August 15, 2020

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.

 

What is Discovery?

When an accident happens, the first thing parties should do in a personal injury claim is to investigate. Then, engage an experienced Chicago personal injury attorney who knows about discovery. Discovery is not a substitute for investigation. Without proof, an accident plaintiff will not have enough to get to trial.

In investigation, the plaintiff needs to look over the accident scene, and talk to witnesses. Once investigation is complete, the plaintiff can hand over the data to the attorney for discovery to begin. Discovery translates facts into admissible evidence during trial. An injury plaintiff who understands discovery knows the tricks a defendant may use to dismiss a case.

In a Complaint, a plaintiff seeks admissions by the defendant. The defendant’s Answer will provide some hints on discovery, but the defendant who pleads every possible defense may confuse the plaintiff into thinking the Answer is boilerplate. This leads the plaintiff to overlook the defenses. Then the defendant moves for entry of default or dismissal because the affirmative defenses were not contested. To combat this trick, the plaintiff should reply to affirmative defenses and move to strike those that do not apply. This protects the plaintiff from inapplicable defenses and gets rid of non-issues early.

Another defendant trick is to make a motion to dismiss when the plaintiff does not answer the defendant’s interrogatories submitted at the same time as the Answer. To combat this trick, serve interrogatories with the Complaint or as soon as the rules of civil procedure allow. This makes the defense answer discovery first so the plaintiff gets a leg up on the facts.

Requests for admissions ask a party to admit to whether a statement is true or false. When the defendant responds to requests for admissions in a personal injury case, the defendant may provide long responses that do not answer the questions. To get rid of this, file a motion to deem the admitted the facts the plaintiff wants because responses that do not answer the questions usually do not follow the rules of civil procedure.

Sometimes the defendant does not believe the plaintiff is really injured and makes the plaintiff go to an independent medical exam. This is when the defendant pays for a doctor to examine the plaintiff in the body part claimed to be hurt. The doctor may demean the treating doctor in the medical report like saying the treatment was not necessary or not attributed to the accident. The plaintiff should have someone taking notes at the doctor session to observe what actually takes place. Also, send the medical report to the treating physician. Doctors who insult other doctors will find out they will not have long lasting careers by insulting other doctors.

In a personal injury case, trial makes up perhaps 10% of the game. Trial starts with investigation and then discovery. To navigate through a personal injury action with confidence, engage an experienced Chicago personal injury lawyer.

When and How to Commence Arbitration in an Uninsured or Underinsured Motorist Claim

In a perfect world, every defendant to an automobile injury claim would have deep pockets and a generous automobile insurer. Sadly, this isn’t the case, so what to do when you were, say, hit by a car when the negligent driver was not insured? Or what if the driver simply hit your car and drove away? In these scenarios, a person injured in an automobile accident will often seek reimbursement from their own insurance company, with what is known as “uninsured” or “underinsured motorist benefits.” Often times, an attorney will demand such payment by letter. In that case, it is important to know when and how to notify your insurer of such a claim.

The 1st District Appellate Court was recently confronted with the question of what actions a claimant must take against to commence arbitration, in Rein v. State Farm, 407 Ill.App.3d 969 (1st Dist. 2011). In this case, the plaintiff was injured in a hit and run accident. Because the driver was never identified, the plaintiff sought recovery in the manner described above from her own insurer, State Farm. The plaintiff’s attorney sent a letter notifying State Farm of her claim for uninsured motorist benefits nearly two years after the accident. The letter stated, in part, “You are hereby notified that it is our intention to pursue an Uninsured/Underinsured Motorist Claim against State Farm Insurance under the above-captioned policy…”

The applicable policy required that any arbitration or suit seeking such benefits would be barred unless it commenced within two years of the date of accident. It also stated that, if the claimant requested arbitration, it must select an arbitrator as well. However, the policy wasn’t clear as to whether a mere letter was sufficient to “commence arbitration or suit.”

The lower court ruled that it was not and dismissed plaintiff’s action and found that the “claim notice” letter sent by plaintiff’s attorney was insufficient to “commence arbitration,” as required by the applicable policy. The decision was affirmed on appeal, although the 5th District reached a different conclusion under similar circumstances. Had the 1st District been free to apply similar logic, the plaintiff may have succeeded in her claim. However, the legal principle of stare decisis binds each circuit court to the decisions and precedents within its own district.

This outcome only underscores the importance of abiding by statutes of limitations and other claim deadlines, which will certainly be upheld in court. The deadline itself may depend on your particular insurance policy. Avoid the risk of missing such deadlines by consulting with an attorney immediately after you have suffered an injury.

Outliving the Settlement….

On October 26, 1986, Dan Crews was three years old, in a booster seat riding in his mom’s car. His mother lost control of the car and hit another vehicle. Crews suffered a spinal cord injury. The booster seat he was strapped into was deemed defective, and he received a $6 million personal injury settlement in 1992, $4.2 million after attorneys fees were paid. This money was put into a trust fund. When the settlement was reached the doctors projected Crews to live 20 years. He’s already 27, has outlived the settlement money, and now doctors say that he might live to be 40.

Crews cannot move his body from his neck down, and needs a mechanical respirator to breathe for him. He can speak and eat, but is completely dependent on 24 hour supervision. With his mother as his primary caregiver, he has to be turned every two hours, can’t go to the bathroom, and can’t wash himself.

Crews spends $300,000 a year on nursing care and has at least that much in unpaid medical bills. In addition, he pays the sate $500 a month for Medicaid for a program which will qualify him for a nursing home after he loses/sells his property. Crews custom built his home for $350,000.00 and still owes $190,000.00 on the house. It is clear that in addition to the other expenses in his life, the mortgage is not being paid. With help from Freddie Mac, he reached an agreement to pay half of the mortgage until the house is sold.

Who should be held responsible for the inadequate settlement amount? What remedies will be available to future plaintiffs. These are questions the legal system will only need to address more and more in the future, as medical technology improves, plaintiffs will keep outliving their projected life expectancy.

A Twist on Negligence

Granado v. Mann exposed yet another legal theory attorneys can explore, negligent entrustment. In this case, Samantha Granado (19) was a passenger in the front seat of a car. The car was driven by Tessa Graves (18), who ran a red light which caused the car to be struck by a newspaper delivery truck. Granado suffered broken ribs, fractured spine, a traumatic brain injury, and required hospitalization and physical therapy. The total amount of medical expenses was $152,000.00. Additionally, Granado still suffers from posttraumatic stress disorder, cognitive impairment and depression, which have collectively prevented her from maintaining employment.

Clearly, the passenger did nothing to cause the collision, and her attorney realized that the driver, Graves, was inexperienced and should not have been allowed to drive at night. Essentially, he determined that the parents negligently entrusted the car to their daughter. Thus, the parents are liable for their own negligence, separate from their daughter’s negligence.

Negligent entrustment occurs when the loan of your vehicle is reckless or negligent. This legal theory can be used in several different scenarios: lending a vehicle to drivers who are drugged or visibly intoxicated; lending a vehicle to minors who have their license but don’t have experience in rush hour traffic; nighttime driving or expressway driving; or lending a car to a friend knowing they are using it for racing or some other reckless activity. Merely lending your vehicle to someone, and they get in an accident, does NOT mean you are liable. It will be determined on a case-by-case basis depending upon the circumstances. It also should be noted that the party who negligently entrusted their car to another party may have coverage under their insurance policy, but will then receive a substantial increase in their insurance premiums.

Springfield Addresses Joint & Several Liability

Joint and several liability is the concept whereby one defendant can be held liable for the full amount of an obligation, usually damages in tort, regardless of their share of responsibility. A perfect example is a four car chain accident. The last car in the line, hits the third car, pushing the third car into the second, and the second into the first. Without each of the cars, the first car never would have been damaged. All parties have a percentage of liability to the injured driver in the first car, but under joint and several liability the plaintiff can pick which party to sue and from whom to collect damages. HB 1902, allows juries to consider the relative blame of each party who could have been sued by the plaintiff. State representative Dwight Kay sponsors this bill, attempting to improve the business climate. Clearly, plaintiff attorneys are opposed, claiming that it won’t be fair for their clients.

Joint and several liability allows the plaintiff to collect from whichever defendant they choose, usually electing the defendant with the most money. Defendants will try to have the damages reduced to reflect their share of responsibility, but courts often refuse to do so. The defendant who was forced to pay the entire judgment, must seek contribution from the other parties. This potentially creates more litigation which the proposed bill would correct.

In an attempt to prevent a defendant from pointing the finger at a party not present in the courtroom, plaintiffs will be forced to name every defendant that might be responsible. And regardless of whom the plaintiff names in the suit, defendants will likely argue that a non-present party was the responsible one. If that is the case, jurors may not be able to accurately decide percentages of responsibility. In turn, this could cause settlements to be less frequent because a defendant’s incentive to go to trial increases if he can argue he was less responsible and thus should pay less. The exact effect the bill will have is not clear, but if this bill does in fact get passed, the landscape of joint and several liability’s use in the courtroom will be changing.

Employers Limiting Liability Through Cell Phone Policies

As an employer, you give your employee a Blackberry with the intent that their availability be a phone call or text away. But what happens when your employee is driving, her supervisor calls her, she feels obligated to answer, and in the process of doing so, hits the car in front of her? 4 out of every 5 accidents (80%) are attributed to distracted drivers.

This is yet another way respondeat superior or vicarious liability may implicate employers; negligence by employees that will be passed onto the employers, unless the employer communicates a cell phone policy to its employees. If not, the employee or their family may file a negligence lawsuit against the employer for their injuries, and they might win. A compelling case can be made that the employee felt that they had to answer the phone based on something their boss said. To get around this, a clear cell phone policy, whether the company has provided the cell phones or not, will in effect, allow the employers to escape liability. The following is an example of such a policy:

Due to research that indicates that cell phone use while driving is dangerous, and may even approach the equivalent danger of driving while drunk, according to some studies, your company prohibits employee use of personal cellular phones, either hands on or hands free, or similar devices, for business purposes related in any way to our company, while driving.

We recognize that other distractions occur during driving, however curbing the use of cell phones, while driving, is one way to minimize the risk, for our employees, of accidents. Therefore, you are required to stop your vehicle in a safe location so that you can safely use your cell phone or similar device. Engaging in your company business using a cell phone or similar device while driving is prohibited. Engaging in your company business using a cell phone or similar device that is supplied by the company, or while driving a company-supplied vehicle, while driving, is prohibited.

Employees who violate this policy will be subject to disciplinary actions, up to and including employment termination. (available at humanresources.about.com/)

Steps To Take After A Chicago Auto Accident

Car accidents can disrupt your life. If you are involved in a vehicle accident, make sure to call the police, and have a police report written up at the scene. Because people’s memories and road conditions fade or change, a police report may be credible evidence at trial or settlement discussions. It documents what occurred a few moments after an accident. The closer a recording is to an accident, the more reliable.

At the scene, the police may give you a number to obtain the report from the police station. Make sure to get a copy and read it carefully. If you have insurance, send a copy to the insurance company. The police report may even assist in assigning liability if the police officer specifies a party violated the vehicle code. Even if there is no citation issued for a violation, the officer indicates that the accident occurred because of the carelessness of one side.

If after the accident, you see that the officer made a negative comment in a police report about you or did not include something, find the officer and ask the officer to say for sure who was at fault, or state that the officer cannot tell clearly who was at fault if that is the case. If you find the officer, s/he will most likely go by what is in the report because s/he writes so many reports s/he may be unable to remember one accident from another. Note the date and time you speak with the officer so if the other party claims you are liable for the accident because of an officer’s negative comment, you can say you already asked the officer about it and the officer declined to state specifically who was at fault.

The police report will include all the parties involved in the accident and any witnesses at the scene. You do not need to determine who was at fault. Let a Chicago attorney handle the investigations. Give a copy of the police report to an experienced Chicago personal injury attorney who will notify anyone who might be at fault. Do not speak to the other parties in the accident. You just need to find out their addresses, full names, employers, and insurance details. You do not need to give a statement on your take about the accident. A Chicago personal injury attorney can help you let responsible parties know there was an accident on a particular date and time, that you were injured, and you intend to file a claim. Giving notice prevents unfair surprise when file a claim.

If you or a loved one has been injured or killed in a car accident, contact us today to pursue your claims.

What You Can Recover in a Chicago Car Accident

2THEADVOCATE.COM reported that on November 29, 2009, a 2000 GMC Safari Minivan carrying 15 people went out of control and rolled on a highway, striking a delivery truck, and then leaving the driver and 5 children dead, and 10 other people critically injured.

If you are involved in a car accident in Chicago, you may be entitled to recover damages for pain and suffering, emotional distress, medical, loss of earnings, and property damage if (1) your injury is a direct result of the car accident, (2) the accident was caused by another person’s carelessness, and not your own.

Engage an experienced Chicago personal injury attorney to help you evaluate the worth of your claim when your injuries are long term, the legal rules are complex, or liability is disputed.

The severity of injuries is measured by the amount of medical bills, length of time to recover, and types of injuries. Soft tissue injuries are difficult to prove. They are not permanent. There is discomfort to the muscles or nerves, but you cannot pinpoint them like broken bones that cause life disruptions. Diagnosis of the injury may run up the medical bills with tests and exams, but bills relating to treatment determine the seriousness. Medical bills from doctors, hospitals, clinics are given more weight than physical therapy and chiropractors. Physical therapy under a doctor’s referral and control is more likely lumped as part of medical specials than physical therapy that was not recommended. If a doctor prescribes medication, convince the responsible party the injuries are serious depending on how strong and how long the medication is prescribed. Taking prescription drugs indicates a doctor viewed an injury as painful.

Claims where the legal rules are complex include toxic exposures. Exposures to contaminants to air, water, or soil require expert scientific data to prove. Liability may be disputed when an insurance company or government entity refuses to make a fair settlement.

If you are a survivor of a parent, spouse, or child who died in a car accident, you may have claims for loss of consortium, including loss of companionship, sexual relations, financial losses, and pain and suffering. You need to establish (1) the death was caused by the careless actions of the defendant, and (2) happened as a result of the car accident.

When injured in a car accident in Chicago, obtain the following information from the other driver: name, address, phone numbers, name of liability insurance company. Read up on statute of limitations for car accident cases. The injured party is allowed to file suit from one day after the accident against a careless party until the statute of limitations expires after the accident.

If you or a loved one has been injured or killed in a car accident, contact us today to help you get the ruling you deserve.

What to Do After a Car Accident

With people driving above the legal blood alcohol content limit and not paying attention to traffic laws, accidents occur everyday on Chicago streets. After an accident, write down what you were doing at the time of the accident, where you were going, the people you were with, the time and weather, shocks to your body, anything anyone said. Take notes of conversations with insurance adjusters, witnesses, and medical personnel. These notes will be invaluable to a Chicago injury attorney when obtaining the maximum monetary compensation for your property damages and bodily injuries.

When injured in an accident, following release from the hospital, make daily notes of your pain and activities. If you do not record your pain, you will forget them once you recover and the injury marks on your body clear away. Take photos of injuries to later prove they existed immediately. Scars heal over time, making it difficult to establish you were ever hurt.

For economic loss, document days taken off from work, job opportunities missed, classes absent from if going to school, social gatherings not attended.

If an accident is with a truck, the following parties may be responsible for a plaintiff’s injuries: truck driver, truck owner, vehicle manufacturer, truck cargo shipper. Each Chicago injury lawyer diligently investigates the relationships between the responsible parties to make sure truck drivers who do not have many assets or trucking companies that try to avoid liability by arguing the drivers are independent contractors do not leave an injured person with little recovery.

With truck accidents, driver errors are likely to be the cause of accidents more so than other factors like weather, road conditions, or vehicle performance. Federal regulations require trucking companies to test drivers for substance abuse. Besides alcohol impairment, sleep deprivation or prescriptions drugs may impair a driver.

Federal regulations have rules on hours of service to ensure drivers obtain needed rest to drive safely. To prove sleep deprivation, a Chicago injury lawyer investigates the truck driver’s logs. Drivers are required by federal laws to record their driving information. Discovery will be made of driver trip tickets for deliveries including stamps that expose the time a driver picks up a load.

Often the legal aspects of vehicle accidents require urgent action. Contact us today to obtain the maximum monetary compensation for vehicle accident losses.