HUNDLEY LAW GROUP » Case Law Notebook

Court Allows Passenger Claim Against CTA

HLG — Fri, 18 Feb 2011 21:26:57 +0000

Claims against any defendant for injuries caused by an independent third party always pose challenges for plaintiffs. At the Hundley Law Group, we evaluate these claims to determine whether or not the action, inactions, or policies of the institutional defendant (often the landowner or a common carrier) can be found to have legally contributed to our client’s injuries. In Torf v. Chicago Transit Authority, No. 1-09-1710 (11/12/10, Corrected 12/8/10), the Illinois Appellate Court permitted this type of claim to go forward against the CTA.

In this instance, the Plaintiff was injured while she was attempting to evacuate a CTA train, per the CTA’s order, because a person on tracks ahead was apparently threatening suicide. The Plaintiff fell when two other passengers pushed her while exiting. The Appellate Court held that the trial court had improperly granted summary judgment for CTA, which had claimed that it cannot be held responsible for a battery committed by a third party. Battery, however, is an intentional act, and the facts of the case were not sufficient to conclude that the third parties had battered the plaintiff.

Message in Wisconsin: Lowering minimum insurance limits is bad policy

HLG — Fri, 11 Feb 2011 21:22:16 +0000

Associated Press (2/7, Bauer) reported, “Minimum levels of car insurance that were increased two years ago would drop back down again under a bill up for a vote in the state Senate.” The bill would also make underinsured coverage voluntary, and allow insurers to categorize first-time buyers in a high-risk, higher-cost category. Wisconsin Association for Justice President-elect Edward Vopal and the WAJ has argued “the law will allow for changes in policies that drivers won’t know exist but that limit their coverage and make it tougher for them to collect following an accident.” Trial lawyers and Dems said “undoing the increases will allow insurance companies to provide less coverage but not lower rates or premiums accordingly.

One Claim of Fatal Medical Neglect of Prisoner Upheld

HLG — Mon, 01 Nov 2010 22:00:59 +0000

Gayton v. McCoy, No. 08-2187 (1/28/10) The Seventh Circuit Court of Appeals has upheld summary judgment in favor of several of the defendants (certain prison officials and medical personnel) in a Section 1983 civil rights action. The court found that the defendants did not violate the plaintiff-prisoner’s due process rights by failing to provide adequate medical care resulting in plaintiff’s death from a serious heart condition. The defendants who were dismissed were found to have either had no contact with plaintiff or attempted to assist the plaintiff, thereby not displaying deliberate indifference. However, the court reinstated the case against one nurse defendant who was aware of plaintiff’s heart condition, but allegedly refused to see her despite plaintiff demonstrating symptoms consistent with serious heart condition. In addition, the court found that the trial court committed error in failing to consider the opinions of the plaintiff’s expert linking plaintiff’s vomiting with her heart condition.

Some Post-Hudson Clarity – Green v. Northwest Community Hospital

HLG — Thu, 06 May 2010 16:30:14 +0000

Green v. Northwest Community Hospital, No.1-09-2233 (April 28, 2010). In the uncertain post-Hudson landscape of when a plaintiff’s voluntary dismissal does or does not prevent a re-filing, this First District decision provides some clarity as to dismissal language that will steer clear of the “claim splitting” addressed in the Illinois Supreme Court’s case of Hudson v. City of Chicago. That language: “plaintiff is granted leave to voluntarily dismiss with leave to reinstate as a matter of right.” Since this language was held to be a clear pronouncement that the voluntary dismissal was an exception to claim-splitting, the refiled counts not finally disposed of in the original action were permitted to proceed. (The plaintiff also re-filed counts for which summary judgment was granted in the original case. Those counts, not surprisingly, were not allowed to survive.) For those of us who write appeals, the case also affirms the pronouncement in Sup. Ct. R. 341(h)(7): that points raised by an appellant for the first time in a reply brief are waived.

Recovery for slip and fall injuries is further muddied – Hope v. Hope

HLG — Wed, 05 May 2010 15:11:32 +0000

Hope v. Hope , No. 4-09-0707 (March 4, 2010). The fourth district upheld summary judgment for homeowner parents whose young adult daughter fell descending muddy steps (caused by the mother’s gardening activities). The daughter had encountered the muddy steps earlier in the day when she arrived at her parents’ home, but relied on the distraction exception, stating that while in the house (eating, sleeping, studying, and watching TV) she had forgotten about mud being on steps. The court held that since those activities did not occur during her fall, as is the case in other applications of the distraction exception, the exception did not apply. Essentially the court held that the distraction exception is not a “forgetfulness exception.” That sounds fine, except that the language that the court quotes from the Illinois Supreme Court’s decision in Rexroad v. City of Springfield, 207 Ill. 2d 33 (2003), states quite clearly that the exception is meant if a person will “be distracted . . . or will forget what he has discovered or will fail to protect himself against it.”

Dobyns v. Chung, M.D.

HLG — Mon, 26 Apr 2010 17:15:58 +0000

Dobyns v. Chung, M.D. , No. 5-07-0568 (April 7, 2010) Dealing a blow to the plaintiff’s decedent in a wrongful death case filed by widower alleging that the defendant physician over-prescribed narcotics and failed to adequately warn her about risk the of harm from taking several kinds together, the Fifth District of the Illinois Appellate Court upheld the jury’s $100,000 verdict to the husband their two children, reduced by 50% for contributory negligence for a total of $50,000. The court found that the verdict was not manifestly inadequate, despite the fact that the defense counsel had remarked during closing that if the jury found the doctor negligent, a verdict of about $1 million would be fair. According to the majority, one cannot engage in a “mathematical computation” and compare similar wrongful death verdicts in the state. In dissent, however, Justice Chapman stated that despite the great deference to be give to jury verdicts, an award of “$100,000 divided among the three survivors . . . trivializes the impact her death had on her family.”

Simmons v. Homatas

HLG — Thu, 25 Mar 2010 16:36:35 +0000

Simmons v. Homatas, No. 108108 (March 18, 2010) The Illinois Supreme Court held that a BYOB strip club that placed an intoxicated patron into his car after ejecting him from the club could not benefit from the liability shield of the the dram shop act and would be held accountable for a duty of care in its role in causing the driver’s collision 15 minutes later. The club’s personnel brought the driver’s car around, opened driver’s side door, and told them to leave. The subsequent collision killed the driver’s passenger and also other vehicle’s passenger and her unborn child.

Mason v. Smithkline Beecham Corp.

HLG — Tue, 02 Mar 2010 16:26:18 +0000

Mason v. Smithkline Beecham Corp., No. 08-2265 (February 23, 2010) The 7th Circuit held that the district court erred in granting defendant-drug manufacturer’s motion for summary judgment in state law claims alleging that defendant was negligent for failing to warn plaintiffs’ decedent that taking Paxil increased risk of suicide among young adults. The district court had incorrectly relied upon the US Supreme Court’s Wyeth decision (129 SCt 1187), because in this case, the plaintiff’s claims were not preempted since defendant failed to establish – under the clear evidence standard – that the FDA would have rejected plaintiffs’ proposed warning.

People v. Hammonds

HLG — Tue, 23 Feb 2010 22:30:50 +0000

People v. Hammonds, No. 1-08-0194 (February 11, 2010). In a criminal case, appellate court seems to have upheld the “Cook County Rule” that it is not error for the trial court to have allowed police officers to testify about radio messages they received from other officers, as the other officers were also trial witnesses.

Martinez v. Elias, M.D.

HLG — Tue, 23 Feb 2010 21:00:58 +0000

Martinez v. Elias, M.D., No. 1-08-0265 (December 28, 2009). Court properly denied motion in limine to bar evidence of financial motive to perform surgery, which plaintiff claimed was unnecessarily performed by defendant orthopedic surgeon, therefore deviating from the standard of care. Motion for new trial was denied, but the court reversed a remittitur for $100,000 because the testimony was sufficient to support jury’s award of $100,000 for non-itemized future medical expenses.