Thursday, May 11, 2006
STUDENT LOCKED OUT OF SCHOOL SUES AFTER RAPE
Jim Suhr wrote an interesting article in the May 4, 2006 Chicago Sun-TImes about a tragic situation in East St. Louis, Illinois. According to the article, a female high school student had stayed late at school in order to meet with her counselor. After the meeting was completed, the student went outside, but realized she had missed her bus. The student attempted to get back into the school to call for a ride, but was barred from re-entry, and told to walk home or walk to a nearby bus stop. The student then began to walk to the bus stop. As she approached the bus stop, she was accosted by four men who forced her into a car. The student was subsequently raped by one of the men. The student recently filed a federal lawsuit against the school district and several administrators. The lawsuit alleges that the policy to bar re-entry to the school building strands students in an area riddled with violent crime. The complaint goes on to allege the school knew that students locked out on the street were in danger, but enforced the policy anyway, in reckless disregard for their safety. I anticipate the District attempting to get the suit tossed claiming protection under the Intergovernmental Tort Immunity Act. Have to see where this case goes...
Monday, May 08, 2006
CUBS ACE PRIOR HUNG WITH FIRST LOSS OF 2006
Cubs pitcher Mark Prior suffered his first loss of the 2006 season - in the not so friendly confines of the Circuit Court of Will County. Prior had been sued by Just Ducky Too, a Naperville business for failing to fulfill the terms of a personal appearance at the store. Prior agreed to sign 1,000 replicas of Wrigley Field. For that Herculean effort, he was to be paid $50,000. In addition, he was to sign another 300 collectibles at the store, for which he was to be paid $19,800. The event did not go well. Just Ducky Too sued Prior, alleging that he had failed to sign the requisite number of items and left the store abruptly, resulting in lots of unhappy fans. Prior, through his attorneys, argued that Just Ducky tried to make the appearance a "Meet and Greet" requiring Prior to do more "work" than the contract specified.
Judge Herman Haase ruled on May 4, 2006 that Prior owed the store $31,000 because Prior never signed the requisite number of stadium replicas. Haase did throw a bone to Prior when he noted in his ruling that there was no evidence that Prior had behaved badly.
Prior's attorneys noted that the ruling was a "clear vindication" for Prior. Just Ducky Too's lawyers, in response, questioned how anyone could look at the ruling as a clear vindication when Prior was ordered to pay $31,000[good question, I might add].
No comment from the Cubs about the lawsuit. Nice to see the Cubs are consistent. Lose at home, lose on the road and lose in Court.
Judge Herman Haase ruled on May 4, 2006 that Prior owed the store $31,000 because Prior never signed the requisite number of stadium replicas. Haase did throw a bone to Prior when he noted in his ruling that there was no evidence that Prior had behaved badly.
Prior's attorneys noted that the ruling was a "clear vindication" for Prior. Just Ducky Too's lawyers, in response, questioned how anyone could look at the ruling as a clear vindication when Prior was ordered to pay $31,000[good question, I might add].
No comment from the Cubs about the lawsuit. Nice to see the Cubs are consistent. Lose at home, lose on the road and lose in Court.
Friday, May 05, 2006
FOX LAWSUIT AGAINST WILL COUNTY STATE'S ATTORNEY TO GO FORWARD
Kevin Fox has been allowed to go forward with his lawsuit against former Will County State's attorney Jeff Tomczak. The lawsuit arose out of the murder of Fox's young daughter Riley. Fox sued Tomczak, as well as several other defendants, alleging that they conspired to implicate Fox in the murder. According to the complaint, the defendants came up with a story that started with Fox accidentally injuring his daughter at home. The concocted story then had Fox, in a panic that he had killed Riley, faking her kidnapping and sexual assault. Fox further alleges that the defendants scared him into confessing to the murder by suggesting that he might only face manslaughter charges. Fox was imprisoned for eight months, but ultimately freed when DNA from his daughter's body implicated an unknown party. The DNA samples the resulted in Fox being freed had inexplicably sat at an FBI lab for approximately 8 months before being tested. Tomczak had filed a motion to dismiss the case, but Federal Judge John Darrah denied the motion. Darrah did dismiss a claim against Will County Sheriff Paul Kaupas.
Wednesday, May 03, 2006
FREQUENT TRESPASS DOCTRINE
The Illinois Appellate Court recently discussed the "Frequent Trespass Doctrine" in the Nelson v. Northeast Illinois Regional Commuter case. In that case, Shanica Nelson filed suit against Metra after she was struck by a commuter train while trespassing on Metra's tracks. Shanica was injured on September 2, 1999. She had watched her boyfriend's football practice and walked home with him after practice. As she did so, she came to a path near the Metra tracks that was apparently used quite often by kids in the area. She followed the path to where it ended very close to the actual tracks. She then walked across the tracks, intending to enter the path again on the other side. After crossing the tracks, Shanica was walking toward the path on the other side when she was struck by a train. Metra moved for summary judgment, arguing in part, that the train tracks represented an "open and obvious" danger. The Court denied the motion, but agreed to certify the following question: Whether the risk of crossing a railroad track on which trains may be operating, is an open, obvious peril for which the railroad owes no duty, regardless of the legal status of the individual crossing the track.
Plaintiff argued on appeal that the facts alleged in the complaint placed plaintiff in the "frequent trespass exception". Under this exception, a landowner is liable for injuries to a trespasser proximately caused by its failure to exercise reasonable care in the course of activities where the landowner knows, or should know, that trespassers habitually enter its land at a certain point. The Appellate Court explained the rationale for the exception, citing Miller v. General Motors, 207 Ill.App.3d 148, "This exception has developed because of the concern that human safety ought to be more important than the landowner's interest in unrestricted freedom to use his own land as he sees fit. This view is especially prevalent in cases in which the burden on the landowner and the expense in taking precautions to prevent harm are not great. If that burden is very slight and the risk of harm to the trespasser is correspondingly very great, some commentators have found good reason to hold the landowner liable for injuries sustained on his land by the trespasser. This rule applies mostly in the case of frequent trespass upon a limited area. Miller, 207 Ill.App.3d at 155. The doctrine, the Court noted, is focused on the landowner's knowledge of the risks, not on the trespasser's knowledge of the risks involved. The nature of the risk as open and obvious becomes irrelevant - the only issue under the doctrine is whether the landower was aware of the risk and was in a position to prevent harm.
The Court went on to hold that any open and obvious risk in crossing the track did not negate the Metra's duty toward plaintiff under the frequent trespass doctrine. The case was then remanded back to the trial court. There is some additional discussion in the opinion relative to the applicability of certain provisions of the Tort Immunity Act. This post is long enough though, and there is no good reason to bore you any further.
Plaintiff argued on appeal that the facts alleged in the complaint placed plaintiff in the "frequent trespass exception". Under this exception, a landowner is liable for injuries to a trespasser proximately caused by its failure to exercise reasonable care in the course of activities where the landowner knows, or should know, that trespassers habitually enter its land at a certain point. The Appellate Court explained the rationale for the exception, citing Miller v. General Motors, 207 Ill.App.3d 148, "This exception has developed because of the concern that human safety ought to be more important than the landowner's interest in unrestricted freedom to use his own land as he sees fit. This view is especially prevalent in cases in which the burden on the landowner and the expense in taking precautions to prevent harm are not great. If that burden is very slight and the risk of harm to the trespasser is correspondingly very great, some commentators have found good reason to hold the landowner liable for injuries sustained on his land by the trespasser. This rule applies mostly in the case of frequent trespass upon a limited area. Miller, 207 Ill.App.3d at 155. The doctrine, the Court noted, is focused on the landowner's knowledge of the risks, not on the trespasser's knowledge of the risks involved. The nature of the risk as open and obvious becomes irrelevant - the only issue under the doctrine is whether the landower was aware of the risk and was in a position to prevent harm.
The Court went on to hold that any open and obvious risk in crossing the track did not negate the Metra's duty toward plaintiff under the frequent trespass doctrine. The case was then remanded back to the trial court. There is some additional discussion in the opinion relative to the applicability of certain provisions of the Tort Immunity Act. This post is long enough though, and there is no good reason to bore you any further.
Monday, May 01, 2006
ILLINOIS PATIENTS ASKED TO SIGN PLEDGE NOT TO SUE
The Chicago Sun Times recently reported about some doctors at a local Chicago area health clinic using a new tactic to dissuade patients from filing medical negligence lawsuits. The Clinic, WomanCare, asks patients to sign a contract promising not to file "frivolous" lawsuits. The doctors don't require patients to sign, and will even treat those patients who refuse. Wow, those doctors sure are humanitarians.
The contract is supposed to "level the playing field". This idea apparently originated with some outfit called Medical Justice Services, out of North Carolina. Medical Justice CEO Dr. Jeffrey Segal explained that most patients "...see themselves as rational and reasonable, and not the type of person who would file a frivolous claim". The unstated inference there, in case you missed it, is that anyone who does file a medical negligence claim must be both unreasonable and irrational. Segal explained that if a patient who signs the contract later files a medical negligence lawsuit, the doctor can then sue the patient for breach of contract. Medical Justice has also pledged to pay up to $100,000 in legal fees to help doctor with the contract claims. Suits are apparently pending in Ohio and Pennsylvania. Segal commented that the threat of being countersued will deter "frivolous lawsuits"
There are just so many things wrong with this. First, who decides whether a lawsuit is frivolous? The contract, doesn't define the term. But Dr. Segal says the litigation guidelines from medical societies could be used to determine if a lawsuit is frivolous. So in effect, the people who are being sued get to decide if the lawsuit has merit? That doesn't sound like a level playing field to me.
And the whole idea of patients running around filing silly claims against doctors is absurb. First, most medical malpractice cases involve catastrophic injuries. There is nothing "frivolous" about the victims of medical negligence. Lots of these victims die. And lots of them are condemned to lives of permanent disability, deficit and disfigurement. The fundamental assertion in medical cases is that some medical provider caused those conditions. How then, could anyone suggest the case is "frivolous"? Medical malpractice cases are extraordinarily complicated and expensive. In Illinois, just to file the case you need to have a medical expert review the facts and certify a case as meritorious. After that, the patient's lawyer has to be prepared for years of expensive, technical litigation, where he is risking hundreds of thousands of dollars in out of pocket expense, not to mention the cost of his time. Simply put, lawyers don't file medical malpractice claims on a lark in an attempt to squeeze the doctor's insurer for a quick settlement. Any lawyer who did wouldn't be in practice very long.
The saddest part of all this is that there will be victims of medical negligence out there who won't assert their rights because of this scare tactic. Which is just what those guys who blabber on about a "level playing field" want.
The contract is supposed to "level the playing field". This idea apparently originated with some outfit called Medical Justice Services, out of North Carolina. Medical Justice CEO Dr. Jeffrey Segal explained that most patients "...see themselves as rational and reasonable, and not the type of person who would file a frivolous claim". The unstated inference there, in case you missed it, is that anyone who does file a medical negligence claim must be both unreasonable and irrational. Segal explained that if a patient who signs the contract later files a medical negligence lawsuit, the doctor can then sue the patient for breach of contract. Medical Justice has also pledged to pay up to $100,000 in legal fees to help doctor with the contract claims. Suits are apparently pending in Ohio and Pennsylvania. Segal commented that the threat of being countersued will deter "frivolous lawsuits"
There are just so many things wrong with this. First, who decides whether a lawsuit is frivolous? The contract, doesn't define the term. But Dr. Segal says the litigation guidelines from medical societies could be used to determine if a lawsuit is frivolous. So in effect, the people who are being sued get to decide if the lawsuit has merit? That doesn't sound like a level playing field to me.
And the whole idea of patients running around filing silly claims against doctors is absurb. First, most medical malpractice cases involve catastrophic injuries. There is nothing "frivolous" about the victims of medical negligence. Lots of these victims die. And lots of them are condemned to lives of permanent disability, deficit and disfigurement. The fundamental assertion in medical cases is that some medical provider caused those conditions. How then, could anyone suggest the case is "frivolous"? Medical malpractice cases are extraordinarily complicated and expensive. In Illinois, just to file the case you need to have a medical expert review the facts and certify a case as meritorious. After that, the patient's lawyer has to be prepared for years of expensive, technical litigation, where he is risking hundreds of thousands of dollars in out of pocket expense, not to mention the cost of his time. Simply put, lawyers don't file medical malpractice claims on a lark in an attempt to squeeze the doctor's insurer for a quick settlement. Any lawyer who did wouldn't be in practice very long.
The saddest part of all this is that there will be victims of medical negligence out there who won't assert their rights because of this scare tactic. Which is just what those guys who blabber on about a "level playing field" want.
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