Springfield Injury Lawyer Blog

The Fourth Circuit Court of Appeals decided Robert Reynolds v. Jimmy John's. The case involved two issues. The first issue was whether or not the plaintiff's complaint alleged sufficient duty to puruse a claim against Jimmy John's for several counts, including negligent training of its employees and negligent supervision. The second involves the procedure of dismissals of claims.

This case arises from a car/motorcycle accident. The plaintiff was driving his motorcycle on Iles Avenue. The defendant contracts with "independent contractors" to drive their food to be delivered. Sawyer, the Jimmy John's driver, had driven across the parking lot in front of a Jimmy John's restaurant and into the US Bank parking lot to exit the driveway. Sawyer turned left out of the US Bank driveway, failed to yield to traffic, and collided with plaintiff's motorcycle. Plaintiff was injured.

Defense moved to dismiss the driver's claim, attaching an affidavit of a Jimmy John's employee indicating that the driver was an independent contractor. The deposition testimony, which was attached to the motion, apparently did not indicate whether or not the accident was caused by the "freaky fast delivery," promised by Jimmy John's. Plaintiff contends that "freaky fast delivery" is the reason for the accident.

The trial court ruled in favor of Jimmy John's, finding that the deposition was enough to prove that there was no way plaintiff could prevail. It held that the drivers have a license; Jimmy John's need not further train the drivers.

The Appellate Court reversed the finding that there was no duty. The plaintiff had alleged that defendants were negligent for failing to instruct the employees in the making of "rapid deliveries in a safe and reasonable manner" because defendants have a policy of "freaky fast" delivery within fifteen minutes of a sandwich order. Plaintiff's complaint also alleged that the defendants instructed and encouraged employees to expedite the delivery. Furthermore, the complaint alleged, when hired, defendants employee's were provided with a manual to review which contained no information on how to make proper and safe deliveries. The complaint also alleged that the defendants delivery policy creates a duty to the public to properly supervise their employees in the making of such deliveries. Defendants claim they did not owe a duty to supervise Sawyer, as he was a licensed driver and the plaintiff did not adequately provide facts to support the duty. The Appellate Court held that the complaint was sufficient without much more reasoning.

The court also took the opportunity to discuss, at some length, the distinction between motions to dismiss based on two different sections, section 2-615 and section 2-619, of the Illinois Code of Civil Procedure.

2-615 motion, the court held is significantly different from a 2-619 motion. In the 2-615 motion the court much assume all facts plead as true. With 2-619, on the other hand, the court considers the facts of the case. However, even with a 2-619 motion, the court must assume that the allegations are true. 2-619 is used if there is an affirmative defense to the action. Merely disputing facts alleged in the complaint is not sufficient.

The court distinguished the 2-619 motion from motion for summary judgment. The court indicated the motion for summary judgment contests the validity of the allegations in a complaint. The 2-619 motion, on the other hand only is used to assert affirmative defenses.

Ackerman Law Offices is available for handling car accidents against corporations. If you have a claim of any sort, please feel free to contact us.

In the case of Spears v. The Association of Illinois Electric Cooperatives, the Appellate Court discussed the Release of Liability signed by a party prior to an injury. The plaintiff was enrolled at Lincoln Land Community College to learn to be a lineman. As part of the program, plaintiff took a pole climbing class, which the defendant taught. Prior to enrolling in the lineman program, the plaintiff watched a climbing class. Plaintiff also signed an Indemnification and Release of Liability. Plaintiff did not read the release. There was a dispute as to whether the instructor explained the release and the possibility of injury. Plaintiff was climbing the pole, became tired, and stopped to rest. Once plaintiff attempted to continue her descent, she lost her footing, fell to the ground, and injured herself.

The plaintiff sued for injuries. The plaintiff's second amended complaint alleged negligence in that the defendant provided her with a damaged pole, failed to provide her with safety equipment and failed to remove her from the pole upon realizing she was too tired to climb. Count two alleged willful and wanton conduct in that defendant failed to institute procedures to ensure poles were safe.

The trial court ruled on a motion for summary judgment. It found that the bargaining position of the parties militated against the enforcement of the release. The court found that there were factual issues as to whether the defendant's conduct was willful and wanton. The defendant argues that the release is valid.

The court discussed the enforceability of exculpatory clauses in Illinois. It indicated that liability releases are not favored and are strictly construed against the benefiting party. However, Illinois courts will enforce a liability release if the terms are (1) clear, explicit, and precise; (2) the exculpatory clause discusses the activity contemplated by the parties to relieve the defendant from a duty of care; (3) It is not against settled public policy; and (4) nothing in the relationship of the parties militates against upholding the agreement.

The court also discussed situations where Illinois voids exculpatory clauses as a matter of law, including situations involving employer/employee, and situations such as common carrier, innkeeper, public warehouseman or public utility. The court indicates these are not a full list of the situations in which exculpatory clauses are unenforceable. The court also said that a release may be invalid where there is such a disparity of bargaining power that the agreement does not represent a free choice on part of the plaintiff.

In considering whether a release is one of disparity of bargaining power, courts look into (1) the sophistication of the parties, (2) whether plaintiff was or should have been aware of the risks, (3) whether the plaintiff was under economic or other compulsion to agree to the release, (4) whether plaintiff had a reasonable alternative.

The court notes that there was no reported Illinois decision considering whether or not a student/teacher relationship voids the exculpatory clause.

The court decided not to do decide this on a matter of law and remanded it to the trial court to determine the parties bargaining power. The court declined to answer the certified question and did not address the willful and wanton misconduct claim.

If you have an injury claim contact us!

The Center for Justice and Democracy released a study discussing the contingency fee system in the United States of America. It is titled "Courthouse Cornerstone: Contingency Fees and Their Importance for Everyday Americans."

The report discussed the contingency fee system. Contingency fees are frequently used by lawyers in order to help their clients. They are especially useful for people who cannot afford to pay high lawyer fees associated with litigation.

The study concluded that contingency fees are helpful to attorneys and clients. Contingency fee lawyers take large risks associated with a claim. They invest a great deal of time and money into their case. If they lose they do not get paid. Accordingly, the contingency fee allows lawyers to take cases to help their clients.

The study also found the contingency fees also make the lawyers both selective and sufficient. The attorneys are selective because they must screen cases. If they take bad or frivolous cases, they may invest thousands of dollars in money and tens of thousands of dollars in time on the particular case. If they are not selective the lawyers will lose significant amounts of money. The study found that attorneys only accept a small percentage of cases from prospective clients. Attorneys are frequently asked by potential clients to take cases on a contingent fee. Most of these are turned down by lawyers. The study also found that personal injury suits are a very small percentage of civil litigation. The rate of personal injury filings has been dropping for years.

The Center for Justice and Democracy study found that the contingency fee system aligns an attorney's interest with that of their client's. The attorney's fees is related to the success of the case.

The report is critical of anti-consumer groups who introduce and back, under the guise of being pro-consumer. For instance, the insurance industry backs legislation which caps attorney's fees. This looks like it is pro-consumer as it would reduce the attorney's fees clients would have to pay. However, it really has the opposite effect. It limits consumer's ability to get lawyers to handle their cases. If a lawyer can only charge 10%, rather than 30%, the lawyer can only take cases that have a larger value. Smaller value cases are no longer economically viable. The study notes that insurance companies do not seek reciprocal limits on their attorneys. In other words, their attorneys can charge as much as they want. The insurance industry does not try to limit those fees. It wants the best lawyers it can get while limiting the fees the plaintiff's lawyer can receive.

Ackerman Law Office understands the importance of contingency fees. Jim Ackerman participates in the Illinois State Bar Association, where he is on the tort committee and is past chair for the public relations committee. He also is a member of the board of managers for the Illinois Trial Lawyers Assocation.

A worker is entitled to all related medical in the future, so long as they do not close out medical. The Illinois Workers' Compensation Act (8A) says that an employer has to pay for "all the necessary first-aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter". This was demonstrated in the recent case Dye v. Illinois Workers' Compensation Commission.

In Dye the petitioner had a non-contested injury. She bumped her head. As a result she had headaches for some time and a small bump on her forehead. There was no fracture, but she was diagnosed with closed head trauma, a concussion, and an abrasion to her forehead. She did not treat for two years. Then she went back to a doctor. The arbitrator concluded that this doctor was the third doctor. This would have been out of the two physician rule which limits a petitioner's medical to two doctors and the referral chains.

The commission reversed that finding holding that doctor worked with the same group as the other doctor the petitioner had treated with. Accordingly, the treatment with that doctor did not violate the two physician rule. However, the commission ruled that it was not clear whether there was observable disfigurement.

The doctor the petitioner saw wanted to do a surgery on the dent in the right forehead area to put fat there to correct it.

The Appellate Court ruled on this. The Appellate Court cited section 8A of the Workers' Compensation Commission Act and indicates that, so long as the two physician rule is not violated, petitioner is entitled to future medical. The Appellate Court felt that the evidence was clear there was an indentation and observable disfigurement.

The ruling by the court is right. The evidence in the case, at least how the Appellate Court describes it, was strong that there was a disfigurement and a dent in the petitioner's forehead. The respondent is required to pay for that along that it is related, reasonable, and necessary. This lasts as long as the workers lives.

Open medical is a very important right to injured workers. It gives them the right to have the workers compensation carrier pay for the medical associated with their injury for life. As long as the injured worker does not waive the right in settlement contracts they retain the right. Often it is worth going to trial just to keep medical open. If you go to trial there is no waiver of open medical and the worker can retain his or her rights. Unless a worker waives open medical, which is often done in a settlement contract, the worker retains the right to open medical benefits.

Ackerman Law Office regularly handles workers' compensation cases. Please feel free to contact us is you have any type of workers' compensation claim. Ackerman Law Office handles injury claims on a contingent fee. We only get paid a fee if you get paid.

In Venture-Newberg Perini Stone and Webster v. Illinois Workers' Compensation Commission, the injury victim appealed the decision of the Sangamon County court. The facts are close, and probably could have gone either way at the commission. In one sense, they did go both ways, with the arbitrator ruling against the victim and the commission ruling in his favor.

The claimant was a fifty year old pipe-fitter who lived in Springfield, Illinois. He was a Union member with the Plumbers & Pipe-fitter Union, Local 137. As a Union member he would bid for his job. The respondent was a contractor that was hired to perform maintenance work in Cordova, Illinois, which is between 200 to 250 miles away from Springfield, but in the range of the pipe-fitters. The positions at the Cordova Plant were temporary and expected to last a few weeks.

The claimant and his friend reported to work. The two men spent the night at a hotel which was located about thirty miles from his job site. The men were scheduled to begin work at 7:00 in the morning, so they got up at 6:00 to drive to the job site. The claimant was a passenger in the car, driven by his friend, which skidded on a patch of ice. The claimant was seriously injured in the car accident.

The claimant testified that his employer had requested the employees to be within an hour of the job site so that they are alert and ready for work. They had to be available, at all times, to come in early or stay late, but you had to stay within a certain parameter of the plant. He also testified that he did not want to have to work twelve hours and then drive home and he planned on staying at the Lynwood Lodge because the job site was so far away from his home. He did say that he was not instructed to stay at the lodge. The respondent did not reimburse him for travel or lodge or pay him for the money he spent traveling to the job site. He also indicated he did not have to be in early and was not "on call" status at the time of the accident. He never expressed the request to reside closer to the job site. However, he felt driving 200 miles to and from the job site would make it hard for him in the event of an emergency.

Based on the above evidence, the arbitrator concluded he failed to sustain his burden of proving that his motor vehicle accident arose in the course of the employment at Venture-Newberg. The commission reversed the decision, concluding this did arise out of the course of his employment at Venture-Newberg.

The commission, and the appellate court, based their opinions on law that says that generally, employees who are traveling to and from work are not allowed to collect workers' compensation. There is, however, an exception for "traveling employees." A traveling employee is one who is "required to travel away from his employers premises in order to perform his job." The appellate court and the commission concluded that he was a traveling employee. However, a mere finding of traveling employee is not sufficient to sustain the burden that the injury arose out of and in the course of employment. The appellate court said that the test of whether a traveling employee's injury arose out of and in the course of his employment is the "reasonableness of the conduct" which he was engaged at the time of his injury and whether that conduct might have been anticipated or foreseen by the respondent.
The appellate court concluded that the finding of the workers' compensation commission was not against the manifest weight of the evidence so that an opposite conclusion must be clearly apparent.

It should be noted in this matter that the appellate court probably would have sustained the finding that this was not a compensable claim if the workers' compensation commission had so found. This case was based on the manifest weight of the evidence standard, and unless the commission abuses its discretion in applying that standard, the decision of the commission is to stand. The appellate court ruled that the trial court should not have taken the case away based on what the commission did. This case could have gone either way at the commission level, not at the trial court level.

If you have a workers' compensation claim please contact Ackerman Law Office, P.C. We understand and know the law about workers' compensation in Illinois. We actively handle workers' compensation claims. Jim Ackerman has taught numerous classes to lawyers and to workers' compensation professionals about workers' compensation. Contact our office at (217)789.1977 or fill out this form.

In the case of Center Partners, LTD v. Growth Head GP, LLC, state of Illinois Supreme Court clarifies the law about waiver of the attorney-client privilege in a business transaction.

Anything said between an attorney and their client is normally privileged. Parties cannot get at the substance of the conversation during discovery. In this case the attorney client privilege came up in a business transaction. The parties to an agreement all discussed with their attorneys, various aspects of the transaction. There was litigation over the transaction. During the discovery depositions one of the parties testified as follows:
"[Stefanek]: Well, we all signed it, so it would seem pretty logical that-you know, that-that anything significant would have been discussed with everybody, yes.
[Plaintiff's attorney]: Again, I think that's-there's been a waiver in light of the court's prior ruling on that, [Westfield's attorney], and did you want to reconsider your advice to instruct him not to answer that?
[Westfield's attorney]: What's your question?
[Plaintiff's attorney]: I would like to know what the legal advice was.
[Westfield's attorney]: If-if-as the-what-if-do you mind asking the foundational questions, whether he knows what the legal advice that was shared was?
[Plaintiff's attorney]: You received legal advice on why Simon, Rouse and Westfield believed they could exclude certain provisions of the Urban partnership agreement, Correct?
[Stefanek]: I received advice what-based on why we could.
[Plaintiff's attorney]: Okay. And you believe that it's logical that advice was shared with the other partners, Simon and-Rouse? Is that correct?
[Stefanek]: Seems logical that it would be, yes." (pg. 8, Docket Nos. 113107, 113128 cons., Center Partners, Ltd, et al., Appellees, v. Growth Head GP, LLC, et al., Appellants. Opinion.)

Normally, courts find waiver of the attorney-client privilege when a party discusses some of the information that was discussed with an attorney. The theory is that a party cannot use part of the communication in litigation without disclosing the remainder of it. It would be a sword/shield analysis. If you can use the information in the conversation as a sword, you should not be able to shield disclosure of the rest of the conversation. If you say things to people other than your lawyer with other people present, the information is not private, and therefore not privileged.

The court in Illinois had not discussed whether or not this can be waived in a business situation. In other words, if people discuss what their lawyer says in a business context, does this waive the attorney-client privilege in the lawsuit.

The Supreme Court held discussions with someone else's lawyer does not waive the attorney-client privilege in a business transaction. The Illinois State Supreme Court decided to apply waiver of the attorney-client privilege only in litigation. The court cited a number of out of state cases going both ways and determined that it would be more appropriate in Illinois to use waiver only if it comes up in the context of litigation.

The case makes it more difficult to waive the attorney-client privilege. The court decided that business people should be able to consult their lawyers without fear of waiving their privilege in the context of a business transaction. If the court did not do that, the court reasoned that people would be more reluctant to consult with lawyers on their business transactions.

The case is interesting from a litigation standpoint in that it does not restrict the attorney-client relationship for the litigants. It is well decided in the sense that business people can discuss matters about what their lawyers say without having to waive their privilege in context of their business transactions. It promotes fairness for litigants and the community.

Ackerman Law Office is available to help people with issues concerning business litigation and/or other litigation. We keep abreast of changes in the law. Please call us at 217-789-1977 or see our web site if you need advice concerning business litigation and attorney-client privileges.

In Supreme Catering v. Illinois Workers' Compensation Commission, the victim got injured in a car accident while working for Supreme Catering. The victim presented medical bills in the amount of $141,017.00 and claimed temporary total disability benefits, TTD, of $200.00 per week for 52 5/7 weeks. The respondent disputed the matter on the issue of employer-employee relationship, denying the claim for compensation. The arbitrator found that the claimant was not an employee of the employer.

The claimant filed a petition for review of the arbitrator's decision. The commission found that an employer-employee relationship did exist between the respondent and the victim. It ordered the responded to pay TTD for 52 5/7 weeks at the rate of $200.00 per week. It also ordered the medical bills paid.

The respondent appealed the commission's decision to the circuit court. The circuit court found that the commission had not "sufficiently explained" its decision. It remanded back down to the commission to "explain" its decision.

The commission "explained" its decision. The respondent appealed again to the circuit court. The court confirmed the decision of the commission. The responded appealed the circuit court's decision.

The appellate court found that the commission recited that it considered the nature and extent of the injury but actually made no decision on that issue. The commission's decision noted that the petitioner's treater had sought a functional capacity evaluation. The commission remanded to the arbitrator for determination of the claimant's need for vocational rehabilitation and/or maintenance, as well as any need for future treatment.

No party raised the issue of jurisdiction. Instead, the appellate court did so sua sponte. The appellate court determined that it had no jurisdiction because the order of the commission is not "final".

The appellate court found that a judgment is only "final" if it determines the litigation on the merits. It is not final if it leaves an issue undecided. In making the determination of finality the question is whether administrative involvement has been terminated or if the commission has further administrative proceedings. The court addressed language in both a supreme case and in the Workers' Compensation Act, which appear to make 19(b) decision appeal-able. The 19(b) provides the arbitrator may find the disabling condition is temporary. The award is reviewable and enforceable in the same manner as other awards, and in "no instance shall be a bard to further" proceedings. The court saw this language, which was cited by the supreme court, does not make a non-final decision appeal-able. Neither the Supreme Court case (Thomas v. Ind. Comm'n 78 Ill.2d 327, 399 NE2d 1322 (1980)) permits carte blanche judicial review of non-final decision.

The appellate court is right. A party is not allowed to bounce a case between courts like a pinball. The ruling helps expedite cases. It keeps the cases simple by prohibiting the "explanation" of non-final orders. The initial remand in this case from the circuit court to the commission directing the commission to "explain" its non-final order was also inappropriate.

Ackerman Law Office fights hard to get client's workers' compensation claims. Click here to contact us.

In an interesting case under the Healthcare Services Lien Act, calculation of healthcare liens rising from a personal injury suit was decided by the Court of Appeals.

In the case of Stanton v. Rea, the plaintiff was a passenger in a car driven by someone named Rea, when Rea's car collided with a car driven by Roe. Plaintiff filed suit, incurred hospital bills over $4,000.00. The case went to trial against one of the negligent drivers. The jury awarded damages in the amount of $13,506.80. The trial court entered judgment for that amount plus $3,919.79 in costs. The out of pocket expenses to bring the case to trial had risen to $4,501.44, which included deposition fees. Ultimately, there was a check issued in the amount of $14,520.86.

The reader should note in this case it is unclear why the check was issued for $14,520.86. It does not seem to be supported by the judgment and the costs involved in the case. It is unclear where this amount came about. Nevertheless, it is apparently the amount that the court is using. Regardless of the amount, the language of the case is instructive as to what a plaintiff recovers in a case.

From the $14,520.86 there were liens from the following providers in the following amounts:
1)Union County Ambulance Service $137.08
2)Union County Hospital $3,821.89
3)Doctor Ronald Barr $569.22
4)Doctor Greg Zimmerman $586.64
5)Illinois Department of Public Aid $691.19
Total: $5,806.02

The Lien Act provides that lien claimants, for healthcare liens, cannot exceed 40% of the verdict. In this case, if one takes 40% of $14,520.86, the result is the $5,806.02 that the court came up with. The question becomes whether this should be taken from the gross verdict ($14,520.86) or whether the attorney's fees and costs are deducted too. In this case, the attorney's fees on $14,520.86 would have been $4,052.04. Additionally, the plaintiff would have had to pay the lawyer's costs, which would have left the plaintiff with absolutely nothing.

The court interpreted the Healthcare Services Lien Act to decide that the plaintiff gets 30% of the judgment. The 40% calculation does not begin until costs associated with bringing the case to trial and securing the judgment have been deducted from the amount of the original verdict. The trial court should have begun its calculations for 40% for the lien holders after payment of attorney's fees and costs necessary in securing the judgment. Accordingly, the math should have looked like this:

1) Union County Ambulance Service $137.08
2) Union County Hospital $3,821.89
3) Doctor Ronald Barr $569.22
4) Doctor Greg Zimmerman $586.64
5) Illinois Department of Public Aid $691.19
6) Attorney's fees & costs $4,052.04
Total: $9,858.06

This is an interesting decision. The Healthcare Lien Act was set up to prevent the plaintiffs from getting nothing in cases where there are large costs and attorney's fees associated with the claim. This preserves the plaintiffs ability to be paid something. After all, they are the ones that suffered. Additionally, the lawyer in this case spent a great deal of time and money going through a trial, appeal, and fronting $4,501.44 to collect what ended up being a small judgment in the amount of $13,506.80. If the Appellate Court does not uphold this, these cases are completely unfair to the plaintiff and result in smaller cases being completely nonviable from an economic standpoint.

Ackerman Law Office is available to handle personal injury cases involving car wrecks like the one above. If you have any questions or comments please feel free to contact Ackerman Law Office, P.C.

In the case of Nitro-Lift Technologies, LLC v. Eddie Lee Howard, involving the Federal Arbitration Act, the Supreme Court of the United States indicated that courts are not allowed to address the validity of covenants not to compete before an arbitrator does so. By declaring non-competition agreements and employee contracts null and void, rather than leaving that determination to the arbitrator, the state court ignored the basic tenet of the acts arbitration law.

The case involved a contract between an employer and an employee. They entered into a non-competition agreement which had an arbitration clause indicating that any dispute would be resolved by a single arbitrator, mutually agreeable to the disputing parties, in an arbitration proceeding conducted in accordance with the rules of the American Arbitration Association. The employees filed suit after serving the demand for arbitration. They asked the court to declare the non-competition agreements null and void. The trial court found that the contract contained valid arbitration clauses, which the arbitrator, not the court, court should settle.

The case made its way up to the Oklahoma Supreme Court. Oklahoma law limits the enforceability of non-competition agreements. In other words, a court should decide whether the arbitration clause was valid. The employer claimed that the question as to the enforceability of the contract was a question that the arbitrator should decide, not the Supreme Court. The Oklahoma Supreme Court disagreed, contending that existence of an arbitration agreement and an unemployment contract does not prohibit traditional review of the underlying agreement.

The U.S. Supreme Court decided that the Oklahoma Supreme Court decision disregarded prior U.S. Supreme Court case-law concerning the Federal Arbitration Act. The act, said the Supreme Court, declares a national policy favoring arbitration. Accordingly, the arbitrator makes the decision about the enforce-ability of the provision. The arbitrator has to make the decision before any courts can do so. Accordingly, the United States Supreme Court remanded this matter back down to the arbitrator in Oklahoma to make a decision as to the enforce-ability of the covenants.

This case is a per curium decision, meaning it is signed by the court as a whole, without a published vote. The Supreme Court is telling the Oklahoma state court that arbitrators are supposed to make these decisions before they can be reviewed. This is now pretty clearly the law under the Federal Arbitration Act.

This will affect consumer cases in many ways. There are many arbitration provisions in insurance policy including ones regarding injury claimants.

Ackerman Law Office is available to help people who have arbitration issues, especially when they concern personal injury claims. These often come up in uninsured/underinsured claims, and can arise in other contexts as well. If you have an arbitration issue, especially involving personal injury, Please contact us. We like to help people repair their financial life following an injury. Please feel free to call 217-789-1977 or check out our website.

In Robinson v. Washington Township, the Plaintiff, Ricky Robinson Jr., was a passenger in a motor vehicle driven by his father. As Robinson Sr was driving, he hit a pothole, hit some construction debris, and lost control. The car rolled over and landed on its roof. The Plaintiff sustained head trauma. Ricky's mother filed suit on his behalf. She claimed that the defendant, a township, had a duty to exercise ordinary care while completing roadway repairs.

The defendant moved to dismiss arguing it was immune to liability under Section 2-109 and 2-202 of The Tort Immunity Act because filling potholes is a "discretionary" act. The trial court granted the motion to dismiss. The plaintiff filed an amended complaint alleging that "after having started repairs" the defendant: failed to provide a road free of hazardous defects knowing of the existence of hazardous conditions on the road, failed to maintain the road reasonably safely, failed to properly inspect the road for defects, failed to warn motorists of an uneven surface, and lastly, failed to warn motorists by the use of legible signs of the existence of potholes and pitted surface. The plaintiff alleged that the defendant knew or should have known of the existence of the hazardous condition of the road. The trial court dismissed the case again. The plaintiff elected to stand on his complaint to appeal the matter.

The appellate court reversed the trial court's decision. It discussed the law concerning Tort Immunity Act. Under the Tort Immunity Act, public entities are not liable for "discretionary" functions. Section 2-109 provides that "a public entity is not liable for any injury resulting from an act or omission of its employee where the employee is not liable." 745ILCS 10/2-109. A public employee is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion, even if it is abused. 745ILCS 10/2-201. Section 2-201of the Tort Immunity Act immunizes liability for negligence and willful and wanton misconduct and is strictly construed against the public entity seeking immunity.

The court discussed discretionary action of municipality when it selects and adopts a plan in making public improvements. Normally, the public entity or municipality is immune. However once a public entity, like a city, carries out the plan "it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner."

The court held that the plaintiff's complaint was sufficient because it alleged that the municipality decided to make the discretionary decision to change the highway. Once it decides to improve the road it is required to use ordinary care and is liable for negligence. The decision to improve the road is up to the municipality. If it elects not to improve the road, it is only liable for willful and wanton misconduct. Once it decides to repair, it must do so safely.

Ackerman Law Office is available to help injury victims in traffic cases, whether it involves a city or a negligent or impaired driver. We thoroughly research and review the law. We give our clients great service, returning calls within 1 business day, usually less. Call us at 217 789-1977.

Christine Scott was an avid runner. She ran in marathons and shorter races as a hobby and to keep in shape. She began having problems with incontinence of urine. She went to see her doctor. Her doctor told her to try a surgical implant of transvaginal mesh. The mesh supports the organs, preventing prolapse. The surgery, her doctor told her, was safe and would fix her problems. He put Avalta mesh, in Christine, which is manufactured by Bard.

Unfortunately, her doctor was wrong. After undergoing the surgery, the first problem Christine noticed was that she could not urinate at all. Obviously, fixing her incontinence by making it impossible for her to urinate was not the proper solution. So she underwent surgery to correct the first problem.

But there were more problems. She began experiencing pain. The mesh was moving around in her body. The mesh is course enough to perforate organs. The mesh is porous enough that organs can adhere to it, making it very difficult, if not impossible for doctors to remove it.

Christine was on the air with Jim Ackerman, along with her husband, Roy Scott, and her attorney's, husband and wife team of Elaine Houghton and Gene Lorenz. They were participants in the first plaintiff's verdict in the country involving transvaginal mesh. There has been one defense verdict now.

Christine explained how the transvaginal mesh periodically works its way through her organs, pushing into her vagina. Each time this happens she has to go to the doctor to surgically remove the mesh that has pushed into her vaginal cavity.

If that was not enough, the mesh pushed through her anal canal. She had another surgery to correct the damage, but the injury left her permanently fecally incontinent.

Christine filed suit against Bard, the maker of the mesh. She went through the complicated discovery process. Her lawyers, in the on air interview, said that Bard lied during the discovery process. Bard did not make disclosure, initially, of the information that was available to them, as they are required under law. The lawyers said they did not pursue discovery sanctions against the defendant because they did not want to get off goal. Their goal was trial.

The jury awarded her 5 million dollars in damages, which gets reduced under California law. The Bakersfield jury also awarded her husband $500,000.00 for loss of consortium. The damages included medical for the 8 surgeries Christine had to undergo. Additionally, the jury awarded her damages for her psychological bills, which the jury felt would be necessary over Christine's life. Christine sees her psychologist on a regular basis concerning her feelings of embarrassment, social phobia and depression.

Christine explained that being on the radio and helping other women is therapeutic; her psychologist recommended it. She wants to help other women who are victims of the transvaginal mesh.

Christine set up a website to help other victims - www.meshgonewrong.com. She has a forum and links for victims of transvaginal mesh.

Christine had Bard's transvaginal mesh. The mesh had been tested on "16 rats, 12 rabbits, four sheep and, by their own researcher's admission, the next living being this product went into was women."

Ackerman Law Office is actively pursuing transvaginal mesh cases like Christine's. If you have been injured by trans-vaginal mesh, please feel free to call us. We are convinced the product is horrible and would like to help the victims of those who were so careless in its manufacture.

In Warning v. Joliet Third District Court of Appeals held that the city of Joliet has a duty of reasonable care to provide lighting for crosswalks. However, in this case there was no evidence to support Plaintiff's claim that she was killed as a result of the defendant's negligence.

Decedent was struck by a vehicle driven by Ibarra right outside of Provena Hospital. The Plaintiff claimed that the City had an obligation to maintain the streetlamps, warn of streetlamps that were not operating properly, make a reasonable inspection, and/or follow procedures for the inspection of streetlamps.

Plaintiff propounded the following evidence:

A full-time security officer at the hospital noticed several inoperable streetlamps on the street in front of the hospital. Typically, during that time, he noted about one per week. Whenever he found a streetlamp was out he would mark it with yellow caution tape. He did not know how long the light had been out before the accident. He was also unaware whether anybody told the city about the streetlights on Madison. The person who ran into the decedent testified. She left her parking lot near the hospital that evening. It was dark. She testified that she believed the lighting affected her ability to see the Decedent. An officer from the city testified there are no policies of the city as to reporting of streetlight outages. One worker at Provena testified he sent a letter to the city regarding complaints that the hospital safety committee had regarding the crosswalk. However, there was no reference to any problems with lighting. The city kept a log of outages. There were no complaints of streetlight outages or malfunctions near the time of the accident. The traffic engineer for the city testified that the streetlight was probably installed in the 1960's when the hospital was built. It was maintained on a wooden pole that COM ED owned.

Following the plaintiff's case in chief the city moved for a directed finding, which the court allowed.

The appellate court indicated that when ruling on a motion for directed verdict, a trial court must employ a two-step analysis. First, the court must determine whether plaintiff has established a prima facie case. If a plaintiff presents a prima facie case the court must consider all of the evidence.

If the trial court finds the plaintiff has failed to establish a prima facie case, the appellate court applies a de novo standard of review. However, if the trial court considers the evidence, the appellate court reviews the case under a "manifest weight" standard.

The appellate court found that a public entity has a duty to exercise ordinary care in maintaining its property in a reasonably safe condition. A municipality is not liable for injuries unless a plaintiff proves the municipality has actual or constructive notice of the condition. However, a municipality's duty to maintain public property does not apply to streets or other property it does not own. Moreover, a city has no common law duty to light its streets. Merely because a streetlight is out does not render a street unsafe. However, if a city does try to provide streetlights it is liable if it doesn't do so safely.

Because the COM ED owns the streetlights, the city cannot be sued for the failure to maintain the property. Additionally, there was no evidence that anyone reported the out streetlamp to the city.

Plaintiff tried to argue constructive notice. However, there was no evidence in this case that suggested how long the light had been out.

Given the evidence, the appellate court had no reason to come to any conclusion other than what it did. There was no evidence establishing when the streetlight burned out.

Ackerman Law Office handles injury claims on a contingent fee. We are familiar with the law regarding personal injury claims. Had the plaintiff in this case been able to present evidence that the city owned the streetlamp and that the city had knowledge of the danger it would have been liable.

Governor Quinn has signed an amendment to the Healthcare Services Lien Act. It creates a reduction in liens for comparative fault, insufficient liability insurance or a combination of the two. We discussed the changes at length here.

In the case of Santiago v. Bliss the Plaintiff filed a personal injury claim. Plaintiff was injured significantly while operating a punch press for his employer. He filed a product liability complaint against the entity that manufactured the punch press.

In his complaint the plaintiff used the name "Juan Ortiz," the name he was known by at his place of employment. He also used a false birthday. He used the name in interrogatories. The defense was unaware until his deposition that the name was false. There was no evidence as to the knowledge of the plaintiffs attorneys. Defendant refused to answer whether he had ever used a false social security number or filed tax returns under the false name.

During his deposition he testified that his real name, at birth, was "Rogasciano Santiago," but that he also used the name "Juan Ortiz". The defense filed a motion to dismiss because he had used the wrong name. The Plaintiff filed an Amended Complaint, with leave of court, identifying the Plaintiff as Rogasciant Santiago" f/k/a "Juan Ortiz". The circuit court denied the Motion to Dismiss. The circuit court certified the question of the appellate court presenting the issue of whether the court should dismiss the case as a sanction and whether the original complaint was a nullity because the Amended complaint did not relate back.

The appellate court held that the circuit court may dismiss the complaint as a sanction.

The Supreme Court found that the court should not dismiss this complaint in this case. The court found that the trial court can only dismiss as a sanction if the record shows deliberate and continuing disregard for the court's authority. Additionally, a court must find that lesser sanctions are inadequate.

As there is no indication on the record that either of these factors are appropriate the trial court should re-institute the case.

Justice Karmeier concurred. Karmeier felt there was insufficient evidence to determine why the party had used a false name. He also felt that the majority confused the concepts of fictitious party and fictitious names as if they are one and the same. He used the example of "John Doe" complaints, where there really is a person, just named differently. He believed that because Juan Ortiz was a real person that he could use a false name and pursue the case. He felt the matter should be remanded to determine why the plaintiff used a false name. If the purpose was bad - defraud the defendants - he should not be allowed to proceed.

Justice Burke concurred because he believed the statute required the plaintiff to have a reasonable opportunity to add the necessary party - the plaintiff - before dismissing the case.

Justice Thomas dissented. He felt the original Complaint was a nullity because it had the wrong name. He would find that suits brought fictitiously are void ab initio.

In Jane Doe v. McLean County Unit District No. 5 Board of Directors the Illinois Supreme Court decided an interesting case concerning the transfer of a school administrator. The case came up based on the Motion to Dismiss a Complaint. Accordingly, only the allegations are considered. Plaintiffs alleged that McLean administrators learned of a teacher (White) engaging in student on student sexual harassment, abuse, and grooming of minor female students. Grooming means cultivating a trust with a minor for the purpose of sexual abuse. The Plaintiffs alleged that McLean administrators then disciplined White for these acts between October of 2004 and again in April or May of 2005. They alleged he was kept out of the classroom because of his teacher on student sexual harassment, abuse, and grooming of minor. The Plaintiffs also alleged that Defendant's created a "falsely positive letter of reference for White" which concealed known sexual abuse of female students. They also alleged that the Defendant's "passed" White from the McLean County school district to the Urbana school district. McLean County falsified employment information about White on an Urbana school district "employment form" by stating that White had worked the entire school year. This statement concealed the fact that White had been disciplined during the 2004-2005 school year.

The victims in the case were students at Urbana. Both Plaintiffs claimed to be victims of sexual abuse by White while has employed in Urbana.

The trial court dismissed with prejudice all counts against Defendant finding there is no duty owed to the Plaintiffs. The Appellate Court reversed the Trial Court judgment finding the Plaintiffs had alleged a duty on part of the Defendants. The Appellate Court believed that the act of "creating and sending" a letter of recommendation supported a duty on a theory of either negligent misrepresentation involing a risk of physical harm or of voluntary undertaking.

The Supreme Court did not agree with the decision or either the Trial Court or the Appellate Court. However, it reversed the case and found that the Plaintiffs had alleged a sufficient duty. The court held that there is normally no duty to warn in this situation. The duty to warn is only if there is a relationship between two entities, or people, created for the benefit of the Plaintiff. "Relationship" need not be a direct relationship between people. However, in order to determine whether a relationship exists a court must focus on four factors:

1.The reasonable foreseeability of an injury.
2.The likelihood of an injury.
3.The magnitude of the burden of guarding against the injury.
4.The consequence of placing the burden on the defendants.

Historically, courts have recognized only four special relationships that would allow liability for failure to warn:

1.Carrier passenger
2.End-keeper guest
3.Business invitor/invitee
4.Voluntary custodian protectee

As the plaintiffs fit in none of these categories there was no general duty to warn. The Supreme Court found that the complaints only plead that the letter of recommendation was created, not sent, from McLean County to Urbana. However, the court found that the Defendants alleged act of misstating White's employment history on the employment verification form falsely stated that he worked the entire school year in 2004-2005, which was not true. He was subject to discipline twice during the school year. Accordingly, the Supreme Court held there was a duty to fail to falsely misstate the employment history. The court concluded that there was no tort immunity as there was sufficient allegations of willful and wanton misconduct.

Interestingly, Justice Karmeier dissented. He said that the legislature has passed an act which would give rise to liability in this situation. The act also provided immunity. He did not think that the misstatements were sufficiently egregious to confer liability upon the McLean school district. He would have found no duty to the children.