Personal Injury Legal Theories Attorney Blog

Published on: June 2, 2017

Supreme Court Reverses Decision Rejecting Arbitration Agreement Between Nursing Home and Residents

Photo Credit: designer491 / Shutterstock.com

Earlier this month, the United States Supreme Court decided a case that may have a major effect on nursing home claims throughout the United States. In Kindred Nursing Centers, L.P. v. Clark, the court held that state courts cannot adopt rules that single out arbitration agreements for negative treatment.

Facts of the Case

In the case, two individuals each held a power of attorney respectively for their relatives, who were nursing home residents. When the relatives moved into the nursing home, the family members signed arbitration agreements on behalf of the residents at the same nursing home. After both of the residents died, their estates sued the nursing home, alleging that the home had been negligent in caring for them. The nursing home tried to force the plaintiffs into arbitration, claiming they had agreed to settle their claims through arbitration, according to the agreements.

Kentucky’s Supreme Court found that the family members could not enter into the agreements on behalf of the residents because the residents had not expressly given permission for the plaintiffs to do so. The Kentucky Supreme Court did not give effect to the arbitration agreements because it decided that in the case of arbitration agreements, an individual must specifically waive his constitutional right to a jury trial.

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Published on: May 17, 2017

Determining Liability in Illinois Multi-Vehicle Car Accidents

By Moll Law Group

Personal injury claims arising out of car accidents usually involve acts of negligence, and they often involve multiple parties. For example, there may be allegations that a driver failed to obey traffic laws, failed to drive safely considering the conditions, or failed to properly maintain the vehicle’s brakes. There also may be allegations that a driver was negligent in responding to another driver’s actions or violated a traffic rule or law.

Depending on the circumstances surrounding an accident, if a driver violated a statute, ordinance, or traffic regulation, it may be considered negligence per se. If so, the driver’s conduct may give rise to a rebuttable presumption of negligence, or it may be considered evidence of negligence. In cases involving multiple parties, each party’s actions may come under scrutiny, potentially reducing the plaintiff’s compensation.

Comparative Negligence

Traditionally, under a different doctrine called contributory negligence, if a plaintiff was found to be partially at fault, the plaintiff could not recover any compensation from the defendant. However, today Illinois follows the doctrine of modified comparative negligence. Under the doctrine of comparative fault, or comparative negligence, a plaintiff’s recovery may be reduced by their own percentage of fault.

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Published on: February 6, 2017

Plaintiff’s Award Initially Reduced Due to Insurance Coverage but Restored on Appeal

By Moll Law Group

In a recent case, the plaintiff brought a personal injury claim against another driver and his company after he was injured in a car accident. The case proceeded to trial, and a jury found in favor of the plaintiff. The jury awarded him $84,283 in economic damages and $40,000 in noneconomic damages.

The defendants argued the award should be reduced, since the plaintiff paid only $1,941 toward his medical expenses, and his insurance had paid the rest. Initially, the trial court agreed and reduced the award to $24,299. It took the original economic damages award and reduced it by the cost to secure the collateral source benefits of approximately $58,000, resulting in the award of $24,299.

However, the state’s supreme court reversed the case on appeal and held the plaintiff’s award should not have been reduced. The court explained that normally, a state statute allowed an award to be reduced if the expenses were paid by another source. But the court further explained that this rule did not apply if the other payer was entitled to reimbursement from the plaintiff. Since in this case, the insurance company had a right to be reimbursed, even if only for a portion of the amount, the award should not have been reduced.

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Published on: January 25, 2017

Punitive Damages Permit Plaintiffs to Recover Greater Awards and Punish Bad Behavior

By Moll Law Group

In civil claims, when a jury finds in favor of the plaintiff, the plaintiff is generally awarded damages to compensate for the injuries or damages incurred. Compensatory damages are often awarded to compensate the plaintiff for medical expenses, lost wages, mental distress, and other losses.

Punitive damages can also be awarded to plaintiffs in certain cases. In contrast to compensatory damages that are meant to compensate the plaintiff, punitive damages are awarded to punish the defendant for bad behavior and to deter others from engaging in such behavior.

Illinois law permits punitive damages awards if the defendant’s behavior demonstrated “an evil motive” or a “reckless indifference to the rights of others.” In Illinois, punitive damages are awarded for three reasons: to deter the defendant from engaging in such behavior, to deter others from engaging in similar behavior, and to punish the defendant. In state law claims, punitive damages can be as much as three times the economic damages award. In other states and jurisdictions, the amount of allowable punitive damages varies. In any case, a punitive damages award can greatly increase the compensation a plaintiff receives, when it is available.

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Published on: January 5, 2017

Illinois Woman Fails to Show Store Was Negligent After She Falls on Rocks in Parking Lot

By Moll Law Group

In a recent case, a woman sued a store alleging negligence after she fell in a parking lot. According to the court’s written opinion, the plaintiff was shopping with her husband in Hodgkins, Illinois when she fell after stepping on some small rocks in a parking lot. The plaintiff suffered a serious injury as a result of her fall and filed a premises liability lawsuit against the store.

Apparently, the area where she fell was outside the entrance to the defendant’s home improvement store. Near the entrance, there was a planter with a small tree inside, which was filled with decorative river rocks similar to those on which the plaintiff had stepped. The store also sold these rocks. Witnesses testified that the planter needed to be refilled from time to time, and one of the store’s managers had seen children playing in the planter on occasion. The store’s general manager testified that he walked through the store and the parking lot every day to check for safety hazards. In addition, he testified that other employees walked through the parking lot during the day and were required to report any hazards.

In response to the claim against it, the store moved for summary judgment, and a federal court granted the motion. A federal appeals court agreed and determined there was not sufficient evidence to proceed to trial on whether the store’s negligence caused the woman’s fall. The court explained there was no direct or circumstantial evidence indicating the store was responsible for the rocks being in the parking lot, rather than the rocks’ presence being caused by another customer. Although the woman argued an employee’s action could have caused the rocks to be there, it was only speculation. In addition, there was no evidence that the store knew or should have known of the danger of fallen rocks. Furthermore, there was no evidence of any other incidents involving rocks in the parking lot or of fallen rocks or past complaints. As a result, the case was dismissed.

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Published on: December 14, 2016

Court Reinstates Case After Attorney Admits Fault in Failing to Pay Court Fees

By Moll Law Group

Following the court rules may seem like a basic concept, but failing to follow them can have a devastating impact in a case. A recent case demonstrates how an attorney’s oversight almost resulted in the permanent dismissal of a case.

A woman sued the Greyhound bus company after she was injured on a Greyhound bus. The woman claimed the driver was driving too fast, and as a result, the driver hit two other cars and crashed into a tree. Greyhound made a motion to move the case to another county because the accident occurred in that county, and most of the defendants were domiciled there. The court granted the motion and agreed to have the case moved. The court also ordered the woman to pay the transfer fees for moving the case.

Greyhound sent a notice to the woman, asking to have the transfer fees paid, but the woman did not respond. The court required the transfer fees to be paid within 30 days, or the case could be dismissed. After the woman failed to pay the transfer fees within 30 days, Greyhound moved to dismiss the case. The court granted the motion, based on the woman’s failure to pay the fees.

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Published on: December 2, 2016

Court Discusses “Foreseeability” Requirement in Chain-Reaction Truck Accident Case

By Moll Law Group

This fall, an appellate court in Mississippi issued a written opinion affirming the dismissal of a case against a truck driver and his employer on the ground that the injuries sustained by the plaintiff were not a foreseeable consequence of the defendants’ allegedly negligent actions. In the case, Ready v. RWI Transportation, the court held the defendant truck driver and his employer could not be held liable because the plaintiff’s injuries were too far removed in time and physical proximity from the defendants’ alleged act of negligence.

The Facts of the Case

The defendants were a truck driver and his employer. On the day in question, the defendant truck driver caused an accident on the highway when he made an improper lane change. As a result of the collision, the defendant’s truck as well as another vehicle blocked traffic, causing a traffic jam to form.

Approximately one hour later, while traffic was still slowed from the original accident, the plaintiff approached the traffic jam and crashed into the rear of another vehicle that had come to a complete stop. This accident occurred approximately three-quarters of a mile away from the original accident. The plaintiff filed a personal injury lawsuit against the truck driver and the driver’s employer.

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Published on: November 23, 2016

Plaintiff’s Expert’s Conclusions Protected by Work Product Doctrine

By Moll Law Group

In a recent case, a man sued the maker of his utility terrain vehicle (UTV) after the UTV overturned, and the roof failed, causing his injuries. The man designated four expert witnesses to testify in his case at trial. For one of the experts he designated, the man said the expert would testify as to the UTV’s performance, the forces involved in the accident, and factors affecting the UTV’s performance. The man did not explain the expert’s analysis or his conclusions on the issues in the case. Shortly afterward, the man told the defendant and the court that he was no longer going to use the expert as one of his witnesses. However, the defendant then requested to have the expert’s deposition taken, seemingly to find out what his conclusions were.

The plaintiff objected, arguing that the expert’s opinions and conclusions were protected by the “work product doctrine”—a doctrine that protects materials prepared for or by an attorney in anticipation of litigation. The defendant argued the plaintiff had waived any protection under the work product protection because, as an expert, the conclusions would have been disclosed.

The trial court agreed with the defendant, finding that the plaintiff had waived the protections of the work product doctrine by designating the expert as a witness. However, the state’s supreme court reversed. The court concluded that a party designating an expert witness by itself is not a waiver of the work product doctrine. It also concluded that in this case, the man’s actions did not waive the work product privilege. As a result, the expert’s conclusions were protected under the work product doctrine, and the plaintiff did not have disclose them to the defendants.

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Published on: September 30, 2016

Court Determines that Land Surveyors Are Considered “Professionals” for Negligence Claims

By Moll Law Group

A man filed a negligence case against a land surveyor after he tripped and fell on a stake while on his own land. The stake had been placed there by a surveyor while he was performing a survey of the land. When the surveyor had surveyed the land, he marked the boundary of the property with wooden stakes tied with ribbons, which were driven into the ground. They were surrounded by grass but still visible. Shortly after the completion of the survey, the landowner was unloading some equipment into a storage building when he tripped on one of the survey stakes. He seriously injured his hip and then sued the land surveyor for negligence. An appellate court recently issued an opinion in the case.

The plaintiff did not present an expert witness to support his case. The surveyor argued that the plaintiff was required to show that his conduct fell below the standard of care in his placement and removal of the stakes. The plaintiff argued that placing stakes in a way in which they were not clearly visible was ordinary negligence, rather than professional negligence. He also argued that it was within the common knowledge of laypersons and that an expert was not required under the “common knowledge” exception. Under the common knowledge exception, a party can make out a case of professional negligence without expert testimony in cases in which the evidence and alleged negligent conduct is within the understanding of laypersons.

First, the court had to decide whether or not land surveyors are “professionals” in order to decide whether expert testimony was required. The court found that based on the specialized knowledge, high standards, and continuing education of surveyors, registered surveyors are technically professionals. Since the defendant was a professional, a plaintiff is normally required to present expert testimony to establish the standard of care.

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Published on: August 29, 2016

Personal Injury Settlements Are Subject to Court Approval, and They May Be Thrown Out if the Presiding Judge Rejects the Terms

By Moll Law Group

Settlements can be an effective and beneficial way for both parties to resolve a case without having to go through a trial. However, some settlements can be thrown out if they are not approved by a judge, causing the litigation process to continue.

Personal Injury Settlements in Illinois

Although a plaintiff has the freedom to decide whether or not to file a claim, once a claim is filed in Illinois, the plaintiff does not always have the freedom to voluntarily dismiss a case. Some claims, such as class actions and claims by minors, may require court approval.

In Illinois, an approved settlement generally results in a voluntary dismissal of the case for the plaintiff. Generally, such a dismissal is taken “with prejudice,” which means that the claim cannot be brought again. In addition, the court that granted the dismissal generally retains jurisdiction of the case to enforce the terms of the settlement. Finally, it is important to note that if a claim is settled, normally it cannot later be challenged unless there was a mistake or fraud.

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