had erred in dismissing the plaintiff's personal injury claim. While the judge had held that the case facts supported a summary judgment in favor of the defendant hospital, the appellate court found that there was sufficient evidence to support some of the plaintiff's claims. Caburnay v. Norwegian American Hospital, 2011 IL App. (1st) 101740 (Dec. 23, 2011).

The injury in question occurred at Norwegian American Hospital. The plaintiff, Dr. Fernando Caburnay, was an anesthesiologist at the hospital and was waiting for an elevator at the time of his accident. It was a rainy day and a 6 ft. x 10 ft. rubber mat had been placed in front of the elevator. As Dr. Caburnay was stepping back from pressing the call button, he tripped backwards over the mat. The back of his head hit a couch, and he fractured his spine, leaving him a quadriplegic.

Dr. Caburnay filed a personal injury lawsuit against Norwegian American Hospital, the basis of which was their negligence in creating a dangerous situation in the form of the rubber and fabric mat. Dr. Caburnay testified that the mat was the cause of his injury; he tripped after catching his foot on a fold in the mat and falling backwards. However, the hospital denied liability for Dr. Caburnay's injuries and filed a motion for summary judgment in which it asked the judge to dismiss the claims against Norwegian American Hospital. The judge complied, at which point Dr. Caburnay filed an appeal.

Continue reading "Illinois Appellate Court Reverses Finding for Hospital in Doctor's Injury Case - Caburnay v. Norwegian American Hospital" »

The Illinois Appellate Court ruled on a premise liability claim involving a building owner's duty to maintain clear sidewalks and driveways. At issue was whether or not the plaintiff's amended complaint raised new issues of fact in Kristopher McCarthy v. R&M Holdings & Quality, No. 1-10-2778 (February 2, 2012). While the trial court held that it did not, the appellate court found that it did and remanded the case to the trial court for further proceedings.

McCarthy was brought after the plaintiff slipped and fell on the way to his parked car. McCarthy had just finished his shift at the Harwood Heights Cosco on an icy December day. His car was parked in the parking lot next to Cosco's parking lot. According to McCarthy, he was walking through the snow and did not realize that there was a layer of ice underneath; he fell and dislocated his right shoulder and right knee.

McCarthy brought his premise liability lawsuit against R&M Holdings & Quality, the owner of the commercial building and property. In his complaint he alleged that the icy patch he fell on was part of the run-off from the building's roof and gutters. There was a downspout that ran directly into the parking lot; McCarthy alleged that this downspout was the source of the water that formed the ice that he fell on and therefore was caused by the building owners and not a natural hazard.

In his first complaint, McCarthy cited ordinary negligence and per se negligence under the Harwood Heights Municipal Code, §15.24.100. While ordinary negligence requires a party to prove that someone acted in an unreasonable or wanton manner, per se negligence simply requires a party to show that an entity violated an established law or code. In response, the defendant property owner filed a motion for summary judgement on the basis that the case could be decided without a trial. The judge dismissed the plaintiff's original claims, but allowed the plaintiff to file an amended complaint.

Continue reading "Illinois Appellate Court Allows Premises Liability Case to Proceed Under Safety Code - McCarthy v. R&M Holdings & Quality" »

A recent Illinois Appellate Court decision provided additional clarification regarding the admissibility of photographic evidence. At issue was whether or not a judge had correctly allowed photographs taken at the scene of an accident to be admitted into evidence during a Cook County personal injury trial. The appellate court ruled that judge had and upheld the jury verdict in Patricia Williamson v. Luis Morales, 2012 IL App. (1st) 110324-U.

Williamson involved a 2006 car accident in which the defendant Luis Morales rear-ended the plaintiff Patricia Williamson's vehicle. And while Morales admitted to having caused the accident, there was some debate as to the extent of Williamson's injuries. Williamson refused treatment by paramedics at the accident scene, but then did head to the Christ Medical Center Emergency Room just one hour later. And even though her x-rays did not show any fractures, she continued to experience pain and treatment with a chiropractor for four to five months following the accident.

When Williamson brought her personal injury claim against Morales he denied that the car accident was responsible for the extent of Williamson's injuries and her lost time from work. And when Williamson's attorney attempted to produce photographs from the accident scene as a way to demonstrate the severity and nature of the car accident, Morales's attorney objected on the basis that they were not relevant and could not be introduced unless in conjunction with expert testimony. The court agreed and stipulated that the photographs could not be introduced unless the defendant first opened the door to their submission.

Continue reading "Photographic Evidence May Be Found Relevant Without Expert Testimony - Williamson v. Morales" »

The Illinois Appellate Court affirmed a circuit court's ruling regarding the venue in a railroad employee's personal injury lawsuit. While the railroad company had wanted to transfer the case to Mississippi, the Illinois courts supported the plaintiff's choice of Illinois as the case's venue. Fennell v. Illinois Central Railroad Company, 2012 WL 19455 (Ill.App.2012).

The plaintiff, Walter Fennell, had been working for Illinois Central Railroad Company for over 35 years. In 2009, Fennell filed a Federal Employers Liability Act (FELA) lawsuit against Illinois Central Railroad. The FELA lawsuit alleged that Fennell was exposed to asbestos, diesel exhaust, environmental tobacco smoke, sand, and toxic fumes, dust, and gases during the tenure of his employment, which in turn resulted in Fennell's current respiratory problems. Fennell was seeking compensation for the health problems he allegedly developed during the course of his employment with Illinois Central.

Shortly after Fennell was filed, Illinois Central sought to have the case dismissed under the doctrine of interstate forum non conveniens, which is a legal doctrine that allows a court to deny its jurisdiction if it finds that a different forum would be more convenient and more equitable. The defendant railroad argued that Mississippi would be a more convenient and fair location on the grounds that Fennell himself lived in Mississippi, that Fennell had worked in Mississippi for the majority of his career, and because the alleged injury likely occurred in Mississippi. However, the trial court denied the defendant's motion and affirmed Illinois's jurisdiction in the case; the defendants appealed this decision.

Continue reading "Illinois Retains Jurisdiction Despite Defendant's Motion to Dismiss for Inconvenient Forum - Fennell v. Illinois Central Railroad Company" »

The November 2011 issue of the Illinois Bar Journal contains an article entitled “Creditors Are Not Freeloaders: The Common Fund Doctrine Does Not Apply to Hospital Lienholders.” The law article was written by Kreisman Law Office principal Robert D. Kreisman. Kreisman has been representing Illinois plaintiffs in personal injury and medical malpractice lawsuits for over 35 years in the Chicago and Cook County areas.

The Illinois Bar Journal article analyzes a recent Illinois Supreme Court decision in Wendling v. Southern Illinois Hospital Services, 242 Ill.2d 261, 950 N.E.2d 646 (2011). The Wendling case was significant in that the court's decision removed any doubt as to whether or not the common fund doctrine applies to a healthcare services lien; the Supreme Court determined that the common fund doctrine does not apply.

In litigation, the general rule is that each party is responsible for paying his or her own attorney fees and costs. However, the common fund doctrine is an exception to that general rule. Under the common fund doctrine is applied when a common fund is created through the efforts of the litigant's attorney, which in turn ends up benefiting a third party. When this occurs, the attorney who created the common fund can recover reasonable fees and costs from the third party, even though he/she is not technically the attorney's client.

Continue reading "Illinois Bar Journal Publishes Tort Law Article Written by Robert D. Kreisman" »

In the recent case of Vincent v. Alden-Park Strathmoor, Inc., No. 110406, 2011 WL 1077706 (Ill.Sup.Ct.), the Supreme Court reviewed the nursing home malpractice lawsuit to determine whether or not punitive damages are allowed in the event that the wronged party is deceased. The Vincent case was filed by the family members of Majorie Vincent, an elderly resident of Alden-Park Strathmoor, after Majorie died while living at the long-term nursing facility.

Majorie's family filed a complaint under the Illinois Nursing Home Care Act, which alleged that Alden-Park had violated the Act through its negligent and abusive treatment of Majorie. The complaint specifically accused Alden-Park of failing to provide Majorie with adequate medical and personal care and was willful and want in its conscious and reckless disregard of her health and safety.

In its complaint, the plaintiffs reserved the right to seek punitive damages, which are damages awarded as punishment for the defendant's willful and wanton behavior. And while the plaintiffs did not seek the damages in their original complaint, they did reserve the right to do so at a later date. However, the defendants brought a motion seeking to bar the plaintiffs from requesting punitive damages at any time. The motion was based on the general assumption because the Illinois Nursing Home Care Act does not specifically state whether or not punitive damages survive a person's death, that they do not.

Continue reading "Illinois Supreme Court Holds Again that Punitive Damage Claims Do Not Survive an Injured Person's Death - Vincent v. Alden-Park Strathmoor" »

The Illinois Supreme Court overturned an Appellate Court ruling regarding parents' liability for underage drinking on their premises in Bell v. Hutsell, No. 110724 (May 19, 2011). The Appellate Court had found that the underage hosts' parents were responsible for the death of one of the underage partygoers who drove into a tree after leaving the party intoxicated. However, the Illinois Supreme Court ruled that the case facts supported a case of true nonfeasance on the part of the parents and as such failed to establish a duty to protect the third party decedent. As a result of the Illinois Supreme Court decision, Bell was dismissed with prejudice.

The original wrongful death complaint alleged that the defendants' son, Jonathan Hutsell, had hosted a party at their home. The 18 year-old decedent, Daniel Bell, attended this party where underage drinking took place; Bell died after he left the Hutsells's party intoxicated and drove into a tree. The Illinois complaint contended that the Hutsells had voluntarily assumed a duty to protect the partygoers, including the decedent; the complaint alleged that this duty was established by the Hutsells' instructions to their son that underage drinking would not be tolerated at the party and that they would be personally monitoring the party to ensure no minors consumed alcohol in their home. The plaintiff's contention regarding this "assumed duty" on the part of the Hutsells that is at issue in this wrongful death case.

However, the complaint further suggested that not only did the Hutsells fail to adequately perform their duty to the decedent, but were also aware that minors were consuming alcohol in their home. Therefore, the plaintiffs contended that the Hutsells had negligently performed their self-imposed duty to prevent underage consumption of alcohol at their son's party. While the defense argued that the plaintiffs had failed to provide adequate proof that the Hutsells had voluntarily undertaken a duty towards the decedent, the Appellate Court decision found that the defense had not provided enough evidence to support this claim and remanded the wrongful death lawsuit to the trial court.

Continue reading "Social Host Liability Decision in Underage Drinking Case Overturned By Illinois Supreme Court - Bell v. Hutsell" »

In the premise liability lawsuit of Tilschner v. Spangler, No. 2-10-0111 (May 6, 2011), the Illinois Appellate Court was asked to determine whether a specific law was applicable in Illinois. After reviewing past Illinois case law, the appellate court held that §318 of the Restatement (Second) of Torts has not been adopted in Illinois. The Illinois Appellate Court ruling essentially eliminated the legal basis of the plaintiff's claim, thereby affirming the lower court's dismissal of Count II of plaintiff's complaint.

Tilschner was brought against defendant Ralph Ruppel after he lit fireworks that injured Patricia Tilschner; Tilschner brought a common-law negligence count against Ruppel for his role in causing the injuries Tilschner sustained. However, the appeal involves the negligence claim Tilschner sought to bring against Lowell Spangler, the property owner hosting the party at which the fireworks injury took place.

In Count II of her personal injury complaint, Tilschner alleged that Spangler

[o]wed a duty to the Plaintiff and his other invited guests to keep control and care over his property and to protect them against any unreasonable risks of harm known due to acts of a third person under his control, including the Defendant, Ralph Ruppel, pursuant to the Restatement (Second) of Torts, §318.

Continue reading "Illinois Appellate Court Affirms Section 318 of the Restatement (Second) of Torts Does Not Apply in Illinois - Tilschner v. Spangler" »

Legal venue is an important issue in many personal injury lawsuits, especially when the different states have different laws. In the product liability lawsuit of Joseph Murphy v. Mancari’s Chrysler Plymouth, Inc., No. 1-10-2178 (March 31, 2011), the Illinois Appellate Court sought to answer the question of whether Michigan law or Illinois law governed the case regarding issues of liability and damages.

The car accident at issue in Murphy occurred in Michigan. However, the plaintiff driver and the defendant car dealership where the plaintiff bought his car both were located in Illinois. The court then had to decide where the personal injury lawsuit should be heard - in Michigan, where the accident occurred, or in Illinois, where the plaintiff driver lived and worked.

Where the lawsuit was filed, or "choice-of-law," would be critical to the eventual outcome of Murphy because of the major differences in Michigan and Illinois law. When deciding product liability issues, Illinois law applies a strict liability rule, whereas Michigan law applies a pure negligence standard. This means that Illinois defendants cannot effectively argue that they were unaware of the risk of the design defect, whereas this could be a successful defense in Michigan where the standard of care is set by similar manufacturers. In addition, Michigan imposes a $500,000 cap on non-economic damages in any product liability lawsuits, whereas Illinois has no such cap on damages.

Continue reading "Appellate Court Holds Illinois Law Applies to Michigan Car Crash - Murphy v. Mancari’s Chrysler Plymouth" »

Illinois lawyers and judges are considering expanding juror's roles in the trial process. Currently jurors take a fairly passive part in the trial process itself as they sit and listen to each side present his or her case. It is only when it is time to weigh the evidence and come to a decision that jurors are allowed to actively participate. However, the Illinois Supreme Court Rules Committee is considering a proposal that would increase the role of jurors in the trial process itself.

On May 20, 2011, the Rules Committee is holding a hearing in Chicago, Illinois, to consider the proposal that jurors be allowed to submit written questions for the various witnesses. The jury's questions would not be given directly to the witnesses, but would be filtered through the judge and trial attorneys. The judge would read each written question to the lawyers in a closed session, giving the attorneys an opportunity to object.

The trial judge would then take these objections into consideration while ruling on whether or not to allow each question to be read to the intended witness. If the judge decides to allow the juror's question, he also has the option to either read it as written, or to modify it as he sees fit. Once the judge has made his decision, then either the judge or one of the lawyers would be responsible for reading the question to the witness during the trial, with both the plaintiff and defense attorneys being given the opportunity to ask the witness follow-up questions.

Continue reading "Should Illinois Jurors Be Allowed to Question Trial Witnesses? Illinois Supreme Court Rules Committee Considers New Proposal" »

An Illinois Appellate Court denied defendant's motion for a new trial in the Illinois auto accident lawsuit of Estate of Rosemary Oglesby et al. v. William Berg, et al., No. 1-09-0639. The defense's appeal involved claims that the trial court had acted incorrectly when it refused to send one of the plaintiff's medical bills to the jury during its review of the case. The jury ended up ruling in favor of the plaintiff, an outcome that the defense argued could have been different had the jury seen that medical bill.

The personal injury lawsuit involved an Illinois auto accident between the plaintiff, 60 year-old Rosemary Oglesby, and defendant William Berg, who was driving a park district van at the time of the car crash. Two days after the car accident, Oglesby presented to one of her regular physicians; Ms. Oglesby was seeing many different doctors at the time for her ongoing battle with cancer. The exhibit at issue was a billing statement from that specific doctor, which included the visit shortly after the car accident, along with twelve additional visits over the years.

The exhibit had been produced by the plaintiff, which is typical considering it was her medical bill and was likely being used to support the plaintiff's claim for reimbursement of past medical bills. However, it was the defense that requested that this particular exhibit be presented to the jury room while it deliberated its decision in the Illinois personal injury trial. The trial judge denied the defendants' request and the exhibit was not formally presented to the jury after the closing arguments.

Continue reading "Illinois Appellate Court Affirms Car Crash Verdict Despite Judge's Error - Oglesby v. Berg" »

A recent Illinois Supreme Court decision affects the way Illinois personal injury attorneys are compensated by medical lien holders, such as as hospitals, clinics, or doctors. Wendling v. Southern Illinois Hospital Services, et al. and Howell v. Southern Illinois Hospital Services, Nos. 110199, 110200 Cons reversed an appellate court decision that held that hospitals were responsible for paying plaintiff attorney fees when the plaintiff's attorney had assisted in securing payment for the hospital's outstanding medical lien.

The original lawsuit revolved around three different plaintiffs who were injured in three separate car accidents; however, each plaintiff was treated at hospitals owned by Southern Illinois Hospital Services. Each plaintiff failed to pay his or her hospital bills, so Southern Illinois Hospital Services filed medical liens for each plaintiff under the principles of the Healthcare Services Lien Act.

A lien is entered when an entity, in this case Southern Illinois Hospital Services, lays claim to future funds in payment for past services provided. Because the individual plaintiffs failed to pay their medical bills, the hospital was seeking payment from the defendants who caused the injuries that necessitated the hospital treatment. The idea is that had the defendants not caused the auto accidents, the plaintiffs wouldn't have needed treatment, and the hospital wouldn't be left with unpaid bills. Therefore, if proven negligent, then the defendants are responsible for paying the outstanding hospital bills.

Continue reading "Illinois Supreme Court Rules Common Fund Doctrine Does Not Apply to Healthcare Liens - Wendling v. Southern Illinois Hospital Services" »

In the Illinois auto accident lawsuit of Corinne Thompson v. Christie Gordon, et al., No. 110066 (IL Sup. Ct.), the Illinois Supreme Court held that an engineer does not have to be professionally licensed in Illinois in order to qualify as an "expert" witness in an Illinois civil lawsuit. The Supreme Court's decision affirmed the decision made by the appellate court; however, it reversed the circuit court's ruling that the civil engineer hired by the plaintiff needed to be licensed in the state of Illinois in order to testify as an expert witness in the pending civil suit.

In Illinois, qualifications for various types of trial witnesses are established under Illinois Supreme Court Rule 213. A civil engineer, such as the one in Thompson, who is hired to testify as to the standard of care within his or her professional field, would be handled under Rule 213(f)(3). This section deals with "controlled expert witnesses," i.e., the party's retained expert, and requires the party to provide the expert's qualifications to provide opinions on the specialized subject matter.

In Thompson, it was these qualifications that were up for debate. While the plaintiff held that its civil engineer was qualified to testify based on his experience and education, the defendants held that without being professionally licensed in Illinois he could not provide opinions as to the standard of care required of the defendants' engineers and contractors. The defendants brought a motion to strike the civil engineer's testimony as to the design defects of a highway intersection, which was granted by the circuit court. Plaintiffs appealed this decision; without the civil engineer's expert testimony it would be almost impossible for the plaintiff to prove her claims against the defendants.

Continue reading "Illinois Engineering Expert Qualifications Clarified by Illinois Supreme Court in Thompson v. Gordon, et al." »

Oftentimes lawyers employ expert witnesses to help prove their theory of liability, whether in a medical malpractice lawsuit, a personal injury lawsuit, or a product liability lawsuit. These expert witness can range from a general surgeon who might testify as to how the defendant doctor violated the standard of care, to a life care planner who could calculate the plaintiff's lost future earnings following a construction site injury, or an engineer testifying regarding a product's design defects. Whatever the type of expert witness, one thing remains constant: an expert witness's testimony is often key in proving one's case.

Given the valuable nature of expert witness testimony, it is essential that the expert is qualified to provide the opinions that are the subject of his or her testimony. It is common for both plaintiff and defense lawyers to challenge the qualifications of the opposing side's expert witnesses. Because of the important nature of expert witness qualification issues, the United States Supreme Court has often spoken on the subject the acceptability of expert witnesses to testify, but most widely examined and cited is the product liability case of Daubert v. Merrell Dow Pharmaceuticals.

In Daubert, the Court considered the admissibility of the testimony of the plaintiff's expert witness, who was interpreting the epidemiology studies of other doctors. The expert's testimony was rejected by the trial court in the U.S. Court of Appeals for the Ninth Circuit under the Frye standard, taken from Frye v United States, 293 F. 1013 (D.C. Cir. 1923) .

Continue reading "Applying Daubert v. Merrell Dow Pharmaceuticals to Filter Expert Testimony Qualifications" »

The Illinois Appellate Court recently reviewed a trial court's summary judgment ruling in an Illinois auto accident case. The trial court had granted defendants' motion for summary judgment under the Dead Man's Act following the death of Edward Henry, one of the defendants. However, the Illinois Appellate Court reversed the lower court's decision and remanded the Illinois personal injury claim back to the trial court. Ladys Balma and Linda Gallup v. Edward Henry and Cynthia Grosvenor, No. 2-09-1301.

The Illinois Code of Civil Procedure has an act called The Dead Man's Act (735 ILCS 5/8‑201). In Balma, the defendant Edward Henry died before the case came up for trial. Henry's estate and the other defendant, Cynthia Grosvenor, brought a motion for summary judgment, citing the Dead Man's Act as grounds for the Illinois personal injury case's dismissal.

Under the Dead Man's Act, "no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased . . . or to any event which took place in the presence of the deceased." Therefore, the defendants in Balma argued that because the decedent's evidence deposition had not been taken that there was no testimony that could be used in his defense at trial. The trial court agreed and therefore granted the motion for summary judgment, which in essence dismissed the Illinois auto accident case.

Continue reading "Illinois Car Accident Case Reviewed For Application of Dead Man's Act - Balma v. Henry" »