Articles Posted in Personal Injury

The court in DeMambro v. City of Springfield discussed local governments obligation to use reasonable care when repairing the roadways. The issue arose under the Tort Immunity Act, specifically section 3-102. That section provides as follows: “Accept as otherwise provided in this article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used.” (745 ILCS 10/3-102(a).

In DeMambro the plaintiff injured her ankle when she slipped in a pothole while attempting to enter her vehicle, which was lawfully parked, near the curb on a city street. The trial court held that the city owed no duty of reasonable care to the plaintiff. Instead, the city was liable only if the action were willful and wanton under the Tort Immunity Act. The court held that plaintiff failed to provide evidence of a “physical manifestation of intent by the city….that it intended for Herndon street to be used by pedestrians.” The court found that there was no evidence that the street had designated parking meters, parking stalls, or line spaces. The court felt the burden would be too significant on the city or municipality to exercise reasonable care whenever a vehicle passenger or driver were entering or exiting the car if it has to do so for any cars who are parked parallel to a roadway. The city relied on Vaughn v. City of West Frankfort, 166 Ill. 2D [155,] 164 [(1995)]. It also relied on Boub v. Township of Wayne, 183 Ill. 2D 520[(1998)].

The Appellate Court (4th District Court of Appeals) reversed the trial court. The court reviewed the case law concerning permitted and intended users under the Tort Immunity Act. In Di Domenico v. Village of Romeoville, 171 Ill. 3D 293, 525 N.E.2d 242 (1988), the Appellate Court concluded the plaintiff was an intended and permitted user of a city street where the person was legally parked parallel to the curbing. In Di Domenico there were no signs, signals, meters or stripes. In contrast, the Supreme Court, four years after Di Domenico, concluded a person was not an intended and permitted user of a six lane highway where he was struck and killed near the center road trying to cross traffic. In Wojdyla v. City of Park Ridge, 148 Ill. 2D 417, 420-22, 592 N.E.2d 1098, 1100-01 (1992), the Supreme Court distinguished Di Domenico. The big difference in the Wojdyla case that the plaintiff was crossing the highway when he was struck and killed by a car. In another case, a plaintiff was exiting his parked truck to deliver boxes and stepped in a pothole. The court held that he was an intended and permitted user of the street. Curatola v. Village of Niles, 154 Ill. 2D 201, 608 N.E.2d 882 (1993).

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.

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.

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.

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.

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.

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:

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.

In the case of Vanoosting vs. Sellars, 2012 IL App (5th) 110365, the Plaintiff in the case was involved in a relatively straight forward rear-end collision case. She had neck and back pain as a result of the accident. She filed suit seeking damages for past and future pain and suffering, disability, loss of normal life, and loss of earning capacity. The Defendant admitted they were negligent in running into her. The court held a trial on the issue of damages. The trial court started the hearing and declared a mistrial because of statements made by a juror in chambers. It then conducted a second jury trial. The jury heard opening statements and Plaintiff conducted the case in chief. The Plaintiff sought to introduce evidence that she lacked enough money to treat as much as she otherwise would. She would have testified, and made an offer of proof, that she made two-hundred dollars per week. She testified at the motion limine that she sought little or no medical treatment in the last three years because she had no health insurance. The trial court barred the testimony and let the issue go to the jury. The defense lawyer argued that she had not had any medical treatment for three years; therefore she must not have significant problems now. The jury returned a verdict for $30, 286.46 of which $18, 286.46 was for medical expenses, past and future, and $12,000.00 was for pain and suffering, past and future. The jury returned zero for loss of a normal life.

The Plaintiff appealed the decision arguing the Plaintiff should have been able to produce evidence that the reason she did not go to the doctor was because of her lack of health insurance. The Appellate Court reversed the trial court. The Appellate Court said that the evidence is clearly relevant under Illinois Rule of Evidence 401.

The next questions the court addressed was whether or not it was unduly prejudicial for the jury to hear that the Plaintiff did not have health insurance. The court said that the trial court should have allowed Plaintiff to introduce the evidence. It said this is especially true in-light of the defense counsel strategy of repeatedly high-lighting the fact that the Plaintiff had no treatment for her injuries in the three years prior to the trial.