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DuPage County Dog Bite Lawyers: Protecting your rights under the Illinois Animal Control Act

March 24, 2012 | John J. Malm

Dog bites and animal attacks are more common than most people think. Often, the disfiguring injuries that result are never reported to animal control officials. Every year in the U.S., there are nearly 4.7 million dog bites, 800,000 of the attacks require medical attention. To compensate for the harm caused by dog bites, the insurance industry pays over $1 billion in claims each year.

Illinois has enacted laws designed to protect the rights of those who have suffered an injury due to an animal attack. Previously, under the common law, a person injured by a dog could recover only by proving that the dog had previously manifested a disposition to bite or cause harm, and that the owners of the dog were aware of the dog’s harmful disposition. This was known as the “one bite rule.” Although the rules set forth under the common law still exist, the Illinois Animal Control Act now provides an easier remedy for dog bite victims. Under the Animal Control Act, dog bite victims no longer need to prove that the dog owner had prior knowledge of the animal’s vicious nature. The Act makes it easier to plead and prove a dog bite injury case.
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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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Insurance Subrogation Liens: The Common Fund Doctrine in Illinois

January 9, 2012 | John J. Malm

The common fund doctrine serves to limit an insurance company’s recovery of insurance liens from a Plaintiff’s settlement. The common fund doctrine is an exception to the American rule on attorney’s fees. Typically, each party is responsible for their own attorney’s fees unless there is a statute or an agreement between the parties to the contrary. However, the common fund doctrine allows an attorney to collect a reasonable fee from a fund created through the attorney’s efforts. The rationale is to prevent the unjust enrichment of other parties, such as an insurance company, through the lawyer’s hard work, without paying their fair share.

Commonly, this doctrine is applied in cases involving car accidents, pedestrian accidents, and bicycle accidents in which the plaintiff’s insurance company has paid for medical expenses for the plaintiff’s injuries and is seeking repayment from the at-fault defendant’s insurance company. For the common fund doctrine to apply, the attorney must create the fund through legal services, the subrogee or claimant must not have participated in bringing about the creation of the fund, and the subrogee received a benefit from the common fund. However, the doctrine will not apply when the subrogee expresses a prompt, clear, and unequivocal desire to pursue its own subrogation claim against the defendant’s insurance company.
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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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Car Accidents: Reading an Illinois Traffic Crash Report

October 3, 2011 | John J. Malm

Illinois Traffic Crash Reports are made by the police when a vehicle is involved in a collision (See an example Illinois Traffic Crash Report here). They are used for vehicle crashes, vehicle collisions with a pedestrian, and vehicle collisions with a bicyclist. If police are called to the scene of a collision, an Illinois Crash Report will be filled out. A more detailed report will be made if there is a death, serious injury, or if a vehicle has to be towed from the scene.

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The basic information included in the Crash Report is the street or intersection where the accident occurred, the municipality where the accident occurred, the county where the accident occurred, as well as the date, and the time of the accident. This information can be found in the box at the top of the report.
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Illinois Personal Injury Settlements: Healthcare Liens

August 17, 2011 | John J. Malm

When a Plaintiff settles his personal injury claim, he may also have one or more liens against the amount of the recovery. Healthcare liens against a settlement may be asserted by the medical providers who have treated and rehabilitated the Plaintiff after suffering an injury. These liens are covered by the Health Care Services Lien Act. 770 ILCS 23/1, et seq. Any licensed hospital, doctor, or physical therapist which has provided medical services may elect to place a lien on the claim.

If the Plaintiff recovers a settlement or judgment, notice of the recovery must be given to each lien holder. The lien holder may seek payment of the amount of reasonable charges which remain unpaid. The Health Care Services Lien Act places limitations on the amount a lien holder can recover from the settlement or judgment.
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Illinois Uninsured/Underinsured Claims

June 7, 2011 | John J. Malm

An uninsured/underinsured (UM/UIM) claim often arises after a car accident. If the person at-fault for the accident flees the scene and is unable to be located, or if the person at-fault does not have insurance or has inadequate insurance, an uninsured/underinsured claim (sometimes called, “UM/UIM”) should be brought immediately. UM/UIM claims often arise in pedestrian accidents, bicycle accidents, and hit & run accidents.

In a typical liability car accident case, notice to the other party need not be given before filing a complaint. Contrastingly, when making a UM/UIM claim, there are strict notice provisions that must be met before the claim can proceed. A UM/UIM claim is made against the Plaintiff’s own insurance company, and the requirements for the notice provisions may be found in the Plaintiff’s insurance contract. In most instances, it is best to have your attorney inform the insurance company of the claim, in writing, via certified mail, as soon as possible. Giving notice and demanding arbitration under the policy is not the equivalent of filing a lawsuit. It merely informs the insurance company that a claim exists, and it allows the insurer to begin investigating the claim. Failure to provide timely notice with a proper demand for arbitration can result in waiver of the claim, even if there is no prejudice to the insurer.
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