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What to Know About Passing an Illinois School Bus

Monday, November 19th, 2018

If you have been following the news this fall, you most likely have heard of the deadly school bus crashes that have been happening across the country. In a recent one-week period, five children were killed and six were injured in five separate incidents across the country. This seems like a good time to discuss the rules of the road when it comes to buses and school zones.

When it comes to buses, school zones and safety, some of the biggest concerns happen when cars and buses aren't moving. Kids run the greatest risk of being hurt when they are standing at the bus stop, according to the Illinois State Board of Education. In fact, most children between the ages of 5 to 7 are injured or killed while they're getting on and off the bus, and they enter an area labeled the "death zone."

Here is what you need to know - and what you should do - when you see a bus stopped with its flashing lights and extended stop-sign arm, or you are driving by a school.

Passing a Stopped School Bus:

The Law: In Illinois, all lanes of traffic in both directions must stop when a school bus is stopped to pick up or drop off kids while traveling along a two-lane road. This also applies to one-way streets no matter how many lanes of traffic. On a four-lane road with at least two lanes of traveling moving in the opposite direction - only motorists going in the same direction as the bus are required to stop.

Drivers should also stop at least 20 feet from the bus when they see the bus's flashing lights and stop sign extended in order to let students cross the road safely.

Penalty: First-time offenders can look forward to having their driver's license suspended for three months, and recidivists who are convicted a second time within 5 years could have their license suspended for a year. Offenders can face fines of $150 for the first conviction and $500 for subsequent offenses.

Speeding in a School Zone:

The Law: Under Illinois law, the speed limit for all school zones is 20 mph, regardless of what the speed is for the road the school is on. But that limit is only in effect from 7 a.m. to 4 p.m. on school days.

Speeding isn't the only thing prohibited in a school zone. Motorists are not allowed to pass while in a school zone, and pedestrians have the right-of-way in a school zone crosswalk.

Penalty: In most cases, speeding in a school zone is a petty offense. That means it is punishable by a minimum fine of $150 for the first offense and $300 for future offenses. Motorists must also pay $50 to the school district where the speeding violation happened.

Illinois also has "Jeff's Law" which was passed in 2007, a driver is considered to have been driving recklessly if he or she was speeding in a school zone and someone was hurt or killed. Another law that is also a decade old stipulates that a driver in any school zone crash that causes great bodily harm to a child or a crossing guard can be fined up to $25,000 and face possible jail time.

With all the incidents occurring across the country, it is a good time to be reminded to stop for school buses, slow down in school zones and pay attention to your surroundings.

- Attorney Kendall Hodges

The Hidden Legal Hazards of the Winter "Slip and Fall"

Friday, November 9th, 2018

While the first real snowfall of the year can give a lovely patina to the landscape, the ice and snow that is left behind by winter winds can also provide an unfortunate layer of legal complications to slip and fall injuries. As if a "slip and fall" injury was not difficult enough, the legislature and courts of Illinois have made it particularly complicated and difficult to be compensated based on injuries sustained from snow and ice.

Perhaps concerned about liability for what is a fairly common form of precipitation during the long winter months, it has long been the case in Illinois that, in many circumstances, property-owners in Illinois are not liable for injuries resulting from "natural" accumulation of snow and ice. If someone is injured on an otherwise normal walkway because they slipped on some freshly fallen snow, establishing liability can become extremely complicated. Even worse, there is no general legal duty (that is without some sort of maintenance contract or other arrangement) to actually clean up this natural accumulation, even when it could result in injury. The courts really have shifted the liability to the pedestrians at risk for injury.

Luckily, the manner in which courts interpret "unnatural accumulation" can be more broad than one would think. The classic example is snow that has been shoveled into a large pile, which then melts and refreezes, causing ice to present a hazard in a manner that it would not have naturally been the case. The actual layout of a property can also result in a sort of passive unnatural accumulation. If there is design flaw in a building such that water from a downspout runs across a walkway and freezes, someone who is injured on that ice may have a valid claim against the property owner for being negligent in the construction of their . Even neglecting to repair flaws in a parking lot which then result in unusual snow and ice distributions and hazards can be deemed to be unnatural accumulation.

The above applies to public spaces, primary. Homeowners have even more protections from liability, because the Illinois Snow and Ice Removal Act actually exempts them from liability even if their good-faith (but negligent) efforts to clean up the snow result in the conditions which lead to injury. The purported reasoning behind this is that the legislature wanted people to at least try to keep their homes cleared of snow and ice. Unfortunately, though, it can also result in situations where people are gravely injured without clear remedy.

The complex nature of these cases makes it even more important that you are assisted by qualified legal counsel. For inquiries related to any type of personal injury, please call our office toll free at 1-888-488-4LAW or via email at [email protected]. We look forward to hearing from you.

-Attorney Travis Dunn

Mediation Gains Momentum

Monday, October 29th, 2018

 

A recent study has shown that, out of all lawsuits filed in a particular county, only 3% actually go to trial. The other 97% will be disposed of through other means and that usually means settlement. Despite this fact, settlement between the parties to a legal dispute is often difficult or impossible to achieve. This is due to a number of reasons... diverging theories of the case... stubbornness to move from one's entrenched position... and sometimes simple lack of communication can prevent a case from settling when it should. Regardless of the reason, when parties to a dispute reach such an impasse, the answer may be mediation.

In recent years, mediation has gained serious traction in the legal community. More and more parties and their attorneys are turning away from the traditional adversarial nature of litigation and are looking to achieve resolution through more peaceful means. Mediation can be useful in almost all areas of law. In fact, many jurisdictions have begun to require parties in certain types of disputes to attempt mediation of their conflict before a judge will even hear their case. This has produced favorable results and has helped to decrease the glut of active cases in many otherwise overly taxed court systems.

There are many reasons for the increasing popularity of mediation. One important reason is that it gives the parties complete control over the destiny of their case. This may be highly desirable given the unpredictability of juries and the sometimes-inconsistent application of law by judges. Juries can be notoriously fickle. The outcome of a particular case is never certain when its fate is in the hands of 12 women or men randomly selected from the community. Likewise, a judge can certainly throw a wrench in the works of what was thought to be an ironclad case. Some attorneys believe they can predict how a judge will rule on a matter, but these individuals are frequently proven wrong by a judge who may apply the law differently than expected.

Another reason parties are ditching litigation in favor of mediation is stress. Trials mean stress. Stress for the lawyers and the parties. And if friends or family plan to testify at trial then stress for them as well. Even for the prevailing party, the victory of a trial is often hard won and comes with its own share of stress, anxiety and late nights and weekends spent preparing. Mediation provides a lower stakes atmosphere of cooperation and shared purpose in which the parties can advocate their positions without needless stress or sacrifice of time with friends and family.

Flexibility is another considerable advantage of mediation. Mediations can often result in flexible, creative solutions that may not be available at trial. Sometimes it's not all about a lump sum money payment. Payment plans sometimes come into play, as well as structed annuities and other compensation arrangements. And sometimes it's not all about a dollar figure. One party may find value in a handshake after a long, contentious dispute, or an apology may help grease the wheels of settlement negotiations. No one likes bad blood and it's a universal truth that most people are naturally drawn toward compromise and conciliation. Mediation facilitates that.

Given the myriad benefits of mediation, it's no wonder that it continues to increase in popularity as an alternative to litigation. Some even believe that it may one day supplant litigation completely. That may be a bold and somewhat premature prediction, but the merits of mediation continue to make themselves apparent as time goes on. Trials continue to serve an integral role in our legal system, but in a world mired in conflict and confrontation, mediation provides a legitimate, useful approach to resolving legal disputes and it should be considered by anyone currently involved in or anticipating litigation.

-Attorney Ryan Zaborowski

Increased Risk in Worker's Compensation

Friday, October 19th, 2018

In our office, we receive the Illinois Workers' Compensation Law Bulletin regularly. This bulletin discusses all the noteworthy cases that have been determined by the Commission. Through this bulletin, our office stays up to date on significant cases in workers' compensation. As I was reading the bulletin this week, a particular decision stood out to me. This decision is not only relevant for workers' compensation but even more for LaSalle County. This particular decision deals with plants and quarries and icy, muddy surfaces - two things that our area is all too familiar with.

In Ashcraft v. Pana Limestone Co., 26 ILWCB 134 (Ill. W.C. Comm. 2018), the Petitioner worked for the employer as a plant operator. His workstation was a tower, which he accessed with a manlift. His job duties included pushing buttons, and if there was a breakdown, he would go down to fix the problem.

On December 4, 2015, he was climbing into the employer's truck at the quarry to drive to his workstation when his foot slipped on mud or ice and he felt something pop in his left knee. The Petitioner's workplace was a quarry. The Commission found that a claimant's act of stepping into the employer's work truck during the workday at the employer's quarry where the ground is icy, muddy, and uneven constitutes a risk greater than that faced by the general public. Also, where the claimant works as a plant operator at a quarry, the risk of injury is inherent to the nature of his employment.

This means that employer's are covered at their plant and quarry sites when they are going into an employer's work truck during the workday where the surface is icy, muddy or uneven which is fairly common in Illinois.

If you have been injured as a result of a workplace accident or otherwise, you may be entitled to compensation, and with the help of an experienced attorney, you can seek damages for your injuries. If your find yourself in such a situation, give us a call. We offer free initial consultations, and we would be happy to set up an appointment to discuss the matter with you. Appointments may be scheduled through our toll free number at 888-488-4LAW or via email at [email protected].

-Attorney Kendall Hodges

Employer vs. Owner: Premises Liability and Workers' Compensation

Monday, October 15th, 2018

One of the hidden dangers of the Illinois Workers' Compensation Act is that is can potentially pop up, unwanted and unwelcome, in other civil lawsuits and act as a "shield" to civil liability for a plaintiff's employer. A perfect example of this is the case of John Bear and his suit against the University of Chicago, in which the Federal Northern District of Illinois on July 20, 2018 dismissed his claim for premises liability, ruling it to have been preempted by the Illinois Workers' Compensation Act. Even though the University owned and managed the location where the injury occurred, the court found that they were primarily acting as Mr. Bear's employer at the time-so if he wanted reparations for his injury the Workers' Compensation system was his proper avenue for doing so.

According to the court pleadings, Mr. Bear was hired in 2016 as an assistant football coach for the University. In November, 2016 he was involved in an altercation with an intoxicated spectator who crossed into a restricted section at a football game, and the University subsequently forced him to resign from his position. In his lawsuit, in which the offending spectator was also named, Mr. Bear stated that University had failed to reasonably maintain a safe environment at the football tailgates and additionally had discriminated against him on the basis of his gender during the course of his employment. As a result of the assault Mr. Bear stated in his complaint that he had suffered physically injury, amongst other damages.

This is all well and good, of course, but unfortunately for Mr. Bear the Illinois Workers' Compensation Act fairly states that, with some exceptions,

"No common law or statutory right to recover damages from the employer ... for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act."

Bear did attempt to argue that in this case the duty of the University to keep the visitors to their premises safe from unreasonable danger (like drunken tailgaters) fell under a doctrine known as the "dual capacity" exception. This allows both Workers' Compensation and civil liability when the employer is both acting in a separate capacity from employment and when the employer was acting as a distinct separate legal persona. The classic case (and the one that Bear tried to rely on here) is that of Marcus v. Green, a 1973 decision in the Illinois Appellate courts. In Marcus, a construction worker was injured when a scaffolding collapsed beneath him. The employer turned out to be not only the one doing the construction, but also a co-owner in a partnership that owned the building site. In that case, the dual identity of ownership was enough to allow the worker to both sue in civil court and to move for Workers' Compensation benefits.

The problem for Bear was that, unlike a construction company that happens to have an ownership stake in the land they are on, the whole reason that Bear was at the stadium was because he was working for the team that owned it. The court just wasn't able to meaningfully distinguish between the separate legal personas, and therefore Bear could not a take advantage of the exception. A seemingly technical distinction, and undoubtably a close case, but unfortunately a fatal one for his civil injury claim.

-Attorney Travis Dunn

Out of the Darkness

Monday, October 8th, 2018

I normally would write my blog next week instead of this week after a hectic week of trial prepping claims and trying countless workers compensation matters. It's something, as an attorney, that I can put off. A blog doesn't involve a person's livelihood. I am not protecting someone's rights by writing this. It doesn't put food on anyone's table because I wrote this article. Most of the last month of my life has been spent negotiating, arguing, and sometimes getting downright angry defending the laws I am sworn to uphold to those who choose to willfully ignore the laws that we are instructed to follow.

I've been putting together the LaSalle County Out of the Darkness Walk for the last month and compiling it's final stages so that next Saturday we have a successful and emotionally full day of walkers who find the family they're looking for outside of their own circle. It occurred to me yesterday, that part of the message that we're trying to send with the Out of the Darkness walk is to cherish every single moment and every single day. The good, the bad, the ugly, and the dead tired days. To love and understand each other for exactly every single state of mind we are in. And that's when it hit me- you can't live life putting off the "small" things. Don't put off until tomorrow the things you know you should do today. Use understanding rather than hate to solve your problems.

Part of my job is to help people through difficult times, and I'd be lying if I told you that was always an easy job. Some days I'm tired too. Some days I need a break. But what brings me back, and what has ALWAYS brought me back, is that I feel the need to protect my community. To protect people who's rights are being stomped on. To care for people in need. Those who do this job for the glory or the money are not going to be trustworthy or truly successful. True success, to me, means having clients who tell you that for the first time since they left the military they really felt like someone had their "six". It means getting flowers and cheesecakes from clients whose claims have been closed two years. It means a constant email chain from a client who lost his wife two years ago and who always checks in to make sure I'm updated on how his grandchildren are doing. The money allows me to keep a really incredible staff of people employed who now feel like my blood family, but money alone isn't what brings any of my staff members to work. It's a sense of duty. A sense of protecting those who we serve. It's the sense of good you know you've done at the end of the day. It's about making this a better and safer community to live in. It's about doing the small stuff and using compassion to protect my clients- my family- from harm.

Next Saturday, October 13, in downtown Ottawa at the Jordan Block at 1 pm, we'll be running the LaSalle County Out of the Darkness Walk and gathering. Over 200 walkers have pre-registered to walk in memory of those they've lost and to strengthen one another as we all fight battles not everyone else around us will immediately understand. It's a chance to love one another. To appreciate the day in front of us, and to know we aren't alone when we participate in it. My staff is volunteering their time for the walk. I have friends coming in from all over the state to join us and help to make this even more successful than it already is. We've already raised $28,000 dollars which is absolutely incredible, and next Saturday I'm hoping we break at least $30,000. But until then- I'm going to be taking the life lesson from today and living through it- don't put off the small things. Live each day with purpose and with a grateful heart, because you don't know what might happen tomorrow and not everyone has the opportunity to find that thankfulness in the same way you will. Spread love and understanding rather than anger, irritation, and hate. The next time you're at a grocery store and you're irritated because the person in front of you is taking too long, step back and try to understand their journey and what it might mean for them to be even out of the house at the grocery store. Doing the small stuff sometimes can change- and even save- a life. If you'd like to support our walk, you can donate at www.lasallecowalk.org. If you feel comfortable joining us, you can register at the walk site on the day of the walk. We hope to see you there as we continue to build and strengthen the community we live in. Until then, love one another, understand one another, and do the small stuff.
- Attorney Alexis Ferracuti

Of Bears and Barristers


Friday, September 28th, 2018

The Endangered Species Act was enacted in 1973 for the purpose of protecting critically imperiled species from extinction. One of those species was, and continued to be until 2017, the North American grizzly bear, otherwise known by its Latin designation, Ursos arctos horribilis, of the Greater Yellowstone Ecosystem. The Greater Yellowstone Ecosystem spans three states, Idaho, Montana and Wyoming. In 2017, The Trump Administration targeted the bears when it sought to delist the Yellowstone grizzlies as an endangered species.

On September 24, 2018, Judge Dana Christensen, for the United States District Court for the District of Montana, Missoula Division, entered an order vacating the June 30, 2017 Final Rule of the United States Fish and Wildlife Service which had delisted the Greater Yellowstone Ecosystem population of grizzly bears. Judge Christensen's order went on to state that it restored Endangered Species Act status to the Greater Yellowstone grizzly. This ruling served as a huge win for animal rights proponents and conservationists.

While this may seem like the Court taking an ethical or moral stance on hunting, Judge Christensen noted in his decision that his review of the issue was limited by the Constitution and the laws enacted by Congress and its inquiry was limited to answering the yes-or-no question of whether the United States Fish and Wildlife Service exceeded its legal authority when it delisted the Greater Yellowstone grizzly. Judge Christensen explained that his decision was made based on the facts that reduced Yellowstone grizzly populations would affect the genetic health and survival of other grizzly populations in the country and that the Fish and Wildlife Service erred in its use of scientific data in reaching its decision to remove grizzly protections. To put this in slightly more simple terms, the Court found that, whether delisting the grizzly was bad or good, the Fish and Wildlife Service went about making its decision in the wrong way and thus its actions were invalid.

Regardless of the Court's motivations in restoring protections for grizzlies, its analysis and conclusions are supported by real world data. A study conducted in 2018 by The Ohio State University found that a whopping 74% of scientists surveyed recommended continued Endangered Species Act protections for Greater Yellowstone Ecosystem grizzly bears. In its decision, the Court detailed the dire situation in which grizzly populations across the country currently find themselves, noting that 37 separate grizzly populations were identified in the contiguous United States in 1922 and that only 6 populations remained in 1975. The Court followed this fact with reference to the United States Supreme Court's previous opinion that the objective in enacting the Endangered Species Act in the first place was to "halt and reverse the trend toward species extinction, whatever the cost."

Yellowstone grizzlies are safe for now, but the gray wolf population of the park is currently on the chopping block as legislation has been introduced in Congress which would delist the species as endangered. If Judge Christensen's recent decision is any indication of the future, both sides of the issue are in for a fight.

-Attorney Ryan Zaborowski

How Much Will Your Speeding Ticket Cost?

Monday, September 24th, 2018

In Illinois, moving violations - violations that are committed in a moving vehicle - are taken very seriously. Most people view speeding tickets as minor and trivial, however, they can lead to severe consequences - such as license suspension, massive fines, and even time in jail.

Most people do not realize the monetary consequence of a speeding ticket. Not only do you have to pay a fine for a speeding ticket, but also your insurance rate increases. Speeding tickets costs vary by county in Illinois. This is because county and city government systems control how much they charge for certain violations. Regardless, the typical cost of a speeding ticket for traveling between one and 20 miles per hour over the speed limit is $120.00. It may seem like a small amount, but the implications of a small offense like speeding can have significant impacts on other areas of your life. Those consequences appear after you have agreed to pay your ticket. After receiving a traffic ticket, the first thing you might realize is that your insurance premium has increased. In some cases, a speeding ticket can result in the cost of your insurance increasing by thousands of dollars each year. In addition, this increase is not temporary - it can stay for years and if you were to receive another one most companies would drop you.

Further, Illinois uses a point system to track moving violations. I've discussed this point system in a previous blog, but to reiterate - if you receive 15 points or more as a first-time offender, you could face a license suspension period of two months to one year. If you are a repeat offender - it can result in four to 12 months of license suspension. It is also possible to have your license suspended or revoked for receiving 3 or more violations over a 12-month period. For adults under the age of 21, the rule is two or more over a span of 2 years. In majority of cases, people are not properly notified of their suspension and they continue to go about their business and end up driving on a suspended or revoked license. What they don't realize is that driving on a suspended license is a Class A misdemeanor, which can lead to a $2,500 fine and up to 364 days in jail.

If you have been given a traffic ticket for speeding, it is important you seek legal representation. Our office is here to help. Appointments may be scheduled through our toll free number at 888-488-4LAW or through our website at https://www.peterferracuti.com

-Attorney Kendall Hodges

It's Not All in Your Head

Friday, September 14th, 2018

It should come as no surprise that our physical health can have an effect on our mental well-being. If you suffer a worker's compensation injury and then experience, for example, a diagnosis of depression during your time of disability or psychological side effects of treatment, you may be entitled to benefits connected to that mental injury as well. In worker's compensation in Illinois, these are called "physical-mental" injuries.

Things work differently if a work injury does not have an obvious physical component. These "mental-mental" claims are necessarily more difficult to connect to employment, and have special requirement in order to be compensable.

There are two types of compensable mental injuries. First, the injury can be the result of a sudden, severe emotional shock traceable to a definite time, place and cause. For example, a bus driver who, while working, fatally hit a pedestrian and was later diagnosed with post-traumatic stress disorder was found to have suffered an injury compensable in workers compensation. Conditions such as PTSD which are traceable back to specific occurrences and stressors are often the type which can be successfully connected to employment, under both types of mental injuries.

The second type of purely mental injury is one in which a series of work events, while not individually rising to the level of a sudden, severe emotional shock, nonetheless meet the following requirements: (1) The mental disorder arose in a situation of greater dimensions than the day-to-day emotional strain and tension which all employees must experience; (2) the conditions exist in reality, from an objective standpoint; and (3) the employment conditions, when compared with the nonemployment conditions, were the major contributory cause of the mental disorder.

One recent successful claim under this second type of mental injury was a bus driver who suffered a series of incidents involving aggressive passengers, culminating in an instance where a group of youths taunted the driver and threw a brick and a bottle at him. This, the court found, was stress and tension beyond which even a Chicago Transit Authority employee might normally experience. On the other hand, the circumstances must really be unusual in order to fall under worker's compensation. Arguments with co-workers, disciplinary actions by employers, and even being a witness to a violent altercation have been found to be insufficient in some cases, even if there was subsequent mental health treatment.

Psychological injuries in the workplace can be even more insidious than physical ones, because they aren't the type of thing you can diagnose with an x-ray or a quick physical with the company doctor. Nonetheless, under certain circumstances they can be just as valid a worker's comp claim as any other injury.

-Attorney Travis Dunn

The Doctor Will Skype You Now

Monday, September 10th, 2018

On August 22, 2018, Governor Bruce Rauner signed into law certain bills aimed at providing mental health services to those in underserved and rural communities. Ultimately, the bill will allow Medicaid beneficiaries to access "telemedicine" services with mental and behavioral specialists. But what is telemedicine? Medicaid states on its website that telemedicine "seeks to improve a patient's health by permitting two-way, real time interactive communication between the patient, and the physician or practitioner at the distant site." It goes on to say that "[t]his electronic communication means the use of interactive telecommunications equipment that includes, at a minimum, audio and video equipment."

From a practical standpoint, telemedicine is usually administered in one of a few ways. The first is "store and forward," a method by which patient and doctor do not even need to be present at the same time. This typically involves the transmission of electronic medical records and sometimes diagnostic imaging studies (like x-rays) for the purposes of diagnosis and care. In such case, the healthcare professional may be able to assess a patient's condition and recommend treatment without ever actually speaking to him or her. Another way in which telemedicine is practiced is through remote monitoring. This allows a healthcare professional to monitor a patient's condition through various technological implements, an example of which is home-based nocturnal dialysis. Finally, telemedicine may also be administered through real-time interactive treatment. This would include videoconferencing between the patient and doctor and has become increasingly more viable due to the ability of smart phones to facilitate such interactions through applications such as Skype or Apple's Facetime.

The advancement and increasing availability of telemedicine is impressive, but is it a good substitute for traditional face-to-face interactions with your doctor? One study sought to answer this question by focusing on care delivered remotely via telemedicine compared to in-person care for Parkinson's patients. The study found that the virtual visits saved patients considerable time and miles traveled versus typical face-to-face appointments and that their efficacy was more or less on par with traditional in-person care. Then again, another study conducted recently found that as many as one in four virtual visits would be considered "inaccurate or incomplete."

For some patients in rural and underserved areas, traditional doctor visits are either impractical or impossible and it is these patients that stand to benefit most from new laws allowing them access to necessary treatment such as those put in place in Illinois last month. For those individuals, at least, telemedicine is an indisputable boon.

- Attorney Ryan Zaborowski

Texting While Driving: New Illinois Penalties

Friday, August 31st, 2018

It has become a common thread for me to discuss new laws in Illinois. Most of the blogs I've written involve discussing the new laws that Illinois has imposed that week, month or year. However, I feel as an attorney it is my job to make sure people are aware of the new laws that Illinois puts into effect. They usually aren't advertised, happen quite frequently and are forgotten about just as fast.

So, this weeks new Illinois law is higher penalties for texting while driving. Beginning July 1, 2019, a first offense of texting while driving will be charged a moving violation in Illinois. Previously, a first cell phone violation was treated as a non-moving violation and only second or subsequent violations counted against your driving privileges. The old law has been in effect since 2014. Fines and court costs also may be imposed under the new law. Further, this new law does not only apply to texting, but the Illinois law says that a person may not operate a motor vehicle on a roadway while using ANY electronic communication device.

The Illinois Secretary of State will suspend drivers over the age of 21 for three moving violations convictions within any 12-month period. For drivers under 21 years of age, a license suspension is imposed for only two moving violations convictions within a 24-month period.

The National Highway Traffic Safety Administration estimates that at least 25% of crashes involve distracted driving and driving a vehicle while texting is 6x more dangerous than drunk driving. This new law signed by Governor Rauner aims to make Illinois roadways safer.

If you receive a traffic ticket, it is important to take immediate action. As points add up on your driver's license, the risk of suspension or revocation increases. In such situations, it can be beneficial to retain the services of a skilled Illinois traffic lawyer. Our office is here to help. Appointments may be scheduled through our toll free number at 888-488-4LAW or through our website at https://www.peterferracuti.com

-Attorney Kendall Hodges

Age Discrimination Victims Vindicated

Monday, August 27th, 2018

When I write a blog post about an ongoing case, oftentimes it is to make a specific point about the law or to illustrate a particular principle. Most of the time, the cases themselves probably either reach an out-of-court settlement or otherwise disappear from the scene without a public resolution-which is why it can be so refreshing when an actual judgement catches my eye on a case I've discussed previously.

The victorious parties on this occasion are Richard Pisoni, Darren Lindsey, and Mark Cameron, formerly of the Illinois State Police Special Weapons and Tactics Unit (SWAT), who alleged that they were the victims of workplace hostility, harassment, and isolation tactics as a result of their age. In 2016, I wrote about the case to illustrate how Summary Judgement can blunt the claims of victims by winnowing down the allegations that can be brought to a final hearing. At that point, two of the plaintiffs alleging retaliation were dismissed from the case and several allegations of breaches of state law were dismissed for lack of evidence. However, the judge ruled that a reasonable factfinder could, based on the evidence then presented, potentially find for the other Plaintiffs on the grounds of age discrimination.

This year, a jury did precisely that, finding that the Illinois State Police had unlawfully discriminated against the three plaintiffs based on their age by creating a hostile work environment. This jury ruling survived a post-trial Motion for a judgement as a matter of law this week, with the Judge again finding that the Plaintiffs had presented enough evidence to reasonably support the jury's conclusion. Assuming that the case is not subject to further appeals, this can only be interpreted as a victory for age discrimination plaintiffs, especially those alleging discrimination based on a hostile work environment. At any rate, it is satisfying to see the case finally reach some level of closure, especially since the allegations date back all the way to 2010.

-Attorney Travis Dunn

Suds and Statutes: The Current State of Craft Beer in Illinois

Friday, August 17th, 2018

In 2013, there were an estimated 2,898 craft breweries operating in the United States. In 2017, that number had soared to 6,266. It's obvious that the craft beer industry means business. Today, odds are that you are, or someone you know is, a craft beer enthusiast.

Illinois is no stranger to craft beer. In 2018, Chicago's own Revolution Brewing cracked the list of the top 50 largest craft brewers in the country. Goose Island Brewery, known for its highly sought-after Bourbon County Brand Stout, opened its first brewpub in Lincoln Park in 1988 and experienced steady growth during craft beers infancy and boom until it was eventually bought by Anheuser-Butch in 2011. As of 2017, Illinois ranks 16th in the country in barrels of craft beer produced per year, enough for every 21-or-over resident to drink 1.3 gallons. It's obvious that we love our craft beer in Illinois, but what if we want to brew it ourselves or patronize one of the many smaller breweries? Here's a quick rundown of some of the laws governing craft beer brewing in Illinois.

For the hobbyists, home brewers can make their own beer in Illinois subject to the following rules: 1) the person who makes the homemade brewed beverages receives no compensation, 2) the homemade brewed beverages are not sold or offered for sale, and 3) the total quantity of homemade brewed beverages made, in a calendar year, does not exceed 100 gallons if the household has only one person 21 years of age or older or 200 gallons if the household has two or more persons 21 years of age or older. Other laws may apply, so please consult the relevant statutes before brewing.

Unfortunately, if you want to try your hand at brewing craft beer for a profit, more rules and regulations will apply than I can reasonably cover here. However, there have been some recent developments in Illinois law relating to craft breweries which are interesting. On August 13, 2018, Governor Rauner signed a bill allowing some smaller scale taprooms to purchase and serve beer produced by outside breweries. Previously, small craft breweries were handcuffed by the restriction that they only sell their own beer on the premises. This new bill also allows small craft breweries to purchase and serve hard cider, further expanding their possible market.

Progress is being made and the future for craft beer in Illinois appears bright. Here's to many more years of growth. Cheers!

- Attorney Ryan Zaborowski

New Laws in Illinois

Friday, August 10th, 2018

This past week two new Illinois laws have taken effect.

One of the laws deals with ride-sharing. The new law in Illinois aims to keep you safe while in a ride-share car. A ride-share car is similar to a taxi but goes under the names of Uber and Lyft. Ride-sharing has become extremely popular in the last couple of years and continues to grow, however, they have been coming under heavy scrutiny. There are multiple ride-share cars available now in the Illinois Valley. The new law that took effect Tuesday is now requiring ride-share drivers to undergo adequate background checks to ensure safety among those who use the service. The law requires that those applying to be ride-share drivers provide their full name and social security number and date of birth. It is kind of surprising to learn that this was not already a requirement. Previously, they were only required to give their address, age, driver's license, motor vehicle registration and insurance. This new regulation comes after an accident that left a 23-year-old Lyft passenger killed in Chicago - her driver was under the influence of a drug. Ride-share companies like Uber say that it was already their standard, but the industry is still evolving and people slip through the cracks. With the new law, ride-sharing companies are now held to the same standard that other licensed transportation services have been held to for years.

The other major law that was signed into effect this past week requires that children need to ride in rear-facing car seats longer. The new Illinois law requires children to remain in rear-facing car seats until they are two-years-old or weigh 40 pounds or over. Medical professionals have said that this new law will better protect your little one. Studies have clearly shown that children, less than 2 years of age are safer when they are in a wreck when they are facing backwards. There is about a 75% less chance of serious injury or death. The American Academy of Pediatrics made the recommendation of rear-facing car seats until the age of 2 or 40 pounds in 2011, so it is finally time that Illinois got on board. The responsibility is on the person transporting the child to make sure that the child is in a proper car seat according to Illinois law. However, parents are also responsible for providing a car seat to anyone who transports their child. On a first offense, violators could face a $75 fine but on a second offense, they are facing up to a $200 fine. But the penalties may be far steeper and extend far beyond financial penalties if a child is hurt or dies while in your vehicle.

-Attorney Kendall Hodges

With apologies to the residents of Montana

Friday, August 3rd, 2018

People often talk about one state or another as having "At-will employment" where employees may be terminated for any reason or no reason at all. In fact, at-will is the default state of employment for private sector jobs in the U.S. The only state which definitely isn't "at-will," at least according to the normal understanding of the term, is Montana, where the default rule is that employees who have worked for their employer for more than six months cannot be terminated without cause. I don't know why Montana alone has tacked so progressive on this, but any workers in Montana who have settled comfortably into their employment can basically ignore everything else in this post.

Of course, most public sector employees and those with strong employment contracts or collective bargaining agreements are protected from being fired without good cause. Many nationwide exceptions to the at-will doctrine have also arisen over time to guard against discrimination. There are Federal rules against firing firing someone due to their race, color, religion, sex, age, disability, or national origin. Illinois goes beyond this to prohibit discrimination on other grounds, like sexual orientation. There are also protections for certain whistleblowers, participants in unions, or those who are seriously ill or caring for sick family members.

So why are there still conversations about particular states and "at-will" employment? To put it simply, many states have created different degrees of other (non-discrimination-based) protections for their workers. So where does Illinois stack up? Generally speaking Illinois may recognize as wrongful other termination which:

Violates public policy (such as firing someone for refusing to break the law, reporting that the employer is violating the law, exercising a statutory right such as a workers compensation claim, or serving the public interest through something like jury duty) or

Violate an implied contract for a term of employment (these can be extremely difficult to prove as they are, by definition, not something which is explicitly laid out in an employment contract).

Some state courts have gone much further than Illinois and held that the employee-employer relationship is subject to an implied covenant of good faith and fair dealing. In these states, employers may not fire employees out of malice or when there is a bad-faith reason for the termination, such as not wanting the employee to get full retirement benefits. One could argue that these states are no longer truly "at-will", even though they still haven't formally stated that good cause is required to terminate an employee.

Of course, much like the messy end of any relationship, each termination is different. The only way to know if your employer has violated the law by terminating you without good cause is to have your case evaluated by an attorney who is familiar with the law in your state. Or to move to Montana.

-Attorney Travis Dunn

Quality of Medical Care in the Age of Yelp

Friday, July 20, 2018

Chances are you've seen at least a handful of doctors in your life. Some you probably liked more than others. If you were unhappy with a particular doctor, would you tell someone? Maybe a friend or family member? What if you were really dissatisfied with your experience and wanted to warn others or simply make your opinion heard - where would you go then? If your answer is Yelp or another online consumer review forum, you may want to be careful. More than ever, doctors and other medical professionals are fighting back against bad reviews and their authors. Some have even resorted to suing their former patients.

One example is a woman in New York who is being sued by her former gynecologist for $1 million for a bad review she posted on Facebook. Another is a cosmetic surgery practice that was awarded $12 million in their defamation suit against a patient who posted a negative public review; although that judgment was overturned on appeal. What most, if not all, of these types of claims have in common is that the doctors sued on the grounds of defamation.

In order for a doctor to succeed on a claim of defamation in this context, he or she has to prove that the patient-reviewer made a false statement about him or her in a public forum that would be considered negligent and that this statement damaged his or her practice. This damage may be in the form of a damaged reputation or loss of business due to the review.

So how do you avoid being sued if you just want to get your opinion out there? The most important consideration is to make sure that what you post is true. Make sure you can back up your stated grievances with proof. Although sometimes it's more prudent to make broader judgements in your online critiques. Instead of going through a list of the specific reasons why you're dissatisfied, in some cases a simple "I had a poor experience" may suffice in getting your point across. Regardless of the context, it's important to keep in mind that anything you post online may be scrutinized later and to act accordingly.

- Attorney Ryan Zaborowski

Illinois Traffic Penalties

Monday, July 16th, 2018

A new study has found that Illinois comes down the hardest on speeders than nearly any other state and has some of the harshest penalties in the nation. However, Illinois' police force does not give out the most speeding tickets - that is left up to the state of Iowa (but beware driving - Illinois is very close to Iowa). Illinois was tied with three other states for eighth-strictest overall and fourth in terms of speeding enforcement, behind only Virginia, Arizona, and New Mexico. An analyst of the study indicated that one ticket in Illinois gets a speeder closer to a license suspension than other states. It has about 45% of how much a speeding ticket counts toward a suspension and most states a ticket is 15% counted towards a suspension. Illinois is high on the list due to the long jail sentences and costly fines for reckless driving. Illinois has some of the highest days in jail at 10 days and 20 for a second and the fines are some of the most expensive in the country as well.

Illinois employs a point system to determine the length of suspension or even revocation for traffic offenses. The point total needed for suspension or revocation changes based on the driver's past offenses.

For a driver without any license suspensions or revocations in the past seven years, the Illinois penalties are as follows:

•  Point totals 0 through 14 result in no penalty;

•  Point totals 15 through 44 result in a two-month suspension;

•  Point totals 45 through 74 result in a three-month suspension;

•  Point totals 75 through 89 result in a six-month suspension;

•  Point totals 90 through 99 result in a nine-month suspension;

•  Point totals 100 through 109 result in a one-year suspension; and

•  Point totals 110 and beyond result in revocation of driving privileges.

For a driver with one license suspension or revocation in the past seven years, the Illinois penalties are as follows:

•  Point totals 0 through 14 result in no penalty;

•  Point totals 15 through 44 result in a four-month suspension;

•  Point totals 45 through 74 result in a six-month suspension;

•  Point totals 75 through 109 result in a one-year suspension; and

•  Point totals 110 and beyond result in revocation of driving privileges.

If you are dealing with traffic offenses in Illinois, it is important to take immediate action. As points add up on your driver's license, the risk of suspension or revocation increases. In such situations, it can be beneficial to retain the services of a skilled Illinois traffic lawyer. Our office is here to help. Appointments may be scheduled through our toll free number at 888-488-4LAW or through our website at https://www.peterferracuti.com

-Attorney Kendall Hodges

The Limits of Liability Protection

Friday, July 6th, 2018

Much earlier this year (it was actually prior to the website update, so whether it is easily assessible at this point is an open question), I wrote on this blog about the Illinois Baseball Facility Liability Act (IBFLA), an Illinois state law which provides ballparks (and the teams and organizations which run them) limited immunity from lawsuits regarding injuries sustained by spectators except in cases where the venues engaged in willfully or wantonly dangerous conduct or their netting was defective or insufficient. The case discussed in that blog, brought by a man blinded by a foul ball at Wrigley field, is still working its way through the courts as John Loos v. Major League Baseball, the Cubs themselves having been dismissed from the claim a couple of months ago. Similar laws exist for other sports, and I promised in January that if an interesting hockey injury claim came up during the steamy days of summer, I would dutifully write a follow-up.

While I'm happy to report that icehouses have apparently remained safe for spectators, I did see note of sports litigation that provides an interesting contrast to the Loos matter: Hoffman v. Borough of Sewickley, out of a circuit court in the state of Pennsylvania.

Hoffman concerns the tragic circumstance of Zachary Hoffman, a Little League player who was struck by a baseball which flew through a gap in a fence and struck him while he was sitting in a dugout. He suffered a brain bleed and a severe traumatic brain injury as a result, conditions which will affect him for the rest of his life. Attorneys for Zachary alleged that the dugout was located too close to the backstop of the field, that a fence by the dugout failed to provide adequate protection, and that a similar incident the previous season should have provided notice of the danger posed by the setup. Earlier this year, a jury awarded him $1.7 million dollars in damages.

Some key points here. Obviously, Zachary was not a spectator at all, but a player, and therefore spectator injury liability law isn't a defense. Second, the plaintiff in this case was a child, and that age group is simply going to have more wild hits than older players, something that must be taken into account when constructing fields and any safety measures such as fences. Little League organizations have guidelines for these sorts of things, and the field in this case didn't follow them. Finally, this sort of clear structural danger within the field alleged are exactly sorts of things that the Illinois law has exceptions for-if the fencing had been sufficient to protect the dugout (or viewers in the case of IBFLA), then Zachary would not have been injured. The dimensions of the field and the setup of the dugout in the Pennsylvania case was simply not safe for players, and a terrible injury was the result.

-Attorney Travis Dunn

How Safe Are Your Prescription Medications?

Monday, June 18th, 2018

You see them all the time; television and billboard advertisements for class action lawsuits representing individuals harmed by prescription drugs. If you're lucky, you've managed to avoid being one of those harmed individuals. But what about the prescription medications you're currently on? Are those safe? How do you know?

In the United States, the FDA (Food & Drug Administration) is the final arbiter of a drug's efficacy and safety prior to its release on the market. The FDA claims that its "Drug Review" process includes research of clinical data and safety inspections of study sites. What they leave out is that sometimes these clinical studies take place in foreign countries. Many studies are done in China, for example, due to cost effectiveness and a potentially large pool of willing subjects. If you found out that the only clinical studies done for the medication that you take every day were performed in China, would you still feel safe taking that medication?

Apart from outsourcing important clinical trials for new medications to foreign countries, danger also lurks in the FDA's inside approval process. In 2004, a prominent scientist with the FDA's Office of Drug Safety testified before Congress that the FDA's drug approval policies "were insufficient to protect the public from drugs which carry unacceptable risks[.]" He went on to say that the FDA is "inherently biased in favor of the pharmaceutical industry. It views [the] industry as its client, whose interests it must represent and advance. It views its primary mission as approving as many drugs [as] it can, regardless of whether the drugs are safe or needed."

So how do you know which medications are safe to take? Start by talking with your doctor. If your doctor prescribes a medication, feel free to ask questions such as... 1) How long has the medication been on the market? 2) Are there alternative medications? 3) What are the possible side effects? Although it's impossible to protect yourself from every possibility when it comes to medication side effects, being informed about what you're taking will go a long way in avoiding possible negative outcomes.

-Attorney Ryan Zaborowski

Social Media and Your Case

Friday, June 15th, 2018

This week attorney Alexis Ferracuti handed us associates the latest Illinois Bar Journal and circled the article "Sleuthing on the 'Net." This article starts a discussion of how social media has changed the way attorneys handle their cases. In my years of being a practicing attorney, I have seen first hand how social media can impact a case which is why I have decided to blog about it this week.

Years ago, an attorney who wanted to find information on a case either about a witness, a litigant or a juror, they would have had to search public records. These public records would range from court proceedings, driving/police records, marriage and divorce documents and property ownership. If they wanted to find out more information than that, they would have to hire a private investigator. But thanks to the internet and social media, the investigative avenues have blown wide open. Between Facebook, Instagram, LinkedIn, Twitter, Snapchat, Google search (to name a few), there are many different avenues of free investigative research. An attorney nowadays simply has to type the name of a witness, litigant, or juror in the Google search bar and there is a plethora of information on them.

Okay so great, someone can Google my name and figure out some information on me, but how does it impact my case? Specializing in worker's compensation and personal injury, we see a lot of clients who have been injured. This injury results in a doctor informing our client that they have certain restrictions albeit they can't lift more than a certain weight, or they can't use the injured body part. This results in our client not being able to engage in certain activities i.e. can't fish anymore, can't garden, can't go hunting, can't ride their motorcycle. If this is the case, if our client is given restrictions -they should abide by those restrictions. Specifically, in worker's compensation, defense attorneys always send out private investigators to watch our clients to see if they partake in the activity. We used to only warn clients of these private investigators, but now the times have changed. Defense attorneys in both worker's compensation now use social media such as Facebook, to see if our client is partaking in an activity that they are unable to engage in. More and more people are providing the surveillance that a private investigator used to provide. They are posting pictures and videos of themselves on social media doing what they said they were unable to do. It happens all to frequently that we are in a deposition and the opposing attorney brings out a Facebook page which has pictures of our client doing what they said they could not do.

As a society, we need to be aware that everything we post online is available for people to see and can have implications. The information we post online can be used against us in discovery and in trial.

-Attorney Kendall Hodges

At what price?

Monday, June 11th, 2018

One of the most complicated and contentious aspects of any litigation is determining what a claim is worth. The importance of that number is obvious: often, the sum total of all the circumstances, the law, the history, the hope, and the heartbreak is encapsulated in a single, final monetary value. It is no surprise that the question of compensation is often an important part of an injured person's interaction with the legal system.

Once things such as medical expenses and lost wages are accounted for, the determination of further financial recovery is a complex process. An attorney must draw on their experience as well as a detailed understanding of the facts to estimate the value of a case, and occasionally even the best lawyer is surprised by the outcome of a hearing or trial. This uncertainty is what makes the negotiation of a settlement one of the most difficult parts of a case.

In Illinois Worker's Compensation cases, the closest thing to traditional court awards are Permanent Partial Disability (PPD) payments. They reflect the acknowledgment of the permanent effect that an injury has on a worker's life. PPD rates for different parts of the body are laid out in the statute itself: a somewhat ghoulish list of limbs and their assigned value, subject to how much function is lost. In stark contrast to the kaleidoscope of factors which might affect personal injury awards, the statute lays out the factors for PPD in a stark fashion:

impairment rating; occupation; age; future earning capacity; and medical record of disability.

Of course, the relative importance of these factors leaves much room for disagreement.

It is challenging to get past that final number. Is that really what all the pain and stress and life interruption is worth?

No, certainly not. Financial recompense is a poor balm for the human cost of being injured in the course of your employment. It is, however, a small comfort in the shadow of difficult times. The workers of Illinois are entitled to such comfort, and we use every tool provided to ensure that they get it.

-Attorney Travis Dunn

We all have different paths

Tuesday, June 5th, 2018

Being an attorney is the most rewarding thing I've ever done. College, law school, and the exam to become a lawyer were worth it. Every single second of hard work that brought me here was worth it. I get to help people get their lives back. I get to help people find justice. What an incredible thing to say.

But honestly- college isn't for everyone. Law school isn't for everyone. I know a few lawyers who don't love what they do. When I see someone who hates their job, or does it for the wrong reasons, I always stop and wonder whether they started doing it because they were told that was the path to follow. Many years ago, someone decided everyone needed college. Everyone needed some sort of college degree. Going into the trades right out of high school or working on a farm immediately after high school graduation became frowned upon, and I just can't figure out how that gets us ahead as members of a society of people who are all genetically and socially different in almost every way.

If you handed me a tool box and told me to go fix a door, I could probably figure it out after an hour or two- maybe three if I'm being honest about my mechanical abilities. If you asked me to try to build a house or assemble an engine for a piece of machinery, my first instinct would be to read twenty books and then try to figure it out and compare it to the diagrams in the books. Problem solving and reasoning runs in my family, but as my father once said, "if they had made me a plumber, I'd be useless. It's lucky I figured out how to get into law school." Trust me, we don't have time for people like me to be spending a year just putting together a plan to try and complete a project. We need minds that are mechanically inclined and hands that understand the work they are doing without books and manuals to do that work.

We're all different and we're all meant for different things. I'm proud to come from a family of farmers, ranchers, salesmen and women, nurses, teachers, butchers, school bus drivers, mechanics, factory workers, construction workers, union members, military veterans, and lawyers. Instead of forcing kids to rack up college debt, let's encourage some of them who are clearly inclined to do so to enter the trades and train through the unions or find fulfilling work in an industry that they care about right out of high school. Let them prosper and decide for themselves rather than pushing them into a career path they don't want. I dread the day that someone might tell me there is no laborer available to help me build a home because the trades are going extinct. Help me bring them back.

-Attorney Alexis Ferracuti


Latest in Illinois Gun Rights

Friday, May 25th, 2018

Gun rights have been a hot topic in the news for over the past year. Unfortunately, it is a topic of hot debate because of the number of mass shootings that have occurred across the United States. Just last week it was huge in the news for Illinois as a shooter was apprehended in Dixon, Illinois. Even more recently, the Illinois House approved a plan allowing six-moth suspension of gun rights for people showing "red flags."

Illinois judges would have discretion to temporarily suspend the gun rights of someone who displays violent warning signs. However, this meaning that family members, housemates or police must first seek court intervention. The proponents of the bill argue that the legislation is a means to prevent mass shootings and other common gun-related deaths. Opponents, however, are questioning whether it is necessary and whether it would interfere with law-abiding gun owners' civil liberties.

Representatives in support of the bill said that the measure would create a way to prevent gun violence before it occurs by getting the guns from someone who raises "red flags." Some of these "red flags" that would be considered is posts on social media or threatening remarks. In addition, families and friends of people who show signs of mental illness or distress are often left feeling powerless and this would put them in a situation where they could enable the person to get help without feeling as if the person would get arrested. Proponents are pleading not to look at this bill as a gun bill but look at what the bills does not what you think it is going to do.

This measure comes as state lawmakers are considering several other gun control initiatives to stem violence in the state. Earlier that day, lawmakers also considered several of Governor Bruce Rauner's safety proposals such as creating a 72-hour "cooling-off" period for purchasing an assault weapon which already applies to handguns. Also, the Governor proposed bringing back the death penalty for people who kill more than one person or kill police officers. Governor Rauner also wants to create new ways for local schools to get more armed security and mental health professionals on staff. This definitely hits home after the events in Dixon, Illinois last week where a security guard took down a gunman that was present at the high school. It will be interesting to see what changes are made.

-Attorney Kendall Hodges


Creation, Destruction, and Retaliatory Discharge

Friday, May 18, 2018

The Law changes. Laws themselves are added and removed by the legislature, "schoolhouse rock" style, of course. Regulations are implemented. Courts interpret and reinterpret those laws and regulation, adding their own explicit and implicit threads to the tapestry of The Law. Judicial decisions are handed down that alter the landscape of legal rights and responsibilities.

And sometimes, unfortunately, they don't.

Such is the case of Edward Nance's case against Comcast Business Communications, Inc. in the Eastern Division of the Federal District Court for the Northern District of Illinois, which came to a regrettable end on May 8th, 2018. Mr. Nance alleged that Comcast terminated his employment as a result of his attempts to collect disability payments during a period of injury in 2016 and 2017. Notably, it seems that this wasn't a worker's compensation injury-Edward hurt his shoulder while off-duty and required a significant period off work during which he repeatedly attempted to collect on the short-term disability benefits to which he was contractually entitled.

Illinois is an at-will employment state, but the courts have carved out an exception when retaliatory terminations violate a clear mandate of public policy. Edward's initial complaint alleged that he was wrongfully discharged for one of two reasons: either because of a policy against retaliating against employees trying to assert contractual disability benefits; or because of a policy against retaliating against employees under doctor's orders not to return to work.

The problem with both of Mr. Nance's claims is that Illinois courts have only recognized two very specific public policy mandates which are clear enough and significant enough to override that underlying principle of at-will employment (outside of the existing laws about civil rights discrimination and harassment, etc.): retaliating based on the exercise of rights under the Illinois Worker's Compensation Act; and retaliation for reporting illegal or improper conduct or "whistleblowing." The Federal District court ruling on Mr. Nance's claims found that he had not brought enough to the table to justify the creation of a third grounds for retaliatory discharge, and thus dismissed his claim.

Now this was a Federal court, so they are explicitly more conservative against creating rights stemming from Illinois Law. It's perfectly possible that, someday soon, the Illinois Supreme Court will get the right case for the creation of another type of retaliatory discharge. It could very well come from you and us. It just didn't come from Edward Nance.

-Attorney Travis J. Dunn

WORKERS' COMPENSATION ACT

Friday, May 4th, 2018

The Workers' Compensation Act is controlled by your legislators. The people you elect into office should have a firm grasp on the issues that affect your day to day life. That includes workers compensation. Injuries at work happen unexpectedly daily. No one goes into their daily life expecting to only receive 2/3 of their wage - weekly in the case of injury.

Your legislators do not have a firm grasp of the intricacies of the work comp system in Illinois. Unfortunately, many of our legislators are under the impression that further cutting work comp settlements and benefits for Petitioners is in the best interest of the State of Illinois. The insurance companies, on the other hand, continue to increase premiums and decrease settlements to Petitioner. It should be the people of Illinois who benefit from the laws created to govern them - not big business.

Tell your legislators to vote to cut insurance company premiums for work comp and vote to uphold work comp Petitioners' rights.

-Attorney Alexis P. Ferracuti

DRAMSHOP ACT: RESPONSIBILITY FROM BOTH SIDES OF THE BAR

Friday, April 27th, 2018

For all the sturm und drang ginned up at the federal Supreme Court this term regarding topics like immigration and freedom of religion, there is a another case, straight out of South Dakota, that may be the most broadly impactful of all: South Dakota v. Wayfair, Inc. This case challenges the decades-old (well, since the 1992 Supreme Court decision Quill Corp. v. North Dakota, anyway) precedent that a state could not collect sales tax from businesses without some sort of physical presence or legal nexus in the state. Attempting to do better than its more northerly cousin, South Dakota argues that the explosion of internet commerce has put local sales-taxed businesses at a competitive disadvantage compared to online retailers. On top of that, the Quill decision deprives the 10,000 municipal and state entities around the country the ability to efficiently tax their resident's purchases and enforce their tax laws.

There is an important distinction here between passing sales tax (and things that function similarly, like registrations and filing fees) and passing laws that force businesses to enforce them. In Illinois you are required to pay a sales tax on everything you buy online: if the business doesn't collect the tax, it is the responsibility of the purchaser to report the sale and pay the tax themselves as part of their income tax filing. The Illinois Department of Revenue even provides a helpful form specifically for this purpose: Form ST-44, Illinois Use Tax Return.

If all of this comes as news to you, don't feel too bad. The abysmal compliance rate on stuff like this is why states and local governments want to collect the taxes directly from the businesses in the first place. The internet businesses, on the other hand, sensibly feel that it isn't their fault that people don't pay their taxes, and more seriously that small businesses would suffer a crushing regulatory burden if they had to collect every sales tax from all those 10,000 separate government schemes. Complicating things somewhat, larger businesses like Amazon and have been collecting sales taxes in Illinois since 2015, when a law went into effect expanding the nexus requirement to include certain types of agreements with agents operating in Illinois (Amazon itself also built its first distribution center in Illinois that year, so they couldn't exactly argue that they had no "physical presence" in the state).

At the oral argument for South Dakota v. Wayfair, Inc. on April 17th, the Justices as usual didn't tip their hand too far in one direction or another. There was perhaps a surprising amount of musing over whether it would be better to have Congress weigh in on the whole thing rather than have the Supreme Court make a constitutional judgement. At any rate, there should be a decision out by the end of the term. Until then, hold on to your Form St-44s.

-Attorney Travis J. Dunn


PREMISES LIABILITY
Friday, April 13th, 2018

At first blush it would appear that liability of a property owner for injuries caused when someone trips or slips and fall on their property and sustains injuries as a result. However, in Illinois the case law recognizes a number of defenses that renders the law in this area more complicated than you might imagine.

There are rules that say even if there is a defect, if it is not large enough the property owner may not be responsible for the injuries she caused. This is known as the De minimis rule.

Strangely, there is another rule that states if the defect is large it is obvious and there is no liability for injuries causes by obvious defects as the law requires a person to take care to avoid such defects.

There is no bright line as to what is de minimis and what is obvious, as it all depends on the facts. There is no one size fits all rule in these cases.

What is clear is that it takes an experienced litigator to navigate the mine filled waters of premises liability law.

Your author recently prevailed when a property owner who had neglected to maintain its property and allowed its walkway to deteriorate thereby causing a tripping hazard.

The defendant sought to have the court throw out the case claiming the plaintiff should have avoided the defect that defendant created.

After presenting a lawyerly argument, plaintiff convinced the court that defendant should be held to account for its actions/inactions and the motion was denied.

If you have been injured as a result of a slip or trip or otherwise on someone else's property you may be entitled to compensation, and with the help of an experienced attorney, you can seek damages for your injuries. If your find yourself in such a situation, give us a call. We offer free initial consultations, and we would be happy to set up an appointment to discuss the matter with you. Appointments may be scheduled through our toll free number at 888-488-4LAW or via email at [email protected].

-Dennis E. Both, attorney


BILL OF RIGHTS
Friday, March 16th, 2018

When the Constitution of the United States was first ratified in 1788, it did not contain what we now know as the Bill of Rights.

Even back then there were bitter political disputes among elected representatives, and one of those disputes was the debate over whether there should be a specific bill of rights which would act as a limit on the power of the government.

James Madison, who authored the Bill of rights advocated express limitations of government power, and fortunately for all of us the Madison view won out and of the 17 amendments that Madison proposed 10 were ratified by the states.

Those 10 amendments came to be known as the Bill of Rights.

It appears from recent media reports that some have forgotten, the purpose of the Bill of Rights. Some in the media report that our rights as citizens of the United States are given to us by the government and suggest that what the government has given it can take away.

Whether they did not pay attention in class, or were absent form civics class that day, I do not know, but such a suggestion is clearly erroneous.

The point of the Bill of Rights is to enunciate rights that we as citizens have naturally.

The preamble to the Constitution begins;

We the People of the United States...do ordain and establish this Constitution for the United States...

Clearly the power given to the government came from the people. What was not given to the government was reserved to the people, and thanks to James Madison, some of those rights that we are born with as citizens are inalienable.


Where ever you come down on the current political debates remember rights are given that name because they cannot be taken or altered by the political expediencies of the day.

Our rights are permanent, consistent and inviolate, no matter who is in office or what the political football of the day is.

If you believe the government, whether it be federal state or local, has infringed on your rights, the attorneys at our firm offer free initial consultations, and we would be happy to set up an appointment to discuss the matter with you. Appointments may be scheduled through our toll free number at 888-488-4LAW or via email.

- Dennis Both, Attorney


Pre-existing Conditions Under Illinois Workers' Compensation
Friday, March 9th, 2018

Pre-existing medical conditions can complicate claims under Illinois Workers' Compensation, but they do not prevent claims. Many of us have had non-work-related injuries or have conditions which can cause us weakness or pain over time. Illinois Workers' Compensation does not prevent someone with these conditions from collecting benefits under the Act.

The types of injuries that are covered by Illinois workers' compensation are those that "arise out of and in the course of employment." This includes the aggravation of a pre-existing medical condition. The policy behind holding an employer liable for injured employees is that an employer takes an employee as it finds them. If the employee had a pre-existing condition, they are not barred from compensation if their employment caused the aggravation of the condition. For injuries that occur through the aggravation of a pre-existing condition, the Courts typically required that the aggravation itself is work related - which means that the aggravating event can be linked to a specific time and cause that is related to the employee's job. This is crucial for pre-existing conditions to be compensable under the Act.

In addressing these types of cases, we ask a doctor for their opinion on the relationship between an accident and a condition. It is pertinent that you inform your doctor of (1) where you work, (2) your job position, (3) your job duties, (4) what you were doing when the accident occurred, and (5) the work accident/how the work accident happened. This is critical in establishing your claim for workers' compensation and aggravating a pre-existing condition. The doctor needs all the information, so he can give a valid opinion on your injury. We ask the doctor whether the doctor could or might have been caused, aggravated or accelerated by the work-related injury. If the accident made the condition worse or brought on new symptoms, there is a valid workers' compensation claim. However, each claim depends on its own set of facts and circumstances.

If a work accident worsens your pre-existing condition or if you aggravate a previous condition while performing your job by repetitive work, you may be entitled to workers' compensation benefits. If you have any questions, our firm offers free initial consultations, and we'd be happy to set up an appointment through our toll free number at 888-488-4LAW or via email.

- Kendall E. Hodges, Attorney


Even in Civil Court, Crime doesn't Pay
Monday, March 5th, 2018

A good deal of civil practice involves accidents of one sort or another. Cars collisions, work injuries, slips and falls. However, in many cases injuries, whether physical or economic, may stem from an action or omission of more purposeful or nefarious nature. This might take things out of the realm of negligence and into allegations of what is called "willful and wanton" conduct. It might even mean that the conduct that caused the injury was a criminal violation.

Such is the case in the recently decided Enadeghe v. Dahms out of the First Appellate Distinct in Cook County. The underlying incident is an odd case of reverse road rage: when a taxi blocked a pedestrian crosswalk in downtown Chicago, Dahms reacted by literally shattering its windshield with his briefcase. When the driver, Enadeghe, parked the taxi and confronted Dahms about the damage, there was a scuffle in which Enadeghe was knocked unconscious and required surgery to repair his face injuries. Dahms was convicted of aggravated battery after a jury trial, and repeated appeals failed to do anything to lessen that conviction, which resulted in 18 months' probation.

Obviously Dahms did everything he could to fight the conviction, but a jury still found that beyond reasonable doubt he had "knowingly, and without legal justification, caused bodily harm to Enadeghe or made physical contact of an insulting or provoking nature with him by beating plaintiff with a briefcase on Clinton Street." Enadeghe v. Dahms, 2017 IL App (1st) 162170. As one might expect, Enadeghe also felt that Dahms had some personal responsibility for the damage, and so he failed a civil suit in which he ultimately alleged that Dahms had engaged in negligence and willful and wanton misconduct in the incident. At the trial, there was sharp disagreement between the parties over the use of Dahms criminal conviction. Ultimately, the trial court concluded that the aggravated battery conviction fulfilled the standards for willful and wanton misconduct under the law, leaving the jury only to decide the extent of causation of the injury and the damages stemming from it.Dahms appealed that decision on a number of grounds, none of which proved persuasive to the appellate court. The court found that the elements of the criminal battery charge did suffice to establish that Dahms had engaged in willful and wanton misconduct and was therefore liable for that in civil court, too. It further found that, given that the trials on both the civil and the criminal side were substantially similar, that Dahms could not argue that the decision prevented him from presenting certain defenses in the civil trial that would have changed the outcome. Any defenses should have been used in the criminal trial if he had them to use.The takeaway from the decision is an important one: if you are a victim of a crime, it is important to understand your rights to take civil action against person who wronged you. If you are in such a situation, the Law Offices of Peter F. Ferracuti would be happy to set up an appointment for a free consultation through our toll-free number at 888-488-4LAW or via email.

- Travis J. Dunn, Attorney