Articles Posted in Personal Injury

What is the De Minimis Rule?

There are several nuances to premises cases, especially trip and fall cases caused by defective pavements. One of the nuances to a premises case is the de minimis rule. Under the de minimis rule, liability for the defendant generally attaches for sidewalk defects approaching two inches in height. Birch v. City of Quincy, 241 Ill. App. 3d 119, 121 (1993), Harris v. Old Kent Bank, 315 Ill. App. 3d 894, 900 (2000). Courts are hesitant to find a defendant liable for sidewalk or pavement deviations less than two inches in height because the de minimis rule was originally intended to protect [defendants] from the burden of having to monitor and maintain great lengths of sidewalk in perfect condition. Id.

“Whether a height variance between two sidewalk slabs is de minimis depends on all of the pertinent facts, and there is no simple standard to separate de minimis defects from actionable ones. St. Martin v. First Hospitality Group, Inc., 2014 IL App (2d) 130505 ¶14 (quoting Arvidson v. City of Elmhurst, 11 Ill. 2d 601, 604 (1957)). Illinois has held that, although a displacement of two inches in a residential area is actionable, a variation of only 1 1/8 inches is de minimis. Id. However, the de minimis rule’s application depends upon multiple factors, such as heavy foot traffic, distractions, and congestion. Id. at ¶ 19. Continue reading

Last week, a self-driving vehicle operated by Uber struck and killed a pedestrian in Arizona. Uber’s car, which was utilizing an autonomous mode, similar to Tesla’s autopilot feature, struck and killed the pedestrian, Elaine Herzberg, around 10 p.m. At the time of the incident, there was a driver at the wheel, but the Uber car did not have any passengers. Even though the car was a self-driving car, a driver was at the wheel to take over in case the car’s autonomous system failed.

The fatal accident occurred as Ms. Herzberg was walking her bicycle across the street. The street she was crossing did not have a crosswalk and the speed limit was 45 miles-per-hour. At the time of impact, Uber’s car was going about 40 miles-per-hour. Initially, the driver of the Uber vehicle, stated that Ms. Herzberg “darted” out in front of the Uber vehicle and as a result, the driver was not able to stop the vehicle in time to avoid hitting her. However, video from the accident, which contains both interior and exterior views, shows that Ms. Herzberg was more than halfway across the road at the time of impact and that driver at the wheel of the Uber was looking down and not looking at the road at the time of the accident. Continue reading

Every year, thousands of people across the country are injured in car accidents with semi-trucks. In 2014, famed comedian and actor Tracy Morgan was severely injured, and his friend was killed, when a semi-truck rear-ended the limousine they were passengers in. The truck driver stated that he had been awake for more than 28 hours straight when his semi-truck rear-ended the limousine. The truck driver told officials that he had spent 12 hours driving his own vehicle from his home in Georgia to pick up his semi-truck in at a Walmart facility in Delaware. A spokesperson for Walmart stated that the company did not believe the semi-truck driver violated any federal safety regulations. The semi-truck driver later pled guilty to vehicular homicide and four counts of aggravated assault. The estate of the friend that was killed, James “Jimmy Mack” McNair, received a $10 million settlement with Walmart. Tracy Morgan also received an undisclosed amount in a settlement with Walmart. Continue reading

Last night, a Chicago Transit Authority (CTA) bus struck and killed a pedestrian in the West Chatham neighborhood in Chicago. The pedestrian was walking in the crosswalk in the first block of West 79th Street at around 7:30 p.m., when she was struck by the CTA bus. The pedestrian was pronounced dead at the scene. The CTA bus driver was later cited for failure to yield to a pedestrian in a crosswalk. A similar accident occurred last month, when another CTA bus struck a pedestrian in the Old Town neighborhood in Chicago. According to the Chicago Police Department, the pedestrian was walking in the crosswalk in the 100 block of West Division at around 4:30 a.m., when she was struck by the CTA bus. The pedestrian was taken to the emergency room and was treated for swelling and contusions.

Last summer, a CTA bus struck a mother and her three children as they were crossing the street in the Lakeview neighborhood. According to police, the mother and her children were crossing at the intersection of Halsted Street and Waveland Avenue around 10:15 a.m., when the CTA bus struck them. A witness to the collision told reporters that the infant being held by the mother flew out of the mother’s hands and violently struck the concrete. The children were taken to the emergency room at Lurie Children’s Hospital and the CTA bus driver was taken to the emergency room at Advocate Illinois Masonic Medical Center. The driver was later given a citation for failure to yield to pedestrians.

Continue reading

If you or a loved one has suffered a personal injury, it is important to know how the insurance company is going to evaluate your claim. Long gone are the days of a skilled insurance adjuster pouring through your records. Nowadays, most insurance companies use a software program, called Colossus, to evaluate your claim. Colossus takes the pressure off the insurance adjuster to evaluate your claim and allows the adjuster to input certain data into its system to arrive at what it thinks is an appropriate settlement number for your claim. Continue reading

As the weather starts to warm up, more and more motorcyclists will start hitting the roadways. With the increase of motorcyclists on the roadways, comes an increased danger of those motorcyclists getting into serious, and even life-threatening, accidents. According to the Insurance Information Institute, motorcyclists are more vulnerable on the road and are more likely to be injured or killed in a car accident than occupants in a car, bus, or truck.

In September 2017, three people were injured in a motorcycle accident in Henry County, Illinois. According to the Henry County Sheriff’s Office, a group of motorcycles were driving on U.S. Route 150, when two of the motorcycles crashed into each other. That same month in McHenry County, a sixty-three-year-old man was killed when a SUV struck his motorcycle. The Crystal Lake Police Department’s Accident Investigation Team, in reconstructing the accident, determined that the driver of the SUV, a seventeen-year-old boy, turned left in front of the motorcycle, striking the motorcycle. The motorcyclist later died at a local hospital. A similar occurrence happened in May 2017 in DeKalb County, where a twenty-six-year-old motorcyclist died after a SUV turned left in front of his motorcycle. The driver of the SUV stated that she did not see the motorcyclist before turning. The motorcyclist was pronounced dead at the scene. Continue reading

On February 13, 2018, the United States Department of Justice announced Michaels Stores agreed to enter into a consent decree and pay $1.5 million in a settlement agreement over its shattering glass vases. For more information about the initial complaint, filed April 21, 2015, in the U.S. District Court for the Northern District of Texas, by the Department of Justice, visit our previous blog HERE.

According to the Department of Justice, Michaels sold approximately 200,000 glass 20 inch vases between 2006 and 2010 in the United States and Canada that had the propensity to shatter and cause serious injuries. According to the lawsuit, the glass vases’ walls were too thin and could not withstand the pressure of normal handling. An engineering consultant utilized in one of Attorney John Malm’s cases discovered that vases being sold in Michaels’ stores were constructed of glass thinner than that in an ordinary light bulb. In at least one case wherein a glass vase shattered, a victim suffered permanent nerve damage. Several other customers suffered injuries requiring extensive surgery. According to the Department of Justice’s complaint, Michaels knew as early as 2007 that at least one customer had been injured by a glass vase, and at least four customers had been injured in the first half of 2009. Michaels did not report the glass vases’ safety issues and customers’ injuries until 2010, thereby violating the Consumer Product Safety Act. When it finally reported the vases’ safety issues, Michaels’ report was purposefully incomplete and misleading to avoid responsibility for the recall of the vases.

Continue reading

Last week, a Tesla Model S smashed into the back of a firetruck at a high rate of speed on a highway near Culver City, California. The firetruck was stopped for an accident on the highway. The driver of the Tesla reported that he had been using Tesla’s autopilot driver assistance system at the time of the crash and the autopilot system did not apply the vehicle’s brakes. Luckily, no one was injured as a result of the crash. The National Highway Transportation Safety Administration is currently investigating the crash.

Continue reading

Every year, people are injured by unsafe and defective products.  Product Liability Law concerns cases in which a person is injured by a defective product. What is product liability? See our previous blog HERE and our webpage HERE for a breakdown on the basics of product liability.

In Illinois, there are two main ways of proving a product liability case:

  1. Consumer-Expectation Test:

Under the consumer-expectation test, a plaintiff must establish what an ordinary consumer purchasing the product would expect about the product and its safety.  This standard applies the objective view of the normal, average expectations of a reasonable person. This test does not apply the subjective expectations of the actual purchasing consumer. Calles v. Scripto-Tokai Corp., 224 Ill.2d 247,254 (2007). The consumer-expectation test allows for easy application by the average juror. Each juror can determine what an ordinary person purchasing the product in question would expect of that product and its safety.

Continue reading

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.
Continue reading