October 22, 2017

Wage Loss

When a plaintiff claims wage or income loss in a personal injury action such as a car wreck, the defendant will seek to discover plaintiff’s employment records and business records, if self employed, in good faith in order to substantiate plaintiff’s wage or income losses, which is necessary to the ascertaining of plaintiff’s damages.

The plaintiff may object to discovery because of privacy. Anything produced in discovery becomes public. The plaintiff may not want the world to know how much money he makes, his assets, his performance reviews. If the defendant reasonably believes that an entity has the records or information from the records, the defendant can make a motion to discover records from the entity despite plaintiff’s objections.

According to the evidence code, a party seeking the discovery or disclosure may file a written motion with the appropriate court upon written notice to the entity which has custody and control of the records. In a motion, the parties in the case are notified of a court hearing to argue whether or not the motion should be granted. A party opposing the motion may provide an opposition giving case law and facts why the motion should not be granted. This provides due process, though may create delay in the resolution of an injury victim’s lawsuit.

Usually a plaintiff claims wage losses as a result of not being able to work because of his injuries from an injury incident. For example, a bartender injured in a car accident may not be able to work because he is not able to stand for long hours because of back pain from the car wreck. Plaintiff will make an injury demand based on how many days he was off work, and the lost earnings.

To substantiate plaintiff’s wage losses, defendant will seek to discover any and all employment records including, but not limited to employment applications, employment contracts, performance reviews or evaluations, reprimands, commendations, employment histories, resumes, wage and/or payroll records, promotion or demotion documentation, and/or any other documents whatsoever related in any respect to the employment of the plaintiff at anytime up to and including the present. If the plaintiff is self-employed, the defendant will seek to discover tax returns, appraisal of business, customers turned away, days business closed, business lines, and financial statements.

The wage loss and business records are material to the resolution of the lawsuit.

To get through a wage loss claim with poise, engage an experienced Chicago personal injury attorney.

Respondeat Superior

Respondeat superior is when an employee is responsible for an employee’s torts. For an employer to be responsible for an employee’s tort, the employee needs to cause the personal injury while working. When this happens, the personal injury plaintiff can sue the employer, who is likely to have more ability to pay damages than the employee.

If a plaintiff sues an employer to get a deep pockets the defendant may file a motion for summary judgment to dismiss the case if the defendant is not liable. An employee’s scope of employment depends on whether the risk involved was typical or incidental to the enterprise undertaken by the employer. When the employee’s conduct substantially deviates from his duties, it is unjust to hold the employer liable. If the main purpose of the damage-producing act was not in pursuit of the employee’s personal ends, the employer is not liable.

For example, at the time of a vehicle accident, the employee is driving his own ’77 Ford Thunderbird, on his way to visit his girlfriend. The employee is not under the direction of defendant to visit his girlfriend. Visiting his girlfriend is a purely personal activity, and does not further defendant’s interests.

Where, an agent, for however brief a period, has ceased to serve his principal, the agent alone is responsible for his acts during the period of such cessation. For example, it would be unjust to hold defendant liable for plaintiff’s injuries if the employee does not act within his scope of employment, and defendant does not benefit from his visit to a girlfriend.

Generally, if it is an implied or express condition of employment that an employee uses his or her vehicle in attending duties, then the employer is liable for any accident incurred while the employee is driving to and from work. If a defendant does not entrust an employee with a motor vehicle, and an employee is not driving an employer vehicle at the time of an injury-producing incident, the employer is less likely liable for the employee’s accident. If the employee is driving his personal vehicle, and the vehicle financed by the employee, and the employee’s duties do not necessitate a car, the employee is not considered to be acting in course and scope of his employment while he drives his car.

An employer is not liable for an employee’s act, if the act was not connected in any way with the services for which the employee was employed.

Vicarious Liability

An employer will be vicariously liable for tortuous acts committed by its employee if the acts occur within the scope of employment. To be within the scope of employment, the conduct need not be actually authorized. A payer is not liable for the acts of independent contractors unless a tort involves a non-delegable duty, such as the duty of care owed to an invitee. An individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done.

For example, plaintiffs allege that defendant is vicariously liable for one of its employee’s tortious conduct under the theory of respondeat superior. Plaintiffs specifically allege that: (1) the employee acted within the scope of his agency with defendant at the time of a car accident, (2) the employee operated a motor vehicle in the course of his employment, (3) Defendant entrusted the employee with a motor vehicle. Yet, if plaintiffs have not presented any material facts to prove their allegations and that the tort occurred in the course of a business transaction, the employer would not owe plaintiffs a duty. If the employee did not commit the auto accident in the course and scope of his employment, the defendant would not be liable to plaintiffs.

A principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agents in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal. An employer, in the role of principal, is vicariously liable for the torts committed by its agent, the employee, within the scope of employment.

The theory of vicarious liability exists because it is unjust to exonerate a business from responsibility for injuries occurring in the course of its activities. The relationship of “employer and employee” exists whenever the employer retains a right to exercise direct and complete control over how work shall be done, and how the result is to be accomplished.

For example, if once a worker finished work, it is understood that the employees would no longer be under the control or authority of defendant, and that their time after work would be their own, an accident occurring at this time would not be the liability of the employer.

Reasonable Care In Personal Injury

An action in negligence requires a showing that a defendant owed a plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of the injuries the plaintiff suffered. The fact that a dangerous condition on premises exists at the time an accident occurs, does not warrant an inference that the owner or his employee acting within the scope of employment was negligent. Where the condition complained of is brought about by ordinary usage or by third persons, there must be evidence to establish that the condition existed long enough for the owner or his employee, in the exercise of reasonable care, to discover the condition and correct it.

For example, defendant acts as an agent when it inspects and services time share units. Defendant does not have actual or constructive notice of any defects in a shower door prior to a personal injury incident involving plaintiff. In fact, the shower door worked properly on numerous occasions prior to plaintiff’s stay. A family who occupies the unit before plaintiff, took many showers without any problems with the shower door. There were no complaints from the maid who cleaned the unit before the plaintiff’s occupancy or occupants prior to plaintiff’s stay. Defendant reasonably maintained the property by making daily property walks and inspections, responding promptly to repair requests, and enacting a procedure for recording maintenance reports. Because there is no liability for injury from dangers where an owner or his employee lacks notice, defendant does not breach its duty of reasonable care in its operation of the property, and its maintenance of the property such that it would not be in a reasonably safe condition.

If defendant is found liable for a plaintiff’s alleged damages, it may deny the extent of alleged injuries. The defendant disputes the plaintiff’s damages by reviewing medical expenses, employment records, and restricted activities from injuries.

With respect to physical injuries, the defendant may demand the plaintiff go through an independent medical examination. For example, someone may complain of leg pain and weakness, but an independent medical examination may reveal that the plaintiff demonstrates a normal gait, without a limp. The injury damages may not be much if the person is able to walk on heels and toes. As to back injuries, an independent medical examination may indicate that the plaintiff shows back pain, however, when standing, the pelvis is normal and the spine is straight. The rotation and hip range motion may be normal, and lateral bending is normal.

The defendant may look into past medical records, and a plaintiff’s deposition testimony, to reveal that plaintiff was disabled from work or other activities previously. All this decreases the damages amount.

Strict Product Defect

A landlord engaged in the business of leasing dwellings is strictly liable in tort for injuries resulting from a latent defect in the premises when the defect existed at the time the premises were let to the tenant. A personal injury plaintiff may seek to recover damages based upon strict product defect claims.

A landlord is defined as: “He of whom lands or tenements are holden. The owner of an estate in land, or rental property, who has leased it to another person, called the “tenant.” Also called “lessor.” Black’s Law Dictionary (6th Edition).

A defendant cannot be held liable for defective or dangerous conditions of property which it does not own, possess, or control. For example, to establish strict liability, a plaintiff would need to show that defendant owned, possessed, and controlled the premises where the alleged injuries occurred. If defendant had no possession, ownership, or control over the premises where the incident occurred, the defendant would not be liable. This may occur when the premises where the incident occurred were owned by a developer who sold off pieces of ownership based upon time of use. Suppose there were at least 4000 individuals who purchased the pieces of ownership. Pieces of ownership which were not purchased or leased, reverted automatically back to the developer. Then, defendant had no ownership interest whatsoever of the property where the incident occurred. Defendant merely managed the property and assisted in the sale of time shares as an agent for the developer, the true owner. Defendant also acted as an agent for the developer when it leased the units, maintained the premises, and undertook the day-to-day operations. Suppose plaintiff leased one of the rooms. When defendant leased a room to plaintiff, defendant acted under the direction of the developer. Plaintiff had rented a time share from the developer. The room was an unsold time share at the time of the incident. The time share for the room was owned by the developer, not a specific person or defendant. Because defendant was not the owner of the property, plaintiff cannot recover damages based on strict products liability from defendant.

The doctrine of strict liability in tort applies to producing and marketing enterprises responsible for placing products in the stream of commerce. A product is a physical article which results from a manufacturing process. A defect in an article, even if latent, is objectively measurable. A service is no more than direct human action or human performance. Whether that performance is defective is judged by what is reasonable under the circumstances, and depends upon the actor’s skill, judgment, training, knowledge, and experience. Courts have not extended the doctrine of strict liability to transactions whose primary objective is obtaining services. Courts have also declined to apply strict liability where the transaction’s service aspect predominates and any product sale is merely incidental to the providing of the service.

For example, defendant acts as an agent of a developer who was the true owner of the property where a personal injury incident occurred. Defendant leased, maintained, and operated the property for the benefit of the developer. Defendant’s acts constitute a service, not in the business of selling a product. A plaintiff cannot recover damages based on strict product defect claims from defendant.

Workers’ Compensation Exclusive Remedy

A personal injury plaintiff alleges that: defendant negligently trained, supervised, controlled, managed, and hired employees, so as to allow them to negligently and recklessly operate a forklift in such a manner as to strike plaintiff, causing him injuries. Plaintiff has to present material facts to prove that he has a right to tort damages, and that defendant is civilly liable for his alleged injuries.

A plaintiff cannot pursue a tort action against a defendant if they have an employer-employee relationship. Whether a claimant may pursue a tort action, or is confined to workers’ compensation proceedings depends on whether the acts complained of were normally within an employer-employee relationship.

An employee is: every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed.

In determining whether an employment relationship exists: any person rendering service for another, other than as an independent contractor is presumed to be an employee. The most important element in an employer-employee relationship is the alleged employer’s control over the alleged employee with respect to the means and manner in which he is performing the job.

For example, an employer-employee relationship existed between plaintiff and defendant if plaintiff provided services to defendant as a laborer. Defendant had exercised its right to direct and control the mode and manner plaintiff did his work. When defendant did not like the way plaintiff completed a task, defendant’s supervisors would instruct plaintiff as to the correct procedure. When Plaintiff finished an assignment, defendant’s supervisors would direct plaintiff to his next assignment.

When an employer-employee relationship exists between plaintiff and defendant, plaintiff may not pursue a tort action against defendant, and is confined to workers’ compensation for his alleged injuries. Because plaintiff’s injuries are compensatable under worker’s compensation, his right to recover benefits provided by workers’ compensation is the exclusive remedy against defendant.

Liability for workers’ compensation shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of employment. This means that an employer, whether it is negligent or not, has to pay for any injuries that its employees sustain in the course of their duties.

The right to recover workers’ compensation is the sole and exclusive remedy of the employee. This means that an insured employer is not liable for its employees’ industrial injuries under general tort principles. An injured employee’s only remedy is a claim for workers’ compensation.

Personal Injury Medical Reports

There are several ways for a party in a personal injury case to obtain medical reports from the opposing party: (1) Stipulation; (2) Discretionary court order.

Generally, there are cut-offs on discovery, with deadlines before the initial trial date; and discovery motions must be heard before the initial trial date. In a demand for medical reports, the demand must be served so that the responses are due before the first trial date.

A continuance or postponement of the trial date does not operate to reopen discovery proceedings. An exception may be given when the parties stipulate to extend the time for completion of discovery proceedings or for hearing discovery motions; or to reopen discovery after a new trial date for the action has been set. This agreement may be informal, but all parties must consent to it in order for it to be effective. The agreement must be confirmed in a writing that specifies the extended date. The stipulation does not require the court to postpone or continue the trial date.

If the opposing party has objected to the discovery, the stipulation exception would not be helpful, unless the opposing party gets convinced to stipulate to an extension.

Another way to extend the discovery deadline may be to make a motion to the court. On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, after the cut-off dates; or, it may reopen discovery after a new trial date has been set. The required motion may need to be a noticed motion, rather than an ex parte application. Ex parte means that one person shows up in court to ask the judge to decide on something. In a noticed motion, the motion may need to be accompanied by a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.

In exercising its discretion to grant or deny the motion, the court considers any matter relevant to the leave requested, including the following factors: (1) The necessity and the reasons for the discovery; (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) Whether permitting the discovery or granting the discovery motion will likely prevent the case from going to trial on the date set, interfere with the trial calendar, or prejudice any party; (4) The length of time elapsed between any date previously set and the date presently set for trial.

Discovery of the medical reports seems to fall within the factors listed above, or other reasonable and good faith reasons. It may be possible for a party in a personal injury case to file a motion compelling the opposing party to produce the reports up to and through trial.

However, before filing a motion, a party should check on whether the court imposes a monetary sanction for abuse of discovery against the losing party on the motion. If the court finds that the party acted with substantial justification or that other circumstances make the imposition of the sanction unjust, a sanction may not be imposed.

Standard of Review for Nonsuit

In a personal injury case, a motion for nonsuit, the defendant is asking the court to settle all issues presented in the plaintiff’s complaint. After the plaintiff has completed his or her opening statement, or the presentation of his or her evidence in a trial by jury, the defendant, without waiving right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit.

A motion for nonsuit is the modern equivalent of a demurrer to the evidence; it concedes the truth of the facts proved, but denies that they, as a matter of law, sustain the plaintiff’s case. A motion for nonsuit attacks the sufficiency of the evidence, not the pleading.

A motion for nonsuit may properly be granted where, disregarding conflicting evidence on behalf of defendant and giving to plaintiff’s evidence all the value to which it is legally entitled, therein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantaility to support a verdict in favor of plaintiff.

For example, plaintiff alleges that: defendant is vicariously liable for one of its employee’s tortious conduct under the theory of respondeat superior. Plaintiff specifically alleges that: (1) the employee operated a motor vehicle in the course of employment; (2) the employee operated the motor vehicle with defendant’s permission; (3) defendant entrusted the employee with the motor vehicle; (4) the employee and defendant had an agency relationship and the employee acted within the scope of that agency at the time of the incident. Yet, if plaintiff has not presented any evidence to prove the allegations and that the incident occurred in the course of a business transaction, the court would grant the motion for nonsuit. If the employee was not involved in the auto accident in the course and scope of employment, the defendant owes the plaintiff no duty. An employer is liable for acts of employees only when they are in the course of employment. This theory of respondeat superior exists because it is unjust to exonerate a business from responsibility for injuries occurring in the course of its activities. The relationship of “employer and employee” exists whenever the employer retains a right to exercise direct and complete control over how work shall be done, and how the result is to be accomplished.

When a plaintiff fails to present evidence of sufficient substantiality to support a verdict in his/her favor, the court should grant defendant’s motion for nonsuit.

Motion for Summary Judgment

In a personal injury, defendants often defend with a motion for summary judgment. What is a motion for summary judgment?

The motion for summary judgment usually comes after discovery completion. In a motion for summary judgment, the defendant is asking the court to settle all issues presented in the plaintiff’s complaint, rather than have the case go to trial for a jury to decide the facts. If the defendant wins the motion for summary judgment, the plaintiff gets nothing.

The purpose of summary judgments is to expedite litigation by avoiding needless trials. The motion is to establish whether or not a lawsuit contains triable issues of fact; if it does not, summary judgment should be awarded. The jury exists to decide on the facts. If there are no disputes in facts, the case can be decided by the court. Summary judgment is proper to eliminate sham and baseless claims and pleadings.

For example, a plaintiff alleges that: Defendant participated in negligently managing, maintaining, supervising, overseeing, controlling, and contructing the premises in which the incident occurred. The negligent actions include: (1) An improperly installed and anchored safety rail situated on the staircase in which the incident occurred; (2) A leaving of boards and plankings adjacent to the stairway in which the incident occurred. If plaintiff has not presented any material facts to prove that defendant participated in the negligent actions and thus, owed plaintiff a legal duty, the court should grant the defendant’s motion for summary judgment.

An action in negligence requires that a defendant owed a plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of the injuries plaintiff suffered. For example, plaintiff alleges defendant contributed to his injuries by leaving boards and plankings adjacent to the stairwell in which the incident which is the subject of this litigation occurred. Yet, defendant does not have any records of being at the premises, where plaintiff allegedly sustained his injuries. Then, defendant is an incorrect party to this litigation, and did not participate in the negligence actions that plaintiff alleges. Because defendant is an incorrect party, and was not involved in the negligence actions that is the subject of the litigation, defendant does not owe plaintiff a legal duty for the injuries he alleges. No triable issues of material facts exist with respect to plaintiff’s personal injury action. The court would grant defendant’s motion for summary judgment.

If a plaintiff loses in a motion for summary judgment, the next step is to appeal the case.

“Unexplained” Slip and Falls at the Workplace

For the “clumsy” person, occasional bumps, slips, and falls, are a way of life. People can lose their footing for no apparent reason, and through no fault of anything or anyone. But what happens to the clumsy worker who, say, slips and falls at work and suffers more than just a scrape, cut, or bruised ego? Can that worker seek compensation for his mysterious injuries by filing a Workers’ Compensation claim?

The Illinois Appellate Court (4th District) recently addressed this question. Although the question had been asked before, the answer wasn’t very clear. In this case, the claimant (a security guard) was (in the course of her work duties) patrolling her employer’s property, a job which required her to descend a metal staircase. In doing so, she slipped and fell, landing on her left side. Although she could venture some guesses as to the reason she fell- she had recently walked through a freezer, for example- she could not provide any meaningful explanation for her fall, such as a defect in the stairway or a puddle of liquid.

An arbitrator denied her claim for Workers’ Compensation for this very reason. The Illinois Workers’ Compensation Commission also denied her claim, a decision which was upheld by the appellate court. The court explained that a claimant bears the burden of proving that her injury arose “in the course of the employment.” For an injury caused by an unexplained fall to arise out of the employment, a claimant must present evidence which supports a reasonable inference that the fall stemmed from a risk related to the employment. If the injury comes about because of a condition to which the general public is equally exposed, the injury does not arise out of employment and the Workers’ Compensation claim will be denied.

Of course, because the claimant/employee in this case couldn’t testify to any explanation for her fall, the Court could not find that the reason for her fall was due to a risk related to her employment. Given the claimant’s testimony, or lack thereof, it would seem instead that her injuries were caused by one of those ubiquitous unexplained falls, that can happen to anyone at anytime, regardless of their place of employment.