Articles Posted in Negligence

As a car accident lawyer, I am always looking at what makes us less safe on the road. At the top of this list is distracted driving. In Illinois, drivers are generally allowed to use cell phones, but are prohibited from using cell phones, hand held or otherwise, when driving in a school zone or when driving in a highway construction zone. Recently, Illinois tightened these restrictions and prohibited all hand held cell phone use while driving.

Texting – the most dangerous form of distracted driving – has long been prohibited in Illinois. Exceptions to the prohibition from texting while driving are quite limited: reporting an emergency situation and continued communication with emergency personnel during the emergency situation; using a device in hands-free or voice-activated mode; if the driver is parked on the shoulder of a roadway; or when the vehicle is stopped due to normal traffic being obstructed and the driver has the motor vehicle transmission in neutral or park. Absent an exception, texting is prohibited.
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Each year, many people are seriously injured by unsafe and dangerous products. But some are unaware that they may be entitled to compensation for their injuries. What is a product liability claim? Product liability cases arise when a defective product suddenly causes an injury.

According to public policy, consumers should not have to worry about whether a product they buy or use is dangerous due to a defect of design, improper manufacturing, or an inadequate warning label about the possible dangers of using the product. When people are injured by defectively designed or poorly manufactured products, companies that make or sell the dangerous product can be held responsible. Product liability claims or lawsuits not only help compensate the injured victim, but also protect other consumers by alerting the public about the product’s dangers, which may not be well known. Product liability laws help prevent others from suffering similar injuries.
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Illinois motorists may not fully know the dangers of distracted driving. 71% of teenagers and young adults admit to writing or sending text messages while driving, and 78% of teenagers and young adults admit to reading a text message while driving. With the advances of cell phone technology and its growing popularity, the use of cell phones while driving has increased exponentially in the last few years, and so has the risk posed by distracted drivers.

In fact, increased cell phone usage in Illinois has made the problem of distracted driving much worse, leading to more motor vehicle accidents. The National Safety Council (NSC) reports that approximately 24 percent of all traffic crashes (about 1.2 million) each year are linked to drivers texting or talking on their cell phones while driving. The NSC also reports that the number of car accidents caused by distracted drivers using cell phones is grossly underreported, so there are actually more car accidents caused by distracted driving than current data shows. Illinois is no exception.
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The Center for Disease Control and Prevention (CDC) estimates that at least 170,000 sports and recreation-related traumatic brain injuries (TBI) are suffered by children and adolescents each year. This is believed to be a conservative estimate since many brain injuries go unnoticed or unreported, in part because people do not recognize the symptoms. According to the Concussion Legacy Foundation, an organization dedicated to advancing the study, treatment and prevention of the effects of brain trauma in athletes and other groups, only 1 in 6 concussions are diagnosed.

Concussions can occur in any sport or recreational activity, and concussions currently represent 8.9% of all high school sports injuries (rates being highest in football and soccer). It is important for parents, coaches, and athletes to understand the symptoms of a concussion, and take steps to prevent concussion injuries. After minimizing the effects of head injuries for decades, sports culture is slowly changing. New research has shown that concussions can be very dangerous to long-term brain health, and have been linked to Chronic Traumatic Encephalopathy (CTE), a degenerative brain disease. Because concussion injuries cannot plainly be seen, players are often encouraged, if not pressured, to play through being rattled or having their bull rung. With a new body of research, we now know that ignoring concussion symptoms can result in serious consequences.
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While the public may be more familiar with medical malpractice claims involving a hospital or physician, these types of claims are also available against other medical professionals who do not offer treatment with the requisite standard of care, including dentists. Dental injuries can be very painful, and often the damage may only be repaired by placing a crown on the tooth, a root canal, or even removing the tooth.

Dental malpractice claims require the same legal elements be proven as with other medical malpractice claims. The plaintiff will be required to show “(1) the proper standard of care for the defendant [dentist]; (2) an unskilled or negligent failure to comply with the appropriate standard; and (3) a resulting injury proximately caused by the physicians’ failure of skill or care.” Jinkins v. Evangelical Hospitals Corp., 336 Ill. App. 3d 377, 382 (1st Dist. 2002). Generally, expert testimony will be required to establish the applicable standard of care and a breach of that standard of care. The Illinois Supreme Court explained that because laypersons do not generally understand medical procedures or treatment, expert testimony is required to aid members of the jury, as well as the judge. Addison v. Wittenberg, 124 Ill.2d 287, 297 (1988). The only exceptions to this requirement occur when the treatment is very common or the act which causes the injury is “so grossly negligent” that members of the jury would be able to evaluate the conduct with their own knowledge and experiences. Id.
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Route 53 has notoriously been a dangerous highway for motor vehicle drivers, but the construction being completed there may soon alleviate the number of serious accidents. Last week marked the expected half-way point for the Illinois Department of Transportations (IDOT) Route 53 construction project, which began on August 29, 2011, and has an anticipated end date of October 17, 2013. Originally slated to end sooner, the project has been plagued with various setbacks, including several heat waves (effecting the ability to pour concrete) and a brief hiatus for the Labor Day holiday. Of course, drivers’ safety, however invaluable, does not come cheaply: this project will cost roughly $45 million.

The portion of Route 53, also known as Rohlwing Road, subject to construction consists of 4.1 miles running from Army Trail Road to the Elgin O’Hare Expressway. IDOT hopes that the project will reduce the congestion, which has plagued this stretch of road in recent years, leading to multiple car accidents and fatalities. Similarly aimed construction commenced on Butterfield Road (Route 56) in DuPage on June 1, 2011. The Rohlwing Road construction will include a second lane added in both directions and the intersections at Army Trail Road, Lake Street, and Irving Park Road will be improved to include additional through lanes, left turn lanes, barrier medians, and modernized traffic signals. As part of the project, part of Army Trail Road will also be reconstructed. A report released by the Addison Police Department showed that car accidents at the intersection of Route 53 and Army Trail Road had increased by 28% from the year 2009 to 2010; the intersection of Route 53 and Lake Street had increased by a remarkable 58%. These troubling statistics no doubt reinforced IDOT’s decision to commence construction.
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When a plaintiff pursues a personal injury lawsuit as a result of a motor vehicle accident in Illinois, it is imperative to properly serve the defendant with a complaint and summons. Failure to properly serve a defendant may be fatal to a plaintiff’s case. Under Supreme Court Rule 103(b), a plaintiff is required to exercise due diligence in their attempts to serve the defendant, and failure to do so may result in the dismissal of the case. To determine the proper method of service, or the act of physically giving the complaint and summons to the defendant, a plaintiff must evaluate the amount of their damages and ascertain the location of the defendant.

To determine the proper method of service upon an individual, the plaintiff must first evaluate and determine the approximate amount of their damages.
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When filing a dog bite complaint, the plaintiff may pursue multiple theories of liability against the dog owner. The Animal Control Act holds dog owners strictly liable for bites and attacks by their dog. E.g. 510 ILCS 5. Prior to the passage of the Animal Control Act, a plaintiff was forced to bring a negligence cause of action. In such cases, a dog owner could plead an affirmative defense that he or she lacked knowledge that the dog would attack or bite–commonly referred to as the “one-bite” or “scienter” rule. Klatz v. Pfeffer, 333 Ill. 90, 94-95 (1928).

The Illinois legislatures adopted the “dog bite” statute, which eliminated the scienter rule. The modern “dog bite” statute states, in part: “If a dog or other animal without provocation attacks or injures any person who is peaceably conducting himself . . . the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained.” 510 ILCS 5/16. The Illinois Supreme Court in Beckert v. Risberg held that the elements necessary to sustain an action under this section are: (1) proof of injury by the dog; (2) lack of provocation; (3) peaceable conduct; and (4) presence of the plaintiff in a place where he or she had a right to be. 33 Ill. 2d 44, 46 (1965); See https://www.chicago-injury-lawyer.org/dog-bite/. Accordingly, a dog owner may only defend an action under the statute by proving that the victim was creating a disturbance, trespassing, or tormenting the dog in a way that provoked the attack.
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The Illinois Animal Control Act provides a basis for dog bite victims to recover if they have been the victim of a dog bite. However, an animal attack, on its own, is not necessarily an automatic basis for liability. There are rare situations that may prevent the plaintiff from proving her claim because the plaintiff was actually in control of the animal at the time of the attack, or when a defendant has given proper warnings to the victim about the presence of a dangerous dog. Although rare, these two exceptions to liability are worthy of consideration.

Exception 1: There May Be No Liability When the Victim Assumes Complete Control of the Animal.

In rare situations, a plaintiff may be barred. Van Plew v. Riccio, 317 Ill.App.3d 179 (2nd Dist. 2000). In Van Plew, a pet sitter who the dog owner hired to feed and provide water for the dog was bitten during the course of her care for the dog. The court denied recovery and stated that “where a person voluntarily accepts responsibility for controlling or caring for a dog … that person is an ‘owner’ within the meaning of the Act and is precluded from recovery under the Act.” Id. at 182. The Fourth District of the Illinois Appellate Court reached a similar decision in Docherty v. Sadler, 293 Ill.App.3d 892 (4th Dist. 1997), where it denied relief to a ten-year-old-child who had agreed to take care of a neighbor’s dog. However, these situations are rare and what constitutes “control” is a high bar for the defendant to meet. More often, the defendant will have retained at least partial control of the animal, thereby exposing them to potential liability. A proper investigation can often defeat this defense.
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Most Kane County residents are aware of the dangers of using cell phones while driving, but many still answer the phone while driving or even text while driving. Significantly, statistics show that a driver who is texting has the same impaired response time as an intoxicated driver. If you must use your cell phone while driving, some helpful safety tips are:

– utilize a hands free device – avoid using your phone in bad weather, stressful situations, or heavy traffic – make phone calls when you aren’t moving – avoid looking up numbers or trying to take notes while driving and
– keep your conversations short
The risks are more pronounced when drivers text. While texting, the driver’s gaze constantly shifts between his phone and the road. Experienced drivers, including truck drivers, fare no better when texting. A study showed that truck drivers who text and drive are approximately 20 times more likely to get into an accident.
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