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| Leading Illinois Personal Injury Law: General Attorneys |
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Degree of Fault Needed to Recover
There are three kinds of torts -- negligence, intentional misconduct, and strict liability. Each requires the plaintiff to show a different degree of fault to recover from the defendant.
Illinois has a comparative fault rule. Under the comparative fault rule, a judge reduces the amount of any damage award by the percent that the victim's own actions contributed to his or her injuries. For example, if a jury finds that a plaintiff suffered $100,000 in damages, but was 30 percent at fault, the judge reduces the damage award by 30 percent to $70,000. The reduction may be made only up to 50 percent. If the victim is more than 50 percent at fault, he or she collects nothing.
Vicarious Liability
There are several ways a person can be held liable for the actions of another person. This is known as vicarious liability. For example, a parent might be held responsible for damage caused by his or her child if the parent knows that the child is likely to injure someone, the parent has the ability to control the child, and the parent negligently fails to exercise any control over the child. The owner of a vehicle can be held responsible for accidents caused when another person drives the vehicle if the owner negligently entrusts the vehicle to the other driver. The most common form of vicarious liability is called respondeat superior Under respondeat superior, an employer is responsible for torts committed by employees within the scope of their employment. A business owner is not usually responsible for acts committed by independent contractors. For example, if a pedestrian is struck and injured by a person driving to a party, the victim has a claim against the driver. If the pedestrian is hit by a person driving a delivery van for his or her employer, then respondeat superior gives the pedestrian claims against both the driver and the employer. As a practical matter, personal injury plaintiffs often focus their recovery efforts on the employers because employers usually have more money or better insurance.
Burden of Proof
The burden of proof in a civil lawsuit is less strict than the proof required in a criminal case. In a criminal case, the state must prove a person's guilt beyond a reasonable doubt. The state is required to meet this high standard because a defendant's liberty, and possibly even life, are at stake. The plaintiff in a personal injury lawsuit need only show that it is more probable than not that an injury was caused by the defendant's actions. If the jury finds that the evidence even slightly favors the injured party, then it must find for the plaintiff. The personal injury plaintiff need only meet this lower standard because the defendant's life and liberty are not at stake.
Defenses
Sometimes people are allowed, or privileged, to commit acts that otherwise constitute assault or battery, and not be liable for damages. If one acts in defense of self, others, or one's land, the use of force can be justified. Illinois has a "Good Samaritan" law that states that a civilian has no duty to provide aid to an injured person; however, once a person voluntarily assists someone, he or she becomes liable for any injury that results from the failure to exercise due care. Law enforcement officials and firefighters have a defense to liability if they injure someone while providing good-faith emergency care. For example, if a firefighter responds to a call and in trying to help the victim accidentally worsens the victim's injury, the firefighter has a defense to charges of assault and battery.
Damages
The damages a victim may collect depend on the type of tort alleged. For torts to the body, a plaintiff can collect lost wages, diminished earning capacity, costs of medical care, pain, and suffering. For torts to property, a plaintiff can recover diminished value of the property, replacement costs, or cost of repair.
In a lawsuit alleging intentional misconduct, the plaintiff often may be able to recover punitive damages in addition to any awards for injuries, pain, and suffering. Punitive damages, designed to punish people or organizations for unlawful acts, are usually very large sums of money. Until recently, there were few limits to punitive damages. Although federal and state legislatures have recently passed laws capping punitive damages in certain types of cases, it can still be to the plaintiff's advantage to convince a jury that injuries were the result of an intentional act and not mere negligence.
A wrongful death lawsuit is a lawsuit filed by the surviving relatives of a person. For example, under Illinois law, any dependent heirs, such as sons or daughters, of a person killed by a defective product can sue the manufacturer for loss of that person's future income. Surviving relatives cannot, however, sue a manufacturer to collect damages for the pain and suffering of a person wrongfully killed by a manufacturer's defective product. However, the estate of the deceased person can sue to collect money needed to pay any bills for medical treatment received by the person before he or she died.
A surviving spouse can sue for damages to recover for loss of advice, comfort, assistance, and protection. Illinois recognizes a viable fetus as a "person." Therefore, any personal injury action that can be brought by one who was born can also be brought on behalf of an unborn, viable fetus.
Suing the Government
There was a time when citizens could not sue the government for torts committed by government employees. The federal and state governments enjoyed complete immunity from tort lawsuits. This immunity has been partially waived, but there are limits on tort actions against the government. Although the federal and most state governments now permit suits for personal injuries suffered because of the negligence of a government employee or as a result of a dangerous condition on government property, there are limits on how much can be collected and when a suit must be initiated. Typically, the State of Illinois may only be sued in the Court of Claims for actions of breach of contract with the state, tort by an agent of the state, and tort by an escaped inmate.
Product Liability
Injuries resulting from defective products are the basis of some personal injury lawsuits. Product liability lawsuits frequently receive attention in the media. Stories of people recovering damages for faulty breast implants, exploding gas tanks, or flammable children's clothing all make headlines. Because a faulty product line can injure many people, product liability lawsuits are sometimes brought as class action lawsuits in which many injured people -- the class -- bring one united lawsuit against the manufacturer, share legal costs, and split any award.
Product liability claims usually rely on one of three theories: strict liability, negligence, or breach of warranty. Each of these has its standards and potential damages. Often a single injury leads a plaintiff to bring claims under all three theories against the manufacturer. For example, a person injured when a microwave oven explodes might allege that the oven's manufacturer breached a warranty, negligently manufactured the oven, and that the oven was so dangerous that its manufacturer should be held strictly liable for all injuries it caused.
Under this theory, the manufacturer of the faulty chair might be liable if the company did not conduct reasonable inspections to ensure that products were checked for defects before being sold to consumers. It is important to note that the manufacturer is not negligent merely for failing to produce a perfectly safe product. Illinois courts use a reasonable care balancing test that asks jurors to balance the likelihood and seriousness of harm against the feasibility and burden of possible precautions that might have avoided the harm. For example, manufacturers might not be required to install a safety feature if doing so would make the product prohibitively expensive or impossible to use. In these cases, the manufacturer has a duty to warn users of the product of the risks associated with its use so that users can protect themselves. This is why ladders, for example, have so many warnings on them. No ladder can be made perfectly safe, so manufacturers warn consumers of their dangers.
Some of the most convincing evidence of negligence is evidence of the actions of other manufacturers of similar products. If a manufacturer fails to take precautions or to provide warnings that are standard in the industry, there is a strong likelihood a jury will find that the manufacturer was negligent.
Assault and Battery
Many people believe that assault and battery are one action. They are actually two closely related but distinct actions. Assault is the attempt or threat to inflict injury on another person when coupled with the apparent ability to carry out the attempt or threat. Assault does not require actual physical contact. For example, if someone threatens to strike a neighbor and appears capable of carrying out the threat, the person making the threat may be liable for assault even though he or she never touches the neighbor. Battery is similar to assault but requires actual unwelcome physical contact. The physical contact need not be so strong as to injure the other person. For example, a person can commit battery by touching another person in an unwelcome sexual manner.
Illegal Confinement
Illegal confinement, also known as false imprisonment, is confinement by force, threats of force, or physical barriers when one has no right to do so. Unlike in other states, Illinois merchants are not permitted to make a person suspected of shoplifting wait against his or her wishes for the police to arrive. If the merchant keeps the suspect longer than is reasonable or necessary under the circumstances (beyond the person's wishes), the merchant may be liable for illegal confinement.
Landowner Liability
There are several ways a landowner may be liable to someone injured on the landowner's property. Business owners and home owners may be sued if they do something wrong that causes others to be injured on their property. A business owner sometimes is sued for injuries caused by people committing crimes on his or her property if the business owner did not take appropriate measures to ensure the safety of customers. An example of this type of case occurs when a person is attacked in a parking lot and then sues the lot's owner for failing to provide security measures that could have prevented the attack.
In general, a landowner is not liable for the injuries of a trespasser; however, the landowner must take reasonable care to protect the people he or she knows come on the property for legitimate purposes, such as letter carriers. A landowner may be responsible to children injured on his or her property if there is something on the property -- like a swimming pool -- that is dangerous, the children are likely to exercise less care than adults, and the landowner fails to exercise sufficient care to prevent injury to a reasonable child. Other states place a greater liability on landowners in this scenario through what is commonly called the "attractive nuisance doctrine." Illinois does not recognize the attractive nuisance theory.
Workers' Compensation
Illinois' workers' compensation system compensates workers for injuries occurring in the workplace. Without a workers' compensation system, workers injured on the job would have to prove that their employers' negligence led to the injury. Because the system does not require proving negligence, a worker injured on the job has a better chance of being compensated than if he or she is injured in some other way and has to file a civil lawsuit. Instead of filing suit, a worker notifies her employer of the injury and the employer then contacts its insurance carrier, which handles payment of any medical bill and other claims made by the employee. All employers subject to the Illinois Workers' Compensation Act must either carry workers' compensation insurance or demonstrate they have the financial resources to cover any reasonably anticipated claims.
The trade-off for this relatively easy route to compensation is a limit to the amount of money that can be awarded for a work-related injury. With few exceptions, employers or their insurers are only required to pay for medical expenses, permanent injuries, and/or lost wages. An employer cannot be made to pay for emotional distress such as pain and suffering.
Often a worker contacts an attorney because the employer or its insurance carrier refuses to pay a workers' compensation claim, maintaining that either the injury was not work-related or that the benefits demanded exceed those justified for the injury. Sometimes a dispute arises after an employer stops making workers' compensation payments. When disputes arise, a worker has a variety of options, including an administrative conference, small claims court, or -- as a final option -- a hearing before a workers' compensation judge.
The most common way to resolve disputes is through a semi-formal administrative conference, subject to rules established by the Illinois Department of Labor and Industry. At the conference, a Department representative acts as an informal mediator and referee who decides what kind of evidence may be considered by those attending. Typically, the employer, an investigator from the insurance company if the employer is not self-insured, the Department representative, the injured employee, and the employee's attorney attend the conference. The goal of a conference is to reach a voluntary resolution to the dispute. If the parties cannot resolve their dispute, the Department representative issues a judgment that everyone is obligated to follow. Such a judgment can be appealed to the Department by anyone involved in the conference.
Going to small claims court is another way to resolve disputes over a workers' compensation claim. Both the employer and employee, however, must agree to turn over the dispute to a conciliation court, and the amount of the dispute cannot exceed $5000. Either party can decide whether to be represented by an attorney in such a proceeding.
Finally, a dispute over a workers' compensation claim can be taken to a special workers' compensation court, where a judge will formally hear evidence about the injury and will resolve the dispute in a written decision that both sides must follow. Anyone disagreeing with the decision has a right to appeal it to the Illinois Workers' Compensation Court of Appeals and, if still unsatisfied, to the Illinois Supreme Court.
The Products Liability Resource Manual: An Attorney's Guide to Analyzing Issues, Developing Strategies, and Winning Cases, James T. O'Reilly and Nancy C. Cody, American Bar Association General Practice Section, Chicago, IL, 1993.
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