Articles Posted in Negligence

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 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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The aftermath of a motor vehicle accident can be legally complex. Often times, a person other than the driver to the striking vehicle, may be additionally responsible for the damages caused by a motor vehicle collision. Under Illinois law, two common scenarios in which a person or entity may be found legally responsible for damages caused by a negligent driver arise in (1) the parent-child relationship, and (2) the employer-employee relationship. Whether a parent or an employer is legally responsible for the at-fault driver will a careful analysis of the facts surrounding the accident and the relationships of the parties.

Parent-Child Relationship

If a child gets into an accident while driving his or her parents’ car, the injured plaintiff may be able to sue the parents in certain, but not all, situations. Parents are not liable for the injuries caused by their children merely because their child causes an accident. In Illinois, parents may be held liable under an “agency” theory for their child’s negligent driving if the child was engaged in running an errand for or doing the parents’ business at the time of the accident. Stellmach v. Olson, 242 Ill.App.3d 61, 64 (2nd Dist. 1993). However, the Stellmach Court explained that a parent is not liable for damages caused by a child who drove the parent’s car for the child’s own purposes, even if the parent consented to that use. Stellmach, 242 Ill.App.3d at 65. If, instead, the child was using the car to run a family errand, then the parent will be liable. Stellmach, 242 Ill.App.3d at 64. The question of whether an action is a family errand will be a question of fact for the jury to consider during the trial. Id.
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In March 2011, the Village of Downers Grove released its Neighborhood Traffic Study (the “Study”). The Study investigated Downers Grove’s traffic issues by studying a specific section of the community– the neighborhood bounded by Main Street, Fairview Avenue, Maple Avenue, and 55th Street. Incredibly detailed and comprehensive, the Study analyzed many different issues, including: pedestrian and bicycle facilities, intersection traffic controls, parking restrictions, and daily traffic volumes. Perhaps the most important part of the meticulous study was the evaluation of the intersection at 55th Street and Washington Street.

Intersection at 55th Street and Washington Street

One of the Study’s goals was to investigate the conditions at the intersection of 55th Street and Washington Street in Downer Grove, which may be causing vehicle accidents, car accidents, truck accidents, and motorcycle accidents and to provide recommendations for limiting the number of future accidents.
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On November 23, 2011, the U.S. Department of Transportation (“USDOT”) announced the final rule that prohibits interstate truck and bus drivers from using hand-hand cell phones while operating vehicles. The Federal Motor Carrier Safety Administration (“FMCSA”) and the Pipeline and Hazardous Materials Safety Administration (“PHMSA”) finalized the rule with the power of the USDOT . The FMCSA and PHMSA determined that the prohibition was necessary to prevent injuries and deaths caused by truck accidents. In 2009, there were 5,474 deaths and nearly 500,000 injuries caused by distracted drivers.

The final rule provides for federal civil penalties of up to $2,5750 each time a commercial truck driver is caught using a hand-held cell phone while driving. Companies that are found to be permissive in allowing their drivers to use hand-held cell phones face stiff fines up to $11,000. These penalties are in addition to state sanctions, including potential suspension of commercial driver’s license (“CDL”).
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Rear-end collisions occur every day in DuPage County. Some accidents are relatively minor and occur at slow speeds; other times, severe accidents occur as a result of a high speed, heavy impact collision. Regardless of the severity of the car accident, injuries often result. Common symptoms include pain in the head, neck, and back. Injuries may range from broken arms or legs, shoulder injuries, knee injuries, head injuries, whiplash and herniated or bulging discs.

In Illinois, the individual who rear-ends another driver is often found to be at fault in causing the accident, absent certain defenses. The rear-end driver or striking motorist who causes a rear end collision may have been following the car in front of him too closely or “tailgating.” There are exceptions to this general assumption, such as a sudden stop by the victim’s car, or in rare circumstances in which the striking motorist is confronted with a hazardous situation or sudden emergency.
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As a part of the City of Naperville’s Comprehensive Transportation Plan, the Naperville Pedestrian Plan (“Plan”) was created to design and implement policies, practices, and programs that promote a safe pedestrian experience and limit pedestrian accidents. The Plan also recognizes that there are many different pedestrian experiences and paths of travel. For instance, the Naperville Riverwalk is located west of Naperville City Hall in Riverwalk Park. The Riverwalk is pedestrian friendly and has very little interference from motorists or other uses. In a different section of Naperville, the Naperville Historic District is located north of North Central College. The Historic District is a highly mixed-use neighborhood with motorists, crosswalks, stop lights, Ellsworth Elementary School, First Congressional Church, Community United Methodist Church, many local business, etc. These areas represent different and unique pedestrian needs and desires.

Policies and Practices

In order to effectively develop and coordinate Naperville’s varying pedestrian needs, Naperville has developed a rubric of policies and practices to be considered when undertaking a pedestrian project.
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On June 1, 2011, construction began on the Butterfield Road (IL Route 56) widening project. Upon the project’s conclusion, approximately six miles of Butterfield Road, from Naperville Road in the City of Wheaton to Route 59 in the City of Warrenville, will be widened from two lanes to four. The project will also include updated intersections, additional turning lanes, and additional lanes at the major cross streets of Wiesbrook Road, Orchard Road, and Naperville Road to improve capacity at Butterfield Road intersections. According to the Daily Herald, the project is scheduled to conclude in the fall of 2012.

Butterfield Road Car Accidents

When planning the project, the Illinois Department of Transportation conducted a crash analysis on the section of Butterfield Road to be improved. The IDOT study found a total of 670 accidents on this stretch of Butterfield Road. The study found that 88% of the accidents were rear end collisions and turning accidents. The study also investigated eight intersections along Butterfield Road, including: IL Route 59, Batavia Road, Winfield Road, Wiesbrook Road, Orchard Road, Cromwell Drive, Naperville Road, and the Danada Square and Naperville road intersection. From 2004 through 2006 there were 387 accidents at these intersections, causing 83 personal injuries. Again, approximately 90% of the accidents at these locations were rear end collisions and turning accidents. The road widening and updated intersections are designed to lower the number of car accidents, truck accidents, and motorcycle accidents that occur on Butterfield Road.
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Under the Illinois Animal Control Act, a plaintiff seeking to recover injuries from the result of a dog bite must prove: “(1) an attack by defendant’s dog; (2) injury to plaintiff; (3) absence of provocation; and (4) that plaintiff was conducting himself peaceable in a place where he had a legal right to be.” Stehl v. Dose, 83 Ill.App.3d 440, 443 (3rd Dist. 1980). The third element of this burden, absence of provocation, can be a complex area of the law. In Nelson, provocation was initially defined as “an act or process of provoking, stimulation or incitement.” Nelson v. Lewis, 36 Ill.App.3d 130, 131 (5th Dist. 1976).

Since the Nelson decision, subsequent Illinois Appellate Court decisions have provided some as to what actions constitutes provocation. For example, the court in Stehl v. Dose also stated that a determination of provocation is “primarily a question of whether plaintiff’s actions would be provocative to the dog.” Stehl at 443. In addition, this standard takes into account both “what a person would reasonably expect, and how a normal dog would react in similar circumstances.” Kirkham v. Will, 311 Ill.App.3d 787, 794 (5th Dist. 2000). An unintentional or accidental act can sometimes create provocation, however “where the acts which stimulated or excited the dogs were unintentional … no provocation can be said to exist within the meaning of the statute if the acts cause the dog to attack the plaintiff viciously, and the vicious act is out of proportion to the unintentional acts involved.” Wade v. Rich, 249 Ill.App.3d 581, 589 (5th Dist. 1993).
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