Illinois Personal Injury Lawyer Blog
After a fairly dreary spring here in Chicagoland, the weather has turned, and we can all enjoy the outdoors. For many people this also means it is time to dust of the motorcycles and head out for a bike ride. Whether you choose to ride a motorcycle or not, if you are on the roads you need to be aware that motorcycles are out there. Many motorcycle accidents that occur are the result of operators of cars not seeing a bike on the road. Hence the slogan, “Start Seeing Motorcycles” which has become popular. The negligence of other motorists causes numerous crashes which cause motorcycle injuries. Motorcyclists need to do their part too, not only keeping a lookout for the very motorists who do not see them, but also making it easy to been seen by others. As taught in many basic rider courses, motorcyclists should shy away from all-black outfits, dark riding gear, and even dark-colored bikes. Retro-reflective accents, bright jackets, and easy to see helmets can all literally save your life on a motorcycle as they can help make you visible to another driver on the road who otherwise might not see you. But, while it is very difficult to prevent the negligence of another driver on the road, there is one thing that every motorcycle rider can do to help prevent serious personal injury while riding a bike: wear a helmet. While Illinois does not require helmets (nor do 30 other states, when it comes to adult riders) wearing a properly fitting helmet is the single best step you can take with your gear to save your life if a motorcycle accident should occur. Personal injury attorneys encounter motorcycle accidents all the time, and one of the first questions an injury attorney will ask a rider involved in a motorcycle crash is: “were you wearing a helmet?” Sadly, if the victim is unable to answer due to catastrophic injury, or death, the attorney usually already knows the answer. Be safe on the roads, and be mindful of motorcycles, whether you ride or not. If you do ride a motorcycle and are injured in a crash, contact a personal injury attorney as soon as possible so you can be informed about what your rights are, and how to handle any claims you may have. For all you riders out there, enjoy the riding season, and safe travels.
Personal Injury Litigation – What Is Mediation?
Mediation is a form of “alternative dispute resolution” where the parties agree to let a person outside of the proceedings (often called a “neutral”) get involved to try and settle the matter. It can happen at any time during a personal injury matter: before a personal injury case is filed, during the discovery phase, or right before trial. Mediation usually takes place in a conference room, and not a courtroom, as it is not an adversarial proceeding, but an attempt at settlement and compromise. Most mediators or neutrals in personal injury cases are retired judges or lawyers with extensive experience handling personal injury matters. A mediator does not decide a case. Rather, s/he hears the positions of the parties and then works to help both sides reach an agreeable settlement. The mediator cannot require any party to settle, and is not there to decide who is right and who is wrong. Here is how the process works: Typically, at the outset of a mediation, each side makes an initial presentation, and sets out an opening settlement position (either a demand or offer). Following the initial presentations, the mediator shuttles back and forth between the parties, presenting positions conveyed to her or him by the other side, asking for responses. More importantly, an experienced mediator will also inject ideas for how the case may be settled, and the mediator will highlight for each party the weaknesses in their case, as well as the strengths, so that the parties themselves can appreciate the realistic chances for success if the injury matter progresses all the way to a trial. Sometimes mediations are successful, and the case settles and progresses no further. Other times a mediation fails to result in a settlement but can lead to ongoing negotiations to try and settle the case before the case is determined by a jury. And, of course, sometimes the parties simply cannot settle the dispute and a trial results. An experienced personal injury attorney can properly advise you as to if and when you, as the injured victim, should consider agreeing to a mediation proposed by the defendant (and more typically its insurance company) or if you should propose a mediation yourself. Mediations can be very effective in injury cases in which pre-trial settlement is in both parties’ interests, but for whatever reason, they have been unable to reach a settlement on their own. Whether you chose to pursue mediation as a way to settle your injury case or not, having a lawyer on your side who is familiar with the process and can give you an accurate estimation of your chances for success, is an invaluable resource in getting you the compensation you deserve.
Personal Injury Litigation – What Are Affirmative Defenses?
“Yeah, but it was his fault too!” That sums up in a nutshell what an affirmative defense is in a personal injury lawsuit. In the example of a car accident case, a plaintiff may be injured when the responsible driver runs a red light and a car crash takes place. The injured plaintiff files a lawsuit against the driver alleging that the driver was distracted and texting while driving, and that as a result, the other driver ran a red light. The defendant then responds with, amongst other things, that even if that is true, the injured victim was speeding, and that was at least part, if not all of the cause of the incident. Affirmative defenses are the proverbial “yeah but” defense. No different than a young child uses every day (“yeah, but she hit me first”). In a legal context, dealing with affirmative defenses at the pleading stage (when the parties are exchanging formal documents laying out the claims), discovery stage, and at trial, are vital to a successful recovery for an injured victim. If such affirmative defenses are not properly denied, they are often deemed to be admitted, which impacts any recovery a crash victim, or any victim in a personal injury lawsuit is entitled to. Even if the affirmative defense seems outlandish, it still must be appropriately addressed. Things like affirmative defenses are why it is important for any victim of a personal injury to contact an experienced personal injury attorney as soon as possible after an incident. An experienced lawyer can guide you through the process to deal with affirmative defenses, or better yet, help you properly conduct yourself to avoid giving the responsible party the ammunition it needs to bring a frivolous affirmative defense. Involving an experienced attorney is one of the best things you can do to maximize your chance for a full recovery of what you are entitled to for your injuries.
Another School Bus Tragedy
Sadly, earlier this month there was another fatal accident involving a school bus here in Illinois. While the official cause of the incident that left one person dead and dozens injured is still not known, the accident in Lake County highlights the need for better safety and institutional controls when it comes to school buses in Illinois. Our firm has been involved in multiple school bus cases over recent years, handling cases on behalf of victims including a case of assault by a bus driver and a fatal crash where a school bus struck a fire truck on the way to call. School buses need to be as safe as possible, not only to protect the children they transport, but also others on the road, as, let’s face it, school buses are large vehicles that can do a lot of damage, and cause serious personal injuries when they are involved in collisions. Monitoring the safe operating condition of the buses themselves, making sure the bus drivers are properly qualified, and doing whatever can be done to make sure all school bus drivers are safe operators of the buses should be at the top of anyone’s agenda who has a say in school bus safety. Personal injury lawyers will continue to fight for those injured in school bus accidents, but others need to also do their part to prevent these tragedies from happening in the first place. School bus safety benefits everyone.
It Is Now Even More Important To Be Careful What You Sign
As discussed here previously, reading something you are asked to sign, before you sign it, is vitally important in any context, but especially when it comes to personal injury waivers or releases of liability. Americans are routinely bombarded with advanced waivers they are expected to sign before they are allowed to do things like: play sports, work out, join a club, and the list goes on. What many people fail to realize is that by blindly signing these documents people often waive the right to recover for injuries that are not their fault; injuries they probably never even imagined. Last month an Illinois Appeals Court upheld the dismissal of a suit against a health club in Chicago where a gym member was injured in 2009 — injuries so severe the victim was rendered a quadriplegic. The reason the case was dismissed was simple: when the victim joined the gym he signed a document that exempted the club from liability for injuries, including injuries caused by the club’s own negligence. Even the appeals court acknowledged “…that upholding the health club’s exculpatory clause in this instance leads to a harsh result.” Obviously the victim never expected he would be injured while working out, especially to the tragic extent that he was. But, that is why it is so important to think about what you sign before you sign it. When you get in a car you put on your seat belt before you drive anywhere to prevent injury. It is not as if you got in the car saying, “today I am going to get in an accident.” You need to plan before you act, and take into account what could happen, not just what you hope will (or will not) happen. The language of releases and waivers of liability in personal injury cases vary widely and can result in some waivers or releases being unenforceable. If you are ever injured in a situation where it is not your fault, even if there is some type of waiver or release involved, you should contact a knowledgable personal injury lawyer as soon as possible. An injury lawyer can advise you of your rights and the consequences of any documents you may have signed.
Personal Injury Litigation – What Is A Complaint?
Any type of lawsuit, whether it be personal injury, breach of contract, or otherwise, is initiated by the filing of a complaint. The complaint lays out the basic facts of who the parties to the suit are, what the case is about, and what the plaintiff (in a personal injury case that is the victim who suffered the injury) is claiming the other party did wrong that caused an injury. The complaint gets filed by the plaintiff with the court clerk, and the case is then assigned to a judge so the lawsuit can proceed. In general, complaints need to conform with one of two standards, “notice pleading” or “fact pleading.” Which applies depends on where the case is filed. A complaint in a personal injury lawsuit in Illinois courts is subject to fact pleading, meaning the complaint must layout facts, not mere generalizations about the basis of the claim, including details. For example, in a personal injury case for a car accident, things like the name of the responsible driver, where the accident occurred, and specifically what the plaintiff feels the defendant did wrong that was negligent, must be alleged. These are just a few basic facts about the complaint that initiates a personal injury case in Illinois. There are many more intricate details that need to be addressed before a complaint will be found to be proper and an injury case allowed to proceed. That is why a qualified personal injury attorney is an injured victim’s best advocate when a matter needs to proceed into litigation in order for the injured party to have the best chance to be compensated fully for his or her injuries.
Personal Injury Litigation – What Is A Deposition?
In civil litigation, the most powerful tool an experienced attorney has for uncovering the truth of what happened is discovery. Discovery is the term to describe when the parties to a lawsuit not only exchange information amongst themselves, but also are allowed to investigate further and ask questions, get documents, and otherwise work to piece together just what took place. One of the most important steps in that search is the deposition. Despite how TV and movies portray it, a deposition is a rather informal event where a person (the “deponent”) is asked a series of questions under oath. Depositions can take place just about anywhere: lawyer’s offices, the courthouse, or even a deponent’s home (which happens often when the deponent is the injured victim in a personal injury case). A court reporter administers an oath where the deponent swears to tell the truth, and then all parties to the case, usually through their attorneys, can ask questions about almost anything relevant to the case. In Illinois, a deposition is limited to three hours, but can be extended in complicated cases, or under certain circumstances. Other jurisdictions, including federal courts, have different time limits. Now, a deposition is not an interrogation along the lines of what makes for good entertainment. It is usually very cordial (although any personal injury attorney with some experience will have a few good “war stories” about the goings-on of a memorable deposition). After all the questions are asked, the court reporter usually prepares a transcript, and the testimony is preserved. This can be used to not only inform all the parties of what the deponent knows, but also used to “impeach” the witness at trial, if the case goes that far, and the person testifies. To impeach someone is simply to show that they have changed their story. A deposition is just one of many tools an experienced personal injury attorney, or any litigation attorney, will use in pursuing a case on behalf of a client. While a deposition may sound simple, it is a subtle art to get the deponent to say what is most important to support a case. In injury cases this could be anything from, “what color was the traffic light” to “was it a breach of the standard of care for Dr. Smith to do X?” That is why, if you or someone you care about is injured and it is not their fault, employing the services of a qualified, experienced personal injury attorney is one of the most important steps to take to make sure that full compensation is available.
Why You Need A Good Personal Injury Lawyer
Many people do not realize when they are hurt, even in a minor accident, that a good personal injury attorney is an invaluable resource. Some people try to just “handle it on their own,” thinking if something is small in their mind, it is not worth bringing in a personal injury attorney. But, if you have never been in an accident before, how do you know what you are doing? How do you know what your case is worth? Are you really in a position to determine that your case is “small?” That is what a qualified personal injury lawyer is there to help with. Valuing a claim requires extensive experience in personal injury law, and county by county experience is also important, as the exact same case can be worth several times more in one county of Illinois versus another. When an insurance company offers you money for your claim, if you just say, “that sounds fair,” how do you know that? You need someone who can help you not only determine the fair value for your injury, whether it be from a car accident, nursing home mistake, slip and fall, construction site injury, or anything else, but also how to maximize any recovery. Medical liens have also become a major issue to be dealt with in personal injury cases. Most people do not realize that even if your health insurance company pays for your medical treatment after an accident, you may be obligated to pay any money your receive for your injuries back to your insurance company. A good personal injury lawyer can not only help navigate that, but use the law to get the amount you need to reimburse your insurance company reduced — putting more money in your pocket. Injured victims are simply not equipped to deal with sophisticated lienholders looking to get paid. When you are in an accident, with respect to financial issues, the hospitals, doctors, insurance companies, etc. are NOT on your side and are NOT looking out for you. When you retain a personal injury attorney, that person is required to be loyal to you and look out specifically for your best interest, no one else’s. That is why consulting a lawyer after any type of injury caused by an accident is the most important thing you can do to put you in the best position for a financial recovery as well as a medical one.
So Now Winter Really Is Coming!
A few months back this blog gave you some important information on winter weather and how it relates to personal injury lawsuits. Well, winter has not made much of an impression on Chicagoland this year…until now. With the biggest storm of the season set to hit Illinois tonight, things like the “natural accumulation rule” and winter driving safety come to mind for any personal injury lawyer in Chicago or the surrounding areas. What is the natural accumulation rule? Again, as the Illinois Supreme Court put it in the 2010 case of Krywin v. Chicago Transit Authority: “Under the natural accumulation rule, a landowner or possessor of real property has no duty to remove natural accumulations of ice, snow, or water from its property.” What that means is that if it fell from the sky, and the landowner, operator, or landlord did not do anything to it (did not shovel, salt, plow) if a person falls on it, the landowner, landlord, or operator is not responsible. This rule does not mean that a situation where a person slips and falls on snow or ice means there is no case. The natural accumulation rule demonstrates that when a landowner, landlord, or property operator did do something to try and remove snow or ice but did it incorrectly, a personal injury lawsuit may exist. Negligent snow removal, melting and refreezing of plowed piles of snow, potholes, and broken pavement, dripping gutters that cause ice on sidewalks, and so on can all be the basis of a slip and fall lawsuit for a winter fall (which can often cause massive injuries). Be careful out there. But, if the unfortunate or unthinkable happens to you as the snow and ice falls, remember, only an experienced personal injury attorney can advise you as to if you have a case for a slip and fall, car accident, or any other injury-related to snow and ice accumulation. Our firm has handled numerous slip and fall cases, including ones related to snow or ice-covered surfaces at malls, businesses, and in residential areas. The same is true of car accident cases caused by winter conditions (of which there will probably be many over the next day or two). Do not take the word of a friend, or believe what you see in the media. If you have been injured, you should contact a qualified personal injury lawyer to discuss what your options are, and if you have a case.
Sunland Salmonella Outbreak Update
The U.S. Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC) and state and local health officials investigated an outbreak of Salmonella Bredeney infections linked to Trader Joe’s Valencia Creamy Salted Peanut Butter, with SKU # 97111, made by Sunland Inc. of Portales, New Mexico. On November 30, 2012, the CDC issued a final update reporting that this outbreak appeared to be over after a total of 42 people from 20 states (including Illinois) were infected. Other affected states include Arizona, California, Connecticut, Louisiana, Massachusetts, West Virginia, Maryland, Michigan, Minnesota, Missouri, New Jersey, New Mexico, New York, Nevada, North Carolina, Pennsylvania, Rhode Island, Texas, and Virginia. Most people injured by the contaminated food were infected with Salmonella and developed diarrhea, fever, and abdominal cramps 12 to 72 hours after infection. The illness usually lasts from four days to a week. In some people, the diarrhea may be so severe that the patient needs to be hospitalized. In these patients, the Salmonella infection may spread from the intestines to the bloodstream, and then to other body sites and can cause death unless the person is treated promptly with antibiotics. Young children, the elderly, and those with compromised immune systems are the most likely to have severe infections. It is estimated that Approx. 400 persons die every year with acute salmonellosis. The FDA found that between June 2009 and August 2012, Sunland Inc. had distributed, or cleared for distribution, peanut, and almond butter after testing identified the presence of at least one of nine different Salmonella types in those lots. Two of these lots showed the presence of the outbreak strain of Salmonella Bredeney. Further, during the inspection of the processing plant in 2012, the FDA found the presence of Salmonella in numerous environmental samples, including Salmonella Bredney. Investigators found that employees improperly handled equipment used to hold and store food. There were no handwashing sinks in the peanut processing building production or packaging areas and employees had bare-handed contact with ready-to-package peanuts. This is in addition to numerous other problems with the handling and storage of equipment, and products, both raw and cooked. On November 26, 2012, the FDA suspended the “food facility” registration of Sunland, Inc. which is required for a facility that manufactures, processes, or holds food in the United States. This was the FDA’s first use of its suspension authority under the Food Safety Modernization Act. On December 21, 2012, U.S. District Judge William P. Johnson signed a consent decree imposing requirements on Sunland Inc.to keep potentially harmful products from entering the market. Based on the requirements of the decree, the FDA reinstated Sunland’s food facility registration. However, the company cannot process or distribute food from its peanut butter plant or peanut mill plant until it has complied with the consent decree’s requirements to the FDA’s satisfaction. The consent decree requires actions including that Sunland retain an independent sanitation expert to develop a sanitation control program that the company must then implement, and, the company must conduct environmental monitoring and testing to ensure that disease-causing organisms are not present in its facility or in its food products. Hopefully, all these steps will go a long way toward preventing any future injuries due to food poisoning or other foodborne illnesses. More information on the situation can be found by clicking here.