Negligence

Illinois Car Accidents: Why NOT to Speak to the Insurance Company

January 13, 2012 | John J. Malm

The time after a car accident can be stressful and frightening. Painful injuries and worries about keeping up with work and family are the biggest concerns. You may be in no position to speak to anyone – let alone the insurance adjuster for the at-fault driver. But the insurance company will often contact you and ask you to settle your claim quickly, often for a figure that is far less than it is worth. If you have been hit by a car while riding your bike or as a pedestrian, you can expect a call from the insurance company. My advice: Never speak to them without a lawyer.

No matter what the adjuster tells you, the at-fault driver’s insurance company does not have your interests in mind. In fact, the adjuster has a conflict of interest in saying anything to you about the value of your claim. It is important NOT to speak with the at-fault driver’s insurance company without counsel. Any competent attorney knows that a call to the insurance company is likely to be recorded; therefore, it is not in your interest to say anything at all. It is best to leave all communication to your counsel.
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Slip & Fall Claims: Unnatural Accumulation of Snow and Ice in Illinois

January 11, 2012 | John J. Malm

As winter approaches, snow, ice, and water are going to become hazards for pedestrians who can injure their neck and back. In Illinois, a slip & fall accident is an actionable claim against the property owner or manager depending on how the snow, ice, or water accumulated. If an accumulation occurs naturally and without aggravation by the property owner, Illinois courts have held that a property owner generally owes no duty to remove the accumulation, regardless of how long the accumulation has been present. Despite this, Illinois courts have also found that business owners have a duty to provide a reasonably safe means in ingress and egress. Reed v. Galaxy Holdings, Inc., 394 Ill.App.3d 39 (1st Dist. 2009).

Once a property owner undertakes to clear snow or ice from the premises, the property owner assumes a duty to do so non-negligently. One such scenario is when a property owner has shoveled snow into a pile, which later melts and then refreezes, creating a hazard. If a parking lot has a sloped grade, and the snow is removed to the higher part of the parking lot, melting snow that drains back across the parking lot may result in an unnatural accumulation. Unnatural accumulations can also form from gutters or a leaking roof which drain melting snow onto a parking lot only to refreeze there.
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Illinois Social Host Liability in the Wake of Bell v. Hutsell

January 5, 2012 | John J. Malm

The Illinois Supreme Court recently clarified social host liability in Illinois in the decision of Bell v. Hutsell. The case explains how personal injury or negligence claims can arise in social host situations. These claims may include car accidents. Generally, a social host of a party where alcohol is served is not liable for injuries caused by persons who consume alcohol and thereafter cause injuries to third persons. However, under a voluntary undertaking theory, if a social host undertakes an act, then they may be civilly liable if they perform that act negligently. As an example, a parent who allows their minor child to have a party at their residence and undertakes to prevent minors from consuming alcohol, such as confiscating liquor, may be liable if an intoxicated person subsequently injures a third person.

In the case of Bell v. Hutsell, Daniel Bell, an 18-year-old, attended a party hosted by the Defendants’ son, Jonathon, and allegedly consumed alcohol at said party. In the complaint, the Plaintiff alleged the Hutsells were aware of underage consumption at the house, that their son, Jonathon, had previously pled guilty to underage consumption, that underagers drank excessive amounts of alcohol within the presence of the Hutsells without any objection, and that Jerry Hutsell had spoke to a number of underage parties who had been drinking alcohol and requested that if they had drank, then not to drive. The Complaint further alleged that after consuming alcohol at the Hutsell residence Daniel Bell died in a single-car accident when his vehicle collided with a tree.
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Negligence Cases: Proximate Cause and Foreseeability of Harm

December 27, 2011 | John J. Malm

Most negligence cases require the Plaintiff to prove the same four elements; duty, breach, causation, and damages.

Actual cause or cause in fact is the actual event that caused the harm. The harm would not have happened but for the actual cause event occurring. Proximate cause is also known as legal cause. To win a negligence claim, the plaintiff must show more than just breach by the Defendant toward the Plaintiff. The negligent content must also be the legal cause of the Plaintiff’s injuries. The Restatement (Second) of Torts requires two elements to be met to determine whether an action is the legal cause of the Plaintiff’s injuries. First, the tortious conduct must be a substantial factor in bringing about the injury. Second, there must not be a rule of law which prevents the defendant from being liable for his negligence.
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Wrongful Death: New law helps family members gain access to records in Illinois

December 15, 2011 | John J. Malm

On November 23, Governor Quinn signed SB 1694. The new legislation allows access to a deceased family member’s medical records without the requirement of opening of an estate. SB 1694 will add 5/8-2001.5 to the Illinois Code of Civil Procedure entitled: “Authorization for release of a deceased patient’s records.” 735 ILCS 5/8-2001.5. The new law makes it easier for families of victims to investigate wrongful death claims. Under the new rule, a decedent’s records may be released upon written request by a deceased person’s estate or agent appointed under a power of attorney. If no executor, administrator, or agent exists (and the deceased person made no prior objection), then the deceased’s medical records can be obtained in one of two ways. First, the medical records may be attained by the deceased’s surviving spouse sending written request to the medical facility. Second, if surviving spouse exists, then medical records may be obtained by written request by one of the following: an adult son or daughter of the deceased, a parent of the deceased, or an adult brother or sister of the deceased. The person requesting the records must sign an “Authorized Relative Certification” attesting the fact that the person is entitled and authorized to receive the records under the statute.
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