Articles Posted in Personal Injury

Illinois lawyers sometimes struggle with discovery requests to produce incident reports. The defendant in a case where someone was injured may as a matter of business have a rule about preparing incident reports by employees or managers of these facilities.

Suppose a customer at an automotive repair company is injured while waiting to receive the person’s vehicle when the customer falls down a stairwell and is injured. The manager of the auto repair shop by rule prepares an incident report. The customer who was injured hires an attorney who now seeks a copy of that incident report, but the auto repair shop attorney claims that the report is privileged.

Illinois’ Rule of Evidence 801(d)(2)(A) is the operative law on why the auto repair shop must turn over the incident report.  Illinois Rule of Evidence 801(d)(2)(A) is an admission by a party opponent that states: “That the statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity.” IRE 801(d)(2)(A).

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Kerry Hogland was 36 years old when driving her sedan on a highway near Fredericktown, Mo. An employee of Town & Country Grocers of Fredericktown drove onto the highway from an on-ramp. The driver of the Town & Country Grocers vehicle did not heed a stop sign at the end of the ramp and crashed broadside into Hogland’s sedan on the passenger side.

Hogland’s vehicle spun out of control and landed in a field next to the highway.

She suffered an intracranial hemorrhage, an epidural hematoma that necessitated a craniotomy and a skull fracture that left her deaf in her right ear. A craniotomy is a surgical procedure where a bone flap is removed from the skull to allow access to the brain. The surgery removes a part of the bone from the skull to expose the brain. The bone flap is temporarily removed and then replaced after the brain surgery is completed.  Obviously, this is a very serious and dangerous surgery.

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On July 18, 2010 Geraldine Mular was a guest of the home of Dawn Ingram. Mular fell into a backyard pool and was injured. No lawsuit was filed until July 16, 2012, just one day before the statute of limitations would have expired. The lawsuit named Ingram as the defendant.

In the complaint, Mular alleged that Ingram failed to keep “the area around the premises’ pool maintained and properly constructed.” Notably, Mular did not allege that Ingram either constructed the pool or was involved in its design, but she did claim that Ingram had failed to keep the area clear of tripping hazards, failed to provide safe ingress and egress and had allowed the area to become unsafe due to poor maintenance.

In the lawsuit, Ingram’s home was correctly listed as 1694 Van Buren Ave., Des Plaines, Ill. However, the summons that was issued on July 16, 2012 listed Ingram’s residence as 1649 Van Buren Ave., transposing the last two digits of the address. The court noted that “the clerk’s docket does not reflect that the summons was ever placed with the Sheriff for service.”

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The Illinois Appellate Court for the Second District has reversed a Lake County, Ill., dismissal of a personal-injury and wrongful-death claim against Rene Melbourn who was dismissed on motion under the Illinois Code of Civil Procedures, Section 2-615, for failure to state a cause of action. The plaintiffs appealed the dismissal with prejudice of their second amendment complaint against Melbourn. The trial judge had found that the plaintiffs failed to state a claim for wrongful-death based on an “in-concert” theory of liability and the negligent infliction of emotional distress. Melbourn was the only defendant involved in the appeal.

The facts of the case were that on Dec. 13, 2013, the Borcia family, including Antonio Borcia, was out boating and tubing on Lake County’s Chain of Lakes. The defendant, Melbourn, was sued along with David Hatyina, Spring Lake Marina Ltd. and Fox Waterway Agency over the death of Antonio. In this boating accident, which killed Antonio, it was alleged that Melbourn was liable for in-concert liability for the wrongful death as well as negligent infliction of emotional distress for a bystander who witnessed the collision.

The incident involved Hatyina’s 29-foot cigarette boat, named “Purple Haze,” which struck and killed Antonio on Petite Lake, in Lake Villa, Ill. Melbourn was a passenger on the boat; it was alleged she contributed to Hatyina’s consumption of alcohol and cocaine. Hatyina was impaired as he operated the boat at speeds in excess of 40 mph. Hatyina struck Antonio with the boat. Antonio suffered severe injuries that resulted in his death on July 28, 2012.

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Scott Rankin, 37, was riding his bicycle on a two-lane rural, nonresidential road when he collided with the back of a United Parcel Service truck parked partially on the road. Rankin suffered serious injuries, the worst of which resulted in incomplete quadriplegia. He had been a band director earning about $60,000 a year, but now is unable to work.

Rankin filed suit against UPS claiming negligence per se for its driver’s violation of the Texas Transportation Code. The statute prohibits trucks such as a UPS vehicle in nonresidential districts from leaving their vehicles on the main part of the highway unless it is impractical to do so.

Rankin alleged that UPS endangered others on the road by choosing not to train its drivers on applicable parking laws in an effort to promote driver efficiency and safety.

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During a jury trial in LaSalle County, Ill., the jury found in favor of Ty Benckendorf, who was a backseat passenger in a car traveling southbound in Marseilles, Ill., on Oct. 20, 2010. The defendant, 75-year-old Juliann Huber, was driving a car that was heading southwest. It pulled into the path of the Benckendorf car, causing the crash. Benckendorf, 18, sustained a herniated cervical disc and soft tissue injuries. The jury learned that Benckendorf had $12,000 in past medical expenses.

The defendant admitted negligence but disputed the extent of Benckendorf’s claimed injuries and damages.

The attorney for Benckendorf, Jennifer L. Kiesewetter, made a demand to settle the case before the start of the trial for the policy limits of $100,000. The jury was asked to return a verdict of $250,000. The only offer made by the defendant’s counsel before trial was $23,000.

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Pengxuan Diao rented a converted garage. An employee of Southern California Gas Co. arrived while Diao was sleeping to perform maintenance. The gas company employee opened a gas valve that activated an uncapped gas line running to the garage where Diao was sleeping. The Southern California Gas Co. employee left the property without ensuring that the line was free of leaks.

A leak in the gas line caused gas to accumulate in the garage. Two hours after the leak began, Diao awoke and lit a cigarette, which triggered the gas explosion.

Diao, age 24, suffered second and third-degree burns over more than 20% of his body, including his head, torso, arms and right leg. He also suffered a traumatic brain injury from lack of oxygen, the concussive force of the explosion and from the carbon monoxide poisoning.

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In the early morning hours of April 19, 2010, Chantel Jobes was driving a vehicle alone and left the southbound lane of Highway 11, crossed the northbound lane and crashed into a concrete railroad trestle. Jobes was seriously injured and filed a lawsuit against the Norfolk Southern Railway Co., the Mississippi Transportation Commission and the Mississippi Department of Transportation. The trial judge denied the defendants’ motion for summary judgment. The Supreme Court of Mississippi granted the defendants’ request for an interlocutory appeal and that court entered summary judgment in their favor.

Jobes was working at TGI Fridays in Hattiesburg, Miss., when she started her shift as the manager at 4 p.m. on April 18, 2010. She finished her shift at approximately 1:30 a.m. the morning of April 19 and then went directly to a 24/7 gym nearby to work out, which was her normal routine. After about an hour at the gym, she headed to a friend’s house to celebrate his birthday. She does not remember the party, but her friends told her that she “didn’t want to finish the cocktail drink [she] had,” and she wanted to go home.

Jobes left the birthday party and drove toward her home. The crash described above occurred about 4:42 a.m. on April 19. The weather was clear and dry, and the crash injuries were life-threatening. Jobes was driving with a suspended license and was legally intoxicated and also had prescription anti-anxiety medication in her system. Jobes testified at her deposition that she had worked 3 straight weeks without a day off up until the crash. She could not remember a time when she had been more stressed.

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On Nov. 13, 2012, Kevin York was riding his bicycle near the exit of Busse Wood Forest Preserve in the northwest suburbs of Cook County, Ill., when he was struck by a motor vehicle driven by defendant Kenneth Heffern. Heffern, a 76-year-old retiree, left the scene after the incident.

York, who was 50 at the time, suffered a torn rotator cuff, which required two surgeries. His medical expenses alone were $160,000. Heffern’s wife, Gloria, owned the motor vehicle that hit York and was sued for negligent entrustment. Negligent entrustment of a motor vehicle is a recognized cause of action in the state of Illinois. In this case, since Mrs. Heffern loaned her car to her husband, Mr. Heffern, who she knew or should have known was an unsafe driver, she was claimed to have been negligent as well. Default judgments were entered against both of the Hefferns by the presiding judge. Plaintiff’s counsel, Justin Weinrich, initiated collection proceedings against the Hefferns, including liens on their property, as well as a wage garnishment against the wife. At a bench trial, the judge entered judgment in the amount of $514,507.

Kevin York v. Kenneth Heffern, Gloria Heffern, Case No. 12 L 1223 (Cook County, Ill.).

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In a recent Illinois Appellate Court case, the issue was whether to deduct attorney fees and litigation expenses from the personal-injury settlement amount or judgment before calculating the 40 percent maximum that hospitals and doctors are entitled to receive as their share of lawsuit proceeds under Illinois’ Health Care Services Lien Act.

In a 2012 5th District Appellate Court decision, that court interpreted the health-care lien act as meaning that “the trial court should have begun its calculations of 40 percent for the lienholders after payment of attorney fees and costs necessary in securing the judgment.” Stanton v. Rea, 2012 IL App (5th) 110187.

However, the Illinois Appellate Court for the 1st District has ruled in a consolidated appeal that involved liens asserted by Cook County’s Stroger Hospital that “a circuit court may not subtract attorney fees and costs from a plaintiff’s recovery before calculating health-care services liens from the resulting subtotal; the calculation of the health-care services lien must be made from plaintiff’s total recovery. To that extent, the 5th District in Stanton suggested otherwise. We disagree.” That quote comes directly out of the text of the decision in the Wolf case discussed below. Justice Margaret Stanton McBride wrote the opinion.

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