Articles Posted in Tort

Government entities are generally allowed immunity on many torts. This makes filing suit against a county or municipal government difficult. An example of that is Monson vs. City of Danville.

In Monson the plaintiff fell on property owned by the City of Danville. She had left a store in the downtown district and was walking to her car when she walked into an inch of water that had formed on the side-walk by land. As she walked to the water she felt her left shoe strike something which caused her to fall. She suffered injuries for which she sued the city. Her injury occurred on December 7, 2012.

The city’s superintendent of downtown services was responsible for maintaining the sidewalks. She walked the downtown district and painted places she believed required repair. After that the city’s engineer toured the area to discuss what needs to be done to the sidewalks. This occurred a year before the injury in 2011.

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There has been little guidance from the courts in Illinois about electronic discovery.  The Illinois Supreme Court has changed the rules a little bit to accommodate electronic issues. But for the most part we treat electronic discovery the same way we treat paper discovery. Facebook posts are discoverable to some extent and get used in the courts. Electronic documents are discoverable under the discovery rules.

The appellate courts are slow to get cases because unless a litigant wants to take the time and money fighting about it the issues frequently just get resolved at the trial courts, without appellate review.

However, the appellate court recently got a shot to make some law in the case entitled Carlson v Jerousek 2016 IL.App (2d) 151248. The case got to the appellate court in the normal way for a discovery issue.  The plaintiff took a friendly contempt after the court ordered him to comply with its order. The court had ordered that the defense could do a forensic image of all his 5 computers.

The appellate court recently held that offset language in uninsured/underinsured policies with plaintiffs injured by two defendants does not apply. Throwing out the offset language is counterintuitive to most lawyers. Lawyers are taught that you apply the language of the contract. This case reminds us that the terms of the insurance policy are applied generally, but that there are exceptions to general statements.

In Tufano the court held that the policy holder must be placed in the same position as if each tortfeasor carried the same as amount of insurance as the injury victim. Furthermore, one tortfeasor’s payment cannot be used to offset the under insurance gap of the other tortfeasor. Each instance of under insurance is viewed separately. However, the amount the plaintiff can get from each party is capped by the un-insurance/under-insurance of his or her policy.

This case is very helpful in that it discusses the prior decisions of both the appellate and supreme courts regarding uninsurance/underinsurance coverage.

In civil rights cases plaintiff typically uses statute called section 1983. This statute which allows for the plaintiff to file suit for violations of their constitutional rights. The statute gives a person the right to file suit against a person who is a government employee for deprivation of any rights, privileges or immunities secured by the Constitution and law. The statute gives the plaintiff the right to recover attorney’s fees incurred. The attorney’s fee shifting provision makes this an attractive statute for victims of constitutional rights violations.

The statute had been interpreted to provide liability if and only if the plaintiff can prove the defendant was deliberately indifferent. This has been the language used in the jury instruction and is cited as black letter law.

Deliberate indifference is a subjective standard. It is subjective because it turns on the subject a state of mind of the defendant.

In Illinois the Supreme Court adopted the “Illinois Rules of Evidence.”  They are found here. As a practitioner, it is nice to have what is supposed to be the law on evidence spelled out in a simple document.

I had the honor of attending the committee meetings and speaking about an objection to the way they were drafted on a certain technical issue.  At the committee the people who drafted the rules indicated that they were not meant to change Illinois law on evidence. In other words, the rules are supposed to describe existing evidence law, not create new law.

Since the Supreme Court adopted the rules I was concerned about the “Learned Treatise” doctrine. Now for those of you who do not know what I mean by the learned treatise doctrine, in federal court and in Illinois prior to the adoption of the Illinois Rules of Evidence, a lawyer was allowed to impeach a witness who testified inconsistently with an authoritative document described in the law as a learned treatise. The theory is that if a book on the subject is authoritative and the witness testifies inconsistently, either the witness does not know what they are talking about or the witness may not be completely honest.

In James Hausman versus Holland America the jury awarded 21.5 million in favor of plaintiff James Hausman. The case took nine days in federal court in Seattle. The plaintiff’s lawyer was Rick Friedman, author of books entitled Rules of the Road and Polarizing the Case, among others. Part 1 of my interview with Rick is below.

Part 2 is below.

While in Illinois enforces personal-injury waiver forms, they have to be very specific. This was demonstrated in the case entitled Offord vs Fitness International, LLC (LA Fitness) 2015 IL App (1st) 150879.

I suppose at the outset I should disclose that I am a member of LA fitness in Springfield Illinois. The injury we’re discussing occurred in Cook County Illinois, which is about three hours away. I like our local LA fitness, but have no particular affiliation with them other than I work out at one.

In Offord, LA fitness had required the person using the facilities to sign a waiver, as do many health clubs. This particular waiver said that the person using the premises releases and holds harmless and agrees not to sue the health club for any and all claims from the use of the facilities “facilities, services, equipment or premises.”

We had Christine Scott on the air with her lawyer quite some time ago to discuss her trial over vaginal mesh case. Partially as a result, James Ackerman got involved in some vaginal mesh litigation and is actively interested in these issues.  There are currently 70,000 vaginal mesh cases pending in federal court in a multi-district  litigation. Vaginal mesh is the biggest type of civil lawsuit pending in federal court. All the rest of other cases pending in all the federal courts do not total number of vaginal mesh cases pending.

Christine Scott filed a complaint against Bard entered Dr. concerning the implantation of her vaginal mesh. Her doctor had watched a DVD on this surgical technique. However, he did not bother to read instructions for use. He implanted vaginal mesh. After the surgery Christine could not urinate, and was in pain. She had multiple surgeries to try to fix the problems and a sixth surgery to extrude mesh and to release mesh tension. Following that she was in excruciating pain due to nerve damage, had pain during sex, and lost control of her bowels. The jury awarded Christine 5 million in damages and her husband 500,000 for loss of consortium. The jury found her doctor’s negligence was not a substantial factor in causing the Scotts harm, but assigned 40% fault to her. Accordingly, the court reduced the Scotts noneconomic damages by 40% and entered judgment for 3.3 1 million per Christine and 300 for her husband.

Bard appeal. It claimed that the negligence theories were improperly instructed to the jury. Bard argued that it could not be strictly liable for design defect. The court found that Bard was right about that, but just because it was immune for strict liability does not make it immune for negligence. The court determined that the jury was properly instructed on negligence.

The Illinois Supreme Court took the Turcois v Debruler case. We reported about the appellate decision here. This case involved a fascinating set of facts. The   plaintiff rented an apartment by the defendant. The defendant, within 30 days of the plaintiff rented the property, began knocking the building down around the plaintiff and his family. The family and the defendant were obviously upset by the defendant’s conduct. The plaintiffs’ decedent then committed suicide. The details are reported in the case; I will not re-state them all here.

The appellate court had held that the plaintiff could pursue the cause of action for intentional infliction of emotional distress and could seek damages for the suicide. The appellate court cited the Restatement of Torts, which is frequently considered very authoritative, in its decision.

The Supreme Court disagreed with the appellate court and dismissed the counts concerning suicide.  The Supreme Court reasoned that a plaintiff must get past two hurdles, cause in fact, and cause in law.  Proximate cause, also known as cause in law, is limited by foreseeability, according to the Supreme Court.