December 12, 2018

Imminent Peril

An action in negligence requires a showing that a defendant owed a personal injury 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.

The Restatement of Torts defines “negligence” as conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. Restatement, Second, Torts §282.

Generally, every person has a right to presume that every other person will perform his duty and obey the law. In the absence of reasonable ground to think otherwise, it is not negligence to assume that one is not exposed to danger which comes to him only from violation of the law or duty by another person.

In determining whether conduct is negligent towards another, the fact that the actor is confronted with a sudden emergency, which requires rapid decision, is a factor in determining the reasonable character of his choice of action. Restatement, Second, Torts, §296(1).

Under the doctrine of imminent peril, also known as the emergency doctrine, a person who, without negligence on his part, is suddenly and unexpectedly confronted with peril, is not expected nor required to exercise the same ordinary care as in more deliberate moments.

The basis of the doctrine of imminent peril is that the actor is left no time for thought, or is so disturbed or excited, that he cannot weigh alternative courses of action, and must make a quick decision, based on impulse or conjecture. Under emergency conditions, the actor cannot reasonably be held to the same conduct as one who has had full opportunity to reflect, even though in hindsight, it appears that he made a decision no reasonable person could have made after due deliberation.

The judgment and prudence that the actor is held to is the course of action that a standard man in that emergency might have taken. Such a course of action is not negligent even though it led to an injury which might have been prevented by adopting an alternative course of action.

For example, a defendant was driving on the freeway in a non-negligent manner when, without notice, a wheel suddenly came off the left side of a trailer in front of him. The tire went straight towards defendant’s vehicle, and bounced windshield high. Because defendant assumed that the position of his vehicle was safe and free from peril while he was driving, the presence of the tire disturbed and excited him. In an attempt to avoid hitting the tire, defendant swerved to the fast lane, without time for reflection and weighing of alternative courses of action. It was then that defendant’s vehicle came into contact with plaintiff’s vehicle. After defendant disengaged his vehicle from plaintiff’s vehicle, the tire chased him from lane to lane until he got off the road. Negligence may not be predicated on defendant because he exercised the judgment and prudence required of one unexpectedly confronted with imminent peril. He cannot be held to the same conduct as one who has had full opportunity to deliberate. It is reasonable for a person, driving on the freeway, suddenly faced with a bouncing tire, to make a quick decision, based on impulse or conjecture, to swerve out of its way. Defendant’s confrontation with peril arose from either the actual presence or the appearance, of imminent danger to himself or others.

Under the emergency doctrine, one confronted with peril that arises from either the actual presence, or the appearance of imminent danger to himself or to others, is not expected nor required to use the same judgment that is required in calmer situations. The mere appearance of, not an actaul, imminent peril, is enough to invoke the doctrine of imminent peril.

Spoilation of Evidence

In a personal injury case, if the defendant destroys evidence, there are two types of claims: (1) Intentional spoilation of evidence, and (2) Negligent spoilation of evidence.

For the plaintiff to establish a cause of action for negligent spoilation of evidence, s/he has to show that s/he reasonably relied on the party to preserve potential evidence. The plaintiff had to establish a duty by the defendants to preserve evidence. For example, if police officers voluntarily assumed responsibility to protect the plaintiff’s prospects for recovery by civil litigation, or their conduct prevented the plaintiff from conducting the plaintiff’s own investigation. Another example, a chair manufacturer, could have a cause of action against a hospital for losing or throwing away a chair if the manufacturer established that the hospital had a duty to maintain or secure the chair.

In determining whether a duty exists, the most important consideration is foreseeability of harm to the plaintiff. Foreseeability is measured by whatever a reasonably thoughtful person would likely take account of in his conduct in the setting of modern life. For example, a janitor throws away an unmarked bag containing a broken bottle, which was placed on top of an attorney’s desk. The bottle was valuable evidence in a product liability action. The janitor may not owe the plaintiff a duty to preserve the evidence. Rather, it was the attorney who was negligent in not maintaining the evidence. The janitor acted reasonably when he removed the bottle, as he would other trash. If the bottle was labeled, and not left lying about, a reasonable janitor would not have destroyed the evidence, which he was normally entitled to assume was garbage.

Other factors in determining duty include: (1) the extent to which the transaction was intended to affect the plaintiff; (2) the degree of certainty that the plaintiff suffered injury; (3) the closeness of the connection between the defendant’s conduct and the injury suffered; (4) the moral blame attached to the defendant’s conduct; and (5) the policy of preventing future harm.

Where spoilation of evidence enables the spoilator to profit from his own wrong, a duty to preserve evidence arises solely from foreseeability of the harm to the plaintiff. Undertaking to preserve evidence is not a prerequisite to liability for intentional spoilation of evidence. Intentional spoilation of evidence occurs when a defendant destroyed or lost evidence s/he knew was essential proof in a civil action. For example, the plaintiff is involved in an auto accident. The defendant agrees with the plaintiff’s attorney to maintain certain automotive parts (physical evidence), pending further investigation. Thereafter, the defendant destroys, loses or transfers the physical evidence, making it impossible for the plaintiff’s experts to pinpoint the cause of the failure of the automotive part.

The elements of intentional spoilation of evidence are analogized to intentional interference with prospective economic advantage. The elements include: (1) pending or probable litigation involving the plaintiff; (2) knowledge by the defendant of the existence or likelihood of the litigation; (3) intentional acts of spoilation, on the part of the defendant, designed to disrupt the plaintiff’s case; (4) disruption of the plaintiff’s case; and (5) damages proximately caused by the acts of defendant.

Metra Train Worker Suffers Head Injury

Metra train case award for the plaintiff in Harry Balough v. Northeast Illinois Regional Commuter Railroad Corporation, etc. The plaintiff was in the rail yard preparing a train car for the evening rush hour when a trapdoor fell on his head.  He was diagnosed with ocular migraines and was not allowed to work as a train engineer.  An ocular migraine causes temporary vision loss or distortion in one eye, accompanied with a headache.  These migraines are caused by the sudden constriction of blood vessels, which causes the blood flow to the eye to be reduced.  Although the migraine lasts five minutes, and vision usually returns to normal, there may be five minutes of blurred or zero vision.

He sued Metra under the Federal Employers Liability Act.  The jury warded a $500,000 (the full amount to the man) in compensatory damages—but no money for pain, suffering or disability, but the jurors reduced the award to $300,000 because they found him to be partially negligent.

Judge Arnette Hubbard found that the jury’s answers to questions showed that the jury thought that Metra also violated U.S. Locomotive Inspection Act (LIA)—which triggers automatic negligence applicable when a train is “in use.”  Because there can’t be contributory negligence when there’s a LIA violation, Judge Hubbard restored the full $500,000 award.

Metra appealed for several reasons, including that the train was not actually “in use” and that the entire verdict should be set aside because the jury issued no damages for suffering, disability and pain.   The Appellate Court affirmed the Circuit Court’s ruling.  The Supreme Court clearly stated a train car is “in use” if it would continue to its next destination after passing inspection. Brady v. Terminal R.R. Ass’n of St. Louis , 303 U.S. 10.

Metra is considering appealing the case to the Illinois Supreme Court. The full case is available at, Harry Balough v. Northeast Illinois Regional Commuter Railroad Corporation, etc., No. 1-09-3053.

 

Collateral Source Rule

According to the collateral source rule, if an injured party receives compensation for injuries from a source independent of the tortfeasor, payment should not be deducted from which the plaintiff would otherwise collect from the tortfeasor.

The policy behind this rule is that a person who has paid insurance premiums to assure his medical care should receive the benefit of his investments. To encourage the purchase of insurance, the tortfeasor should not benefit from the victim’s investments. If the tortfeasor is permitted to mitigate damages with payments from a plaintiff’s insurance, the plaintiff would be in an inferior position to that of one who had not bought any insurance.

There is persuasive case law that the collateral source rule applies to insurance payments made in tort cases and other benefits which a plaintiff has paid for. Insurance is defined as a pooling of resources by individuals to provide a fund to pay losses due to certain risks.

A plaintiff’s attorney may analogize worker’s compensation to insurance payments in that worker’s compensation was deducted from the plaintiff’s paychecks. The plaintiff has paid for worker’s compensation benefits from deductions from paychecks. The paychecks would have been higher if the plaintiff did not have to pay for worker’s compensation. Further, worker’s compensation benefits are an independent source of a tortfeasor in that it is not paid by a party who is liable for the plaintiff’s injuries.

An argument of double recovery by a defendant is rebutted with the policy that the collateral source rule serves partially to compensate for attorneys’ contingent fees. Plaintiffs seldom receive the full compensations computed by juries.

Accident victims should not be naïve when a defendant’s money concerns override humanity. A plaintiff needs to be careful not to let a defendant know too early how much the plaintiff’s own insurance providers paid towards medical expenses and damages. With the information, the defendant might try to bargain down the settlement amount or damages award. Damages recoverable from a wrong are not diminished by the fact that the party injured has been wholly or partly indemnified for a loss by insurance effected by the injured party, and to the procurement of which the wrongdoer did not contribute.

The collateral source rule encourages citizens to purchase and maintain insurance for personal injuries. The tortfeaser should not garner the benefits of his victim’s providence. An injured party’s compensation from a source wholly independent of the defendant should not be deducted from damages otherwise collectible from the defendant.

Are parents liable in teen drunk driving case?

In Janet Bell, Indv., etc., v. Jeffrey Hutsell et al. , No. 110724A, the court determined that a Lake County couple are not legally liable for the alcohol-related death of their son’s friend. The mother of the deceased teen brought a lawsuit against the Lake County parents (“defendants”) claiming that they voluntarily undertook the duty to monitor minors and should have made sure the minors were not drinking.  The complaint alleges that the defendants witnessed underage drinking and they did nothing to stop it.  The teenager died in 2006 of a car crash on his way home from the defendant’s home.  The mother also alleged a violation of two statutes: the Liquor Control Act and the Drug of Alcohol Impaired Minor Responsibility Act.

The defendants filed motions to dismiss because there is no social host liability, therefore no voluntary undertaking. Lake County Circuit Court dismissed the case, and the appellate court affirmed the decisions on the alcohol-related acts, but reversed on the voluntary undertaking counts.  The Illinois Supreme Court aligned with the Circuit Court because it appears they are hesitant to extend voluntary undertaking law, specifically the social-host liability rule.

The court examined Section 323 and 324A of the Restatement (second) of Torts to examine the scope of the duty. The court stated:  “[a]lthough the cited sections of the Restatement of Torts do not address a situation like this, where there is a narrowly disseminated statement of intent to engage in a course of conduct, … comments to Section 323 of the Restatement (Second) of Torts do address circumstances under which a mere promise, without entering upon performance, might qualify as sufficient undertaking within the rule state in that section.”

Further, the court said, “[a]t most, the allegations of plaintiff’s complaint suggest that defendants failed to follow through on an expressed intent to act that might have protected the teenager — who was legally underage for the consumption of alcohol, but an adult for most other purposes — against his own volitional acts.  We conclude the allegations of plaintiff’s complaint are insufficient to state a legal duty and a basis for liability on the part of the defendants under either Section 323 or 324A of the Restatement.”

The court found the defendants had no duty to prohibit his consumption or possession and took no action to do so—it was a classic example of nonfeasance.

 

Should Medical Providers Contribute to Attorneys Fees in a Personal Injury Case?

The Illinois Supreme Court recently decided a case in which the plaintiffs had received medical services at two Illinois hospitals after a car accident. The hospitals filed a lien against the plaintiffs’ possible recovery. Medical providers commonly file liens in this manner when a doctor, hospital, or other medical services provider is not paid for the medical treatment that s/he/it has provided. In accident cases, the medical services provider will file a medical lien on any insurance settlement or award that the injured person may receive as a result of a personal injury case.

In this case, the plaintiffs settled with the defendants but then disputed the hospitals’ liens, arguing that under the “common fund doctrine,” the plaintiffs’ attorneys were entitled to one-third of the amount that the hospitals were attempting to recover. The common fund doctrine is a longstanding rule of common law which allows a court to order an allowance of attorney’s fees to one who, at his own expense wins, a suit which increases or creates a fund in which others share. The rule is based on the idea that the person who has taken the risks and costs of litigation should not pay the expenses alone, while others share in the benefits.

In the case above, the lower court upheld this principle and ordered that the plaintiff’s attorneys were entitled to one-third of the plaintiff’s recovery, including that to which the hospitals were entitled. The appellate court affirmed. Surprisingly, the Supreme Court reversed, reasoning that the hospitals’ claim against the plaintiffs existed, regardless of the plaintiffs’ personal injury litigation, or its outcome. It further explained that, the hospitals were not unjustly enriched by the plaintiffs’ efforts to recover because, “the hospital … had no opportunity to choose their own counsel or to negotiate a settlement on their own terms.”

The result of this litigation is that the common fund doctrine is not applicable to health-care liens, as once thought. In light of this ruling, the existence of any liens should be carefully considered when calculating and evaluating a potential personal injury settlement. In the event of a settlement or judgment on behalf of an injured plaintiff, a medical provider’s lien must be paid in full, without any deduction for attorney’s fees or the costs of the litigation. It is likely that there will be attempts to enact a law which would circumvent the holding of this case by seeking to amend the Health Care Services Lien Act.

 

Property Damages to Trees

It happens every day between neighbors. Oak trees on private property get cut down. The diminution in the value of the property is the loss of the trees. Plaintiff wants to recover the cost of replacing the trees. Such a recovery would cost more money than the property’s value.

Are damages in the form of restoration of the trees reasonable if the cost of replacement would be worth more than what the whole property is worth?

If it is determined that Plaintiff had personal reasons for restoring the property to its original condition, and such restoration could be achieved at a cost that is not unreasonable in relation to the damage inflicted and the value of the land prior to damages, Plaintiff may be awarded restoration costs for the trees cut down.

The measure of damages for tortious injury to property is the amount which will compensate for all the detriment proximately caused thereby. There are two ways to determine such damages. The general measure of damages is the difference between the value of the property before and after the injury. An alternative measure is the cost of restoring the property to its condition prior to the injury.

As to restoration awards, courts will normally not allow costs of restoration if they exceed the diminution in the value of the property prior to the injury. This is because the basic objective of compensatory damages is to make an injured party whole, but no more than that. The Plaintiff may be awarded the lesser of the two amounts.

An exception to the general rule is that restoration costs may be awarded even though they exceed the decrease in market value if the owner has personal reason for restoring the original condition, or there is reason to believe that the owner has a bona fide desire to repair or restore. The personal reason exception has been invoked in cases involving destruction of shade or ornamental trees that were of personal value to the owner, but of little commercial value. Though, courts have stressed that only reasonable costs of replacing destroyed trees with identical or substantially similar trees may be recovered. These cases have also allowed recovery of the value of the trees or shrubbery without regard to the diminution of the value of the land, if restoration of the land to its former condition was impossible or impracticable.

If the trespass is found to be willful and malicious, the court may impose more damages. If the trespass is found to be causal and involuntary or under a mistake of fact, the court must impose fewer damages.

Second-Hand Asbestos Exposure

By now, nearly everyone is aware of the risks of asbestos exposure, and certainly many workers exposed to asbestos in the course of their work have now been compensated. But because the illnesses associated with asbestos take many years to manifest themselves, courts will continue to deal with the question of damages for such injuries long after measures have been taken to limit workers’ exposure. Since asbestos is easily communicated to others, courts have recently begun to address the question of second-hand asbestos exposure. If you’re loved one was regularly exposed to asbestos in the past, is it possible you have also been exposed? And if so, should you also be entitled to compensation for that exposure from your loved one’s employer?

This question was recently addressed by the Illinois Appellate Court (5th District) in Simpkins v. CSX Transportation, in which the plaintiff alleging injuries resulting from her husband’s (work-related) asbestos exposure. Specifically, she alleged that she developed cancer from the asbestos transported by her husband’s body and clothes. The lower court had dismissed her claim against one defendant on the grounds that, as a matter of law, an employer owes no duty of care to the families of its employees.

In reversing the lower court’s decision, the appellate court considered four factors in finding the existence of a duty to the worker’s family: (1) Was the risk of harm foreseeable? (2) Was the injury likely to occur? (3) What type of burden was it for the employer to protect its employee against this injury? (4)What consequences are there of imposing this duty? The appellate court reversed the lower court’s decision and ruled that the husband’s employer did have a duty of care toward its employee’s immediate family. This decision directly opposes that of an earlier Second District Appellate Court case, where it was held that an employer has no duty to protect when it has no direct relationship with the plaintiff.

Apparently, the Fifth District broadly interprets the term “duty.” In the court’s analysis, particular attention was paid to the first factor, foreseeability.  In the present case, the court found that the harm to the plaintiff/wife was reasonably foreseeable because the employer should have anticipated that she would be exposed to the asbestos, and should have known the risks associated with second-hand asbestos exposure.

Even though the court limited its ruling in this case to immediate family members, it expressly left open the question of whether employers could be found to owe a duty of protection to anyone who regularly comes into contact with employees exposed to asbestos-containing products. If you believe you have suffered injury from second-hand asbestos exposure, from a family member, or from anyone else with whom you’ve had regular contact, be sure to consult with an attorney to fully understand the implications of this split on your potential claim.

 

Incriminating a Witness For Testifying S/he Used Illegal Substances

Can a witness be incriminated for testifying in a deposition in a worker’s compensation, noncriminal proceeding that he used unlawful substances in the past?

There is persuasive authority that might allow a witness to be compelled to testify whether s/he used illegal drugs in the past. Liability for workers’ compensation may exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment in cases, including where the injury is not caused by the intoxication, by alcohol or the unlawful use of a controlled substance, of the injured employee.

If an employee’s injury is caused by his or her unlawful use of a controlled substance, it may be necessary for the employer to ask if the employee had used illegal drugs in the past since that would be a factor in determining whether the employee’s injuries resulted from his/her own intoxication.

If the workers’ compensation case involves a psychiatric injury compensable as a mental disorder which causes disability or need for medical treatment, in order to establish that a psychiatric injury is compensable, an employee may need to demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury. This may allow an employer to inquire into an employee’s past drug use to determine if the employee’s psychiatric injury was caused predominantly by the actual events of employment, or the employee’s own use of illegal substances.

If there is a witness’ communications to a psychotherapist as a patient, the evidence code may not provide for privilege as to a communication relevant to an issue concerning the mental or emotional condition of the patient if the issue has been tendered by the patient. For example, if the witness is a patient of a pschotherapist, by claiming that the patient has psychiatric injuries, the patient puts his mental condition in issue. There might not be privilege concerning communications with a psychotherapist.

As to the privilege against self-incrimination, the US Constitution states that persons may not be compelled in a criminal cause to be a witness against themselves. The self-incrimination privilege can be claimed in any proceeding, whether criminal, civil, or administrative.

However, the privilege against self-incrimination of a witness is not to keep out probative evidence. The privilege is only to prevent testimony which might be used against him in a subsequent criminal suit. A self-incrimination claim may be rejected if under the circumstances, the witness may not reasonably apprehend that the disclosures could be used against him in a criminal prosecution. For example, a warning against self-incrimination would not be required in a case involving narcotic addiction if narcotic addiction is not criminal conduct.

A party seeking civil relief may not refuse on the grounds of the privilege to testify on matters relevant to his recovery. Courts in several jurisdictions have recognized that injustice may result where the parties to litigation, exercising the constitutional privilege against self-incrimination, refuse to testify concerning matters relevant and material to the issues of the pending cause. To permit relief to someone who refuses to testify on matters which, if known, could prevent recovery, is unfair.

In a workers compensation case for civil relief, a witness who used illegal drugs in the past may be compelled to testify but may not be subject to criminal liability if narcotic addiction is not criminal conduct.

What Information Is Discoverable in a Personal Injury Case?

In a personal injury case, discovery extends to any information that reasonably might lead to other evidence that would be admissible at trial. Admissibility at trial is not a prerequisite. Public policy favors discovery. Any doubt is generally resolved in favor of permitting discovery, especially when the issues in the case are not clearly established.

The fact that the party seeking information does not know precisely what s/he seeks, but is attempting to obtain all possible information for the purposes of the case (i.e. on a “fishing expedition”), is no basis for holding, per se, that a discovery request is improper. Discovery of all relevant material during the time of preparation is the aim. Discovery intends that each party shall divulge the information in the party’s possession. Though, the method of “fishing” may be improper (i.e placing the burden and cost of supplying information equally available to both solely upon the adversary).

One limitation on the scope of permissible discovery is that the information sought be not privileged.

Where any of the following apply, information is absolutely protected from disclosure in a personal injury action. The court cannot weigh or balance the privilege against the need for the information sought.

• Self-incrimination
• Attorney-client
• Spousal communications
• Physician-patient
• Psychotherapist-patient
• Educational psychologist-patient
• Clergyman-penitent
• Sexual assault victim and counselor
• Official records

The following information receives only qualified protection from pretrial discovery. Disclosure may be compelled if the court finds the interest of justice in obtaining the information outweighs the interests sought to be protected.

• News reporter’s sources
• Official information
• Police personnel files
• Trade secrets
• Attorney work product

As to objections made during a deposition, which is a witness testimony outside of court, all objections made are to be recorded by the deposition reporter. However, an objection does not excuse the deponent from the duty to answer, unless the objecting party demands that the deposition be suspended to permit a motion for protection. This is why the attorney who defends the deponent usually may not do much except take notes. When there is a protective order motion, the deponent answers the question, and the testimony is received, subject to the objection. If the testimony is offered at trial, the court will rule on the merits of the objection.

Although not prohibited by statute or case law, an attorney who instructs a deponent not to answer a question may violate standards of professionalism. The federal rules prohibit instructing a witness not to answer except where necessary to preserve a privilege.