Chicago Personal Injury Lawyer Blog

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

Mon, 14 May 2012 12:00:00 -0600

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.

U.S. Court of Appeals Rules For Parents of Disabled Woman, Letting Family Sue Chicago Police for Negligence - Paine v. Cason, et al.

Wed, 09 May 2012 12:00:00 -0600

A recent appellate court decision involving claims of violations by Chicago police officers has received a lot of media attention because of the severe nature of the resulting injuries suffered by the plaintiff. While the Chicago Police Department claimed that its officers had qualified immunity and could not be held responsible for the harm done to Christina Eilman, the Illinois Appellate Court disagreed. Paine v. Cason, 2012 U.S. App. LEXIS 8450 (7th Cir. Ill. Apr. 26, 2012).

Paine was brought by the mother of 21 year-old Christina Eilman against the City of Chicago and its police officers regarding the May 2006 arrest of Ellman. Officers were called to respond to a disturbance caused by Ellman as she attempted to board a plane at Chicago's Midway Airport. Ellman was suffering from mental illness, but had not been taking her medications; as a result she was exhibiting disruptive behavior and needed to be escorted from the airport.

Police initially took Ellman to the 8th District Station, located on 63rd St., but then transferred her to the 2nd District Station, a woman-specific holding facility located on South Wentworth Ave. While at the 2nd District, Ellman was both maniac and calm, exhibiting behaviors typical of her diagnosed bipolar disorder. Despite her obvious mental illness, she was not given any medical treatment or a psychiatric evaluation. Instead, she was released two days after her initial arrest, still in an unstable mental condition.

The accusations in the complaint focus both on the lack of medical care offered while Ellman was in custody and on the manner of her release. Instead of returning Ellman to Midway Airport, or a similarly safe area, she was released directly from the 2nd District Station, which is located near the Robert Taylor Homes, a Chicago public housing project with an extremely high crime rate. In addition, Ellman was released without her cell phone, was scantily clad in short shorts and a bare midriff shirt, and was not in a mental condition that allowed her to appreciate the danger of her situation. Consequently, Ellman wandered into a vacant apartment with several young men, where she was raped at knife point. She then either jumped or was pushed out of a 7-story window, resulting in severe brain damage and other injuries.

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

Mon, 07 May 2012 12:00:00 -0600

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.

Appellate Court Publishes Opinion Regarding the Use of Tools to Modify Product Causing Injury - Perez v. JLG

Mon, 30 Apr 2012 12:00:00 -0600

Manufacturers have an obligation to make their products safe for regular use. However, how far does this obligation extend? Are manufacturers required to make it overly difficult for consumers to modify their products? A recent Illinois Appellate Court decision examines to what extent manufacturers are liable for after-market modifications made to their products; Geronimo Perez v. Sunbelt Rentals, Inc., et al., Nos. 2-11-0382, 2-11-0486 cons (April 9, 2012).

In January 2008, Geronimo Perez was injured while using a scissor lift machine manufactured by JLG Industries. In his product liability lawsuit, Perez claimed that his injury could have been prevented if there had been a guardrail on the scissor lift machine. What is interesting about Perez is that JLG Industries had installed a guardrail when it designed its scissor lift; however, someone had removed the guardrail after the scissor lift machine left JLG's factory.

So while JLG Industries had designed its scissor lift machine so that falls like Perez's would be prevented, someone unconnected to the company had removed that safety feature. Yet Perez alleged that JLG was liable because it should have foreseen that someone would remove that guardrail, thereby causing his subsequent fall. JLG countered that it was not responsible for modifications others made to its product and that its scissor lift machine's design was not defective.

Illinois Appellate Court Rules That Employer May Not Offset Worker's Compensation Award with Credit - Patel v. Home Depot USA

Thu, 26 Apr 2012 12:00:00 -0600

While a personal injury claim is subject to a jury's decision, Illinois workers' compensation claims are decided by the Illinois Workers' Compensation Commission. Rather than undergoing a jury trial, workers' compensation cases undergo an arbitration process in which both parties present their case to the arbitrator, who then determines an appropriate award. And because the Illinois workers' compensation damages are clearly laid out in the Illinois Workers' Compensation Act, there are generally few surprises when it comes to workers' compensation cases.

However, disputes can arise when a company does not honor the terms set out in the arbitration agreement. The Illinois Appellate Court recently reviewed an Illinois workers' compensation lawsuit involving a dispute over payment of attorney fees and costs. In Patel v. Home Depot USA, Inc., 2012 IL App. (1st) 103217, the plaintiff brought a claim against its employer after it stopped paying his workers' compensation benefits. A Circuit Court judge had entered a decision in favor of the plaintiff and ordered the defendant company to pay the plaintiff's attorney fees, costs, and interests.

On two separate occasions, the plaintiff Naresh Patel was injured while working at the Home Depot. As a result of these injuries, Home Depot was paying temporary total disability (TTD) to Patel. However, at least twice Home Depot suddenly stopped those payments to Patel without providing any written notice or warning. And while Patel was able to reinstate the TTD payments, doing so required him to hire an attorney and an arbitrator.

Photographic Evidence May Be Found Relevant Without Expert Testimony - Williamson v. Morales

Wed, 25 Apr 2012 12:00:00 -0600

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.

Internet Linking May Be Copyright Infringement - Flava Works, Inc. v. myVidster.com

Mon, 23 Apr 2012 12:00:00 -0600

Earlier this year, online communities banded together to help shut down the Stop Online Privacy Act (SOPA), which sought to increase the government's ability to fight online sharing of copyrighted intellectual property. Internet companies like Google, Wikipedia, and Craigslist opposed the bill on the basis that it could hold them responsible for any illegal sharing by its users. The Seventh Circuit Court of Appeals is set to consider a copyright infringement lawsuit that could have similar repercussions for internet companies, Flava Works, Inc. v. Marques R. Gunter d/b/a myVidster.com, No. 11-3190.

The plaintiff company, Flava Works, Inc., produces adult videos and claims that the defendant company has violated copyright laws by allowing its online users to upload and share material copyrighted by Flava Works. myVidster.com holds itself out to be a "social media bookmarking and backup service that lets you collect, share and search your videos."

The basis of Flava Works's claims was that myVidster.com's business model was "largely dedicated to the repeated and exploitative unauthorized distribution and reproduction" of media, including videos owned by Flava Works. By providing users with a means of uploading, storing, and sharing copyrighted material that myVidsters.com had caused the plaintiff "irreparable harm." Flava Works chief executive officer stated that by allowing users to post and share its videos with friends, "[myVidster.com] is sharing content that is copyrighted by Flava Works and promoting it."

The case was filed in the U.S. District Court for the Northern District of Illinois, where Judge John F. Grady ruled that Flava Works' claim for copyright warranted a preliminary injunction. It is this ruling that is being reviewed the the Seventh Circuit Court of Appeals. If the circuit court agrees with Judge Grady's ruling, it could drastically change the rules for online sharing.

Illinois Jury Finds for Defendant Driver Who Was Ticketed for Hitting Stopped Vehicle

Wed, 18 Apr 2012 12:00:00 -0600

Typically, if a driver has received a ticket for causing a car accident, they will likely be found guilty by a jury. However, in a recent DuPage County lawsuit, the jury found in favor of the defendant driver even though she had pled guilty to a traffic ticket related to the auto accident.

The car accident occurred in May 2006 on 63rd Street in Downers Grove, Illinois. The plaintiff driver's vehicle was stopped at the time. And although the defendant driver began to slow down, she then incorrectly decided that the plaintiff's car had begun to move forward. Consequently, the defendant failed to slow down in time to avoid the accident and ended up hitting the back of the plaintiff's car.

The 53 year-old plaintiff then brought a personal injury lawsuit against the defendant driver, in which he claimed that the car accident had resulted in permanent medical problems. Specifically, the plaintiff claimed he was now suffering from myofascial pain syndrome, a chronic pain disorder. As a result, the plaintiff stated that he was left with constant pain and permanent impairment and disability; the lawsuit sought compensation for both his past and future medical expenses.

CEO Binds Limited Liability Company to Loans - J. F. Brewing, Inc. v. PaulMark Land Acquisition

Mon, 16 Apr 2012 12:00:00 -0600

In business, when we deal with a company's employee we assume that the employee is acting on behalf of his company. This assumption underlies the basis of most business agreements. However, in the commercial lawsuit of J.F. Brewing v. PaulMark Land Acquisition, the defendant company denied that it was responsible for honoring an agreement its former CEO made with the plaintiff. The Illinois Appellate Court disagreed, instead holding that a company is bound by the actions of its members. Joseph Ferrel and J.F. Brewing, Inc. v. PaulMark Land Acquisition Company, LLC, 2012 IL App. (1st) 102582-U.

The defendant, PaulMark Land Acquisition Company, LLC, was formed in 2004 in an effort to establish a brewpub. However, by 2007 the LLC had exhausted all of its working capital and then turned to its members to make loans to the company. It was at this time that the plaintiff, Joseph Ferrel, wanted to become a member of PaulMark. After talks with the company's CEO, it was decided that Ferrel would loan the company $11,000. Ferrel then formed his own corporate entity, J.F. Brewing, Inc., in order to make the loan to PaulMark. His initial check was accepted by the the PaulMark's CEO, as was a second loan of $3,000.

However, at the time of his loans, Ferrel was not yet a member of PaulMark. Before becoming a member, Ferrel had requested changes to the operating agreement. These changes were being negotiated at the time of both of Ferrel's payments to PaulMark. However, when it became apparent to Ferrel that those changes would likely not be made, he notified the CEO that he was no longer interested in becoming a member of PaulMark. Ferrel issued a promissory note for both of his check and requested that they be repaid. However, before the CEO could sign the promissory notes he was fired; PaulMark never repaid the notes or acknowledged their existence. Consequently, Ferrel filed the current commercial litigation lawsuit against PaulMark.

$277,000 Illinois Jury Verdict for Driver's Ligament Hand Injury

Thu, 12 Apr 2012 12:00:00 -0600

When someone has been in a major car accident, their injuries are oftentimes fairly obvious and not contested by either party. However, if the car accident is a relatively minor fender-bender, the injuries are often not as obvious or as immediate. Smaller accidents tend to result less in broken bones and more in soft tissue injuries, such as ligament strains, muscle strains, etc. However, these soft tissue injuries can still result in large medical bills and have permanent effects on the injured party.

In a recent DuPage County car accident lawsuit, the plaintiff received $277,000 for a ligament tear in her wrist. This verdict was delivered despite the fact that the plaintiff failed to seek medical attention for her wrist injury until about a month after the actual car crash. In addition, her claimed injury was at the site of a prior work injury, for which she had already undergone multiple surgeries.

The accident in question occurred on Rowling Road (Route 59) in Addison, Illinois; Rowling has just one lane of traffic in each direction with a wide, paved shoulder on either side. Prior to the accident, the plaintiff driver was making a right-hand turn onto a residential roadway; meanwhile, the defendant driver was attempting to pass the plaintiff on the right shoulder. The plaintiff reported that she saw the defendant driver on the shoulder and quickly turned left in order to avoid a major collision. However, there was a glancing blow between the two vehicles, which fortunately only resulted in minimal damage.

Engineering Expert Excluded from Testifying Because He Did Not Perform Any Tests to Form His Opinions - Bielskis v. Louisville Ladder, Inc.

Wed, 11 Apr 2012 12:00:00 -0600

While not every civil lawsuit requires a party to hire an expert, there are some instances where an expert's opinion and testimony are vital to the case's outcome. For example, if a plaintiff is making medical malpractice claims against a doctor or hospital, he or she will likely hire a medical expert to help support those claims. Likewise, in a product liability lawsuit, a party would generally need to hire some sort of expert to help prove that there was in fact a design or manufacturing defect. The vital nature of these experts' testimony means that if for some reason those experts' opinions are barred, the plaintiff will have an extremely difficult time proving the defendant's negligence.

This is exactly what happened in the product liability lawsuit of Raymond Bielskis v. Louisville Ladder, Inc., No. 10-1194 (November 18, 2011). Bielskis filed a lawsuit against Louisville Ladder in which he claimed that its scaffolding design was defective and caused his work injury. In order to prove his claims, Bielskis's attorneys had hired an engineering expert. After the trial court barred the engineering expert's testimony, Bielskis filed an appeal in which he asked the court to reinstate his expert's testimony.

Bielskis arose out of a fall Bielskis had while using a scaffold constructed by Louisville Ladder. Bielskis had originally purchased the scaffold in 1997 while working as an acoustical ceiling carpenter for R.G. Construction. During that time, Bielskis was responsible for providing the equipment and scaffolding for most of his jobs. However, in 2001, Bielskis began working for International Decorators, who generally supplied its workers with scaffolding equipment. As a result, Bielskis rarely used his Louisville Ladder scaffold after switching employers in 2001.

Then in 2005, Bielskis decided to use his Louisville Ladder scaffold on a job. Bielskis inspected the scaffold's condition before using it; however, not noting any problems, Bielskis determined it was safe to use. But when he placed his weight onto one of the scaffold's caster stems, the scaffold broke and collapsed. Bielskis fell and injured himself; that scaffolding injury is the subject of the current lawsuit.

Cook County Jury Finds for Driver Who Hits Crossing Teen in Front of High School

Mon, 09 Apr 2012 12:00:00 -0600

We often tell new teenage drivers that "driving is not a right, it's a privilege," in an effort to impress on them the many responsibilities that come with driving. When we get behind the wheel we need to be conscious of driving in a way that ensures our safety as well as that of other drivers and pedestrians. It is for this reason that we commit to memory many rules, e.g., the pedestrian always has the right of way, or reduce speed in a school zone. The failure to follow these rules increases the possibility of a car accident occurring.

A recent Cook County jury was asked to analyze a personal injury lawsuit involving a pedestrian and a car. The plaintiff was a student at Proviso East High School in Maywood, Illinois, and was leaving his school when the car accident occurred. The case was filed by a teenage boy who was hit by a driver while walking across the street to get a ride. As a result of the pedestrian car accident, the teenager sustained a severe leg fracture, requiring surgery and the placement of four screws. And while the boy eventually made a full recovery, it was not until his family had amassed over $35,000 in medical bills.

The defendant car driver was issued a ticket for traveling over the 20 mph posted speed limit and for failing to yield to a pedestrian. The driver freely admitted that he was going 5 to 10 mph over the posted school zone speed limit. However, despite this admission of guilt, the Cook County jury found in favor of the defendant driver.

U.S. Court Finds Injured Worker Is Not a Borrowed Employee of Post Office - Fowler v. U.S.

Thu, 05 Apr 2012 12:00:00 -0600

An Illinois District judge denied the U.S. government's motion for summary judgment on the basis that the government had failed to establish that the plaintiff's claim was not valid in James D. Fowler v. The United States of America, 08-CV-2785. The U.S. government had attempted to prove that the plaintiff was barred from receiving compensation from the post office because he had already received workers' compensation directly from his employer. However, the district court disagreed with the U.S.'s classification of the plaintiff as a "borrowed employee," thereby denying its motion for summary judgment.

The claims in Fowler arose out of an injury that James Fowler sustained at a while delivering mail to a Libertyville Post Office. Fowler was an employee of Eagle Express, a company which regularly contracted with the U.S. Postal Service to move mail between its various facilities. Under these "highway contract routes" (HCR) agreements, Eagle Express was responsible for covering all of the costs and duties associated with delivering mail on its required routes, including the payment and insuring of Eagle Express employees.

So even though Fowler was injured at the Libertyville Post Office while engaged in work for the U.S. Postal Service, his workers' compensation claim was covered by Eagle Express. However, he sought to recovery additional damages from the U.S. Post Office based on the negligence of its employees in causing his injury based on the Federal Tort Claims Act. The FTCA allows parties to sue the U.S. for personal injury "caused by the negligent or wrongful act or omission" of any federal government employee "while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1).

However, the U.S. argued that it was not liable for Fowler's injuries because he was a borrowed employee. Because the Illinois Workers' Compensation Act is an exclusive remedy, an employee's employer and any borrowing employer are immune from tort liability arising from an injury. Jorden v. U.S., Dist. Court, ND Illinois 2011. U.S. argued that just as Fowler was barred from pursuing a lawsuit against Eagle Express because he had already recovered workers' compensation, so was Fowler barred from suing the U.S. Post Services based on his status as a borrowed employee.

Illinois Supreme Court Holds That No Relationship Needed Between Asbestos Exposed Person and Company - Simpkins v. CSX

Wed, 04 Apr 2012 12:00:00 -0600

It is commonly acknowledged that employers have a duty to provide a safe, healthy environment to their employees. If an employer fails to provide a safe environment, perhaps resulting in a work injury, then that employer may be held liable for the employee's injuries. However, a new Illinois Supreme Court decision extends an employer's duty beyond just to its employee, but to the employee's family as well.

The Illinois case of Cynthia Simpkins v. CSX Transportation,110662 (March 22, 2012), was filed after the wife of a CSX Transportation employee developed mesothelioma; the wife alleged that her mesothelioma was caused by exposure to asbestos on her husband's work clothes. The trial court dismissed the case on the basis that CSX owed no responsibility to its employee's wife because there was no direct relationship between her and CSX. However, both the Illinois Appellate Court and the Illinois Supreme Court reversed that ruling, although for different reasons.

The Illinois Appellate Court decision held that not only does an employer have a responsibility to its employee's family members, but that the plaintiff had shown sufficient evidence to support its claims against CSX. Specifically, the court found that "it takes little imagination to presume that when an employee who is exposed to asbestos brings home his work clothes, members of his family are likely to be exposed as well." Therefore, the appellate court found that Simpkins had provided evidence to suggest that CSX was negligent and did not fulfill its duty to her. And while the Illinois Supreme Court agreed that in theory an employer does have a duty to its employees' family members, it did not agree that Simpkins had provided enough evidence to prove that CSX did in fact have a duty towards her.

Illinois Appellate Court Limits Uninsured Motorist Claim for Workers' Compensation Benefit Claim - Burcham v. West Bend Mut. Ins. Co.

Mon, 02 Apr 2012 12:00:00 -0600

An Illinois employee who was involved in a car accident during the course of his employment sought to recoup payments from both his employer's workers' compensation policy and its car insurance policy. When the insurance company denied his claims, the employee filed a lawsuit in order to recoup those costs. And while the Illinois Appellate Court allowed some of the plaintiff's claims, it denied others in Burcham v. West Bend Mutual Insurance Co., 2011 IL App (2d) 101035.

In 2007, the plaintiff, Curtis Burcham, was driving a truck for his employer, P&M Mercury Mechanical Corporation (P&M), when he was struck by an uninsured motorist. Burcham sustained multiple injuries from the truck accident and had to undergo several surgeries. Because the accident occurred while Burcham was working, his employer, P&M, paid for his medical expenses and lost wages out of its workers' compensation policy. To date, P&M has paid $490,000 for medical expenses, more than $100,000 for temporary-total incapacity, and continues to pay $925 per week based on Burcham's 2/3 weekly wage.

P&M also had an uninsured and underinsured motorist policy through West Bend Mutual Insurance Company. Since the other driver involved in Burcham's truck accident was not insured, he sought to receive additional payments from West Bend under P&M's truck insurance policy. However, West Bend denied the claim, citing a provision in its policy that it "will not pay for any element of loss if a person is entitled to receive payment for the same element of loss under any worker's compensation, disability benefits or similar law." West Bend's position was that since Burcham was already receiving workers' compensation payments for the truck accident that he was not entitled to any money from West Bend's uninsured motorist policy.