Scott's Law

Friday, April 19, 2019

If you live in Illinois, you have heard of the recent Illinois State Police officers being struck and killed on the side of the road while conducting stops. Already in 2019, 16 Illinois State Police troopers have been struck by vehicles or died on state roads, doubling the total from all of last year in just four months. In response, state officials are hoping to better educate young drivers about Illinois' "move over" law that aims to protect emergency responders.

Illinois' "move over" law is called Scott's Law. The law is named after Lt. Scott Gillen, a 14-year veteran of the Chicago Fire Department who was struck and killed by an intoxicated driver while assisting at a crash on the Dan Ryan Expressway in December 2000. He was 37 years old. After his death, Gillen's family pushed for the passage of Scott's Law to help protect emergency responders on accident scenes. Scott's Law mandates that drivers, upon approaching any stationary vehicle with flashing emergency lights, must reduce their speed, proceed with caution and change lanes if possible.

State officials along with the State Police and Illinois State Board of Education are making attempts to educate drivers about the "move over" law. Last week, the Illinois Senate unanimously agreed to add two reminders about Scott's Law to the state's drive pool. State Sen. Chapin Rose wants to send drivers a reminder about the law to move over for police officers with their lice plate renewal postcard. He also wants the Illinois Secretary of State to include a question about the law on the state's driver's test.

In addition, the State Police and Illinois State Board of Education have collaborated on a new flyer that is being distributed to driver education programs in Illinois to help spread awareness of Scott's Law.

Sources: WTTW, Illinois News Network

- Attorney Kendall Hodges

Arbitration: Correct Arbiters or Contractual Arbitrariness?

Friday, April 12, 2019

Since it's passage in 2008, the Biometric Information Privacy Act has regulated the collection, use, safeguarding handling, storage, retention and destruction of biometric data in the state of Illinois; "Biometric data" for the purpose of the act including things such as retina and iris scans, fingerprints, voiceprints and face scans. The Act has some fairly high potential penalties for violators, as the law sets out penalties of $1,000.00-5,000.00 per violation. It's somewhat of an open question as to what, exactly, constitutes separate violations, and as a result, business facing suits based on the law can get pretty desperate to get rid of them.

Which brings us to Liu v. Four Seasons Hotel, Ltd, which is a class action filed by former employees of the hotel chain alleging that the companies' management of their fingerprint-based time clock system failed to comply with the law in several respects, including failing to fully inform the employees of the purpose and length of tie of storage of the data, failing to inform them that the data was shared with third-party vendors, and failed to actually properly destroy the data. Four Seasons tried to get the case thrown out of court and into arbitration, but the Federal First District Appellate in Illinois affirmed a stop to that on Tuesday, ruling that the case could proceed in civil court.

The dispute stemmed from the employment agreement that the employees signed with Four Seasons at the beginning of their employment, an agreement which included an agreement that employment disputes would be ultimately resolved in binding arbitration rather than civil court in a variety of circumstances, most pertinently for this case in situation here the disputes arising out of "wage or hour violation." While it is true that courts favor the enforceability of arbitration clauses, and in fact recent decisions even tends allow arbitration over the scope of arbitration clauses, courts also favor enforcing the clear language of contracts. Four Seasons argued that, since the fingerprinting was solely used for tracking wages and time, then the dispute falls under the arbitration clause concerning wages and time.

The court made short work of this argument, pointing out that the employees weren't claiming that there was an issue with their wages or timekeeping, but rather that Four Seasons had violated a widely-applicable privacy rights statute. Succinctly, it stated that: "Simply because an employer opts to use biometric data, like fingerprints, for timekeeping purposes does not transform a complaint into a wages or hours claim." Liu v. Four Seasons Hotel Ltd., 2019 IL App (1st) 182645. This decision correctly affirms that even if an employee signs an arbitration agreement, such agreements cannot be used to completely cut off plaintiffs from seeking relief in the courts.

- Attorney Travis Dunn

A Legal Leg Up for Underdogs

Tuesday, March 26th, 2019

In 2015, Chicago joined a growing number of cities around the country when it made the move to ban pet stores from selling puppies sourced from puppy mills. Instead of allowing pet stores to sell puppies born and raised in large scale breeding operations which are often indifferent the living conditions of the mother dogs, the law forces Chicago pet stores that wish to sell puppies to obtain them from shelters and reputable rescue organizations. The law, like those similarly enacted in other areas, seeks to help decrease the number of dogs euthanized in pounds around the city every year and to help weaken the very historically profitable puppy mill industry.

Since the law was put in place, however, some individuals have sought to circumvent its restrictions and pass off puppy mill puppies as "rescues." Iowa Attorney General Tom Miller recently filed suit against an organization based in Iowa, alleging that the organization created a subsidiary "rescue" organization which provides puppies to pet stores in California and Chicago which very likely come from puppy mills. The complaint alleges consumer fraud as the cause of action and asks the court to shut down the sham rescue organization. Along with this, the attorney general also asked the court to temporarily prohibit the parent organization from transferring animals as part of any charitable activity.

The action of selling puppy mill puppies as "rescues" has been described in this litigation as "puppy laundering." This term may sound rather innocuous, and maybe even a little funny, but is said to encompass the fraudulent sale of hundreds of puppies per year. To back up its claims, the attorney general points to various pieces of evidence which suggest that the puppies being sold as rescues are really purebreds and designer mixes born in detestable conditions on puppy mills in Iowa. Among the evidence presented are the facts that the "rescue" puppies are transported alongside, fed at the same time with, and examined by the same veterinarians as those puppies bred specifically for sale.

Certain Chicago city officials are currently working to raise awareness of these issues and close the "loophole" that allows these practices. In the meantime, as one alderman put it, "people are manipulating rescue laws in order to make a profit." So, if you live in the Chicagoland area and have qualms about the living conditions from which your prospective new pet store puppy sprang, it might pay to ask detailed questions about the puppy’s origins. Or, better yet, research reputable rescue organizations near you to find your new four-legged friend. They are typically not-for-profit and overflowing with great animals looking for homes.

Sources: Chicago Tribune; NBC Chicago

-Attorney Ryan Zaborowski

Rejected students sue for return of application fees against universities linked to admissions scandal

Friday, March 15th, 2019

A group of students and parents have filed a federal lawsuit seeking class-action status against the University of Southern California, UCLA, Georgetown, Stanford, University of San Diego, University of Texas at Austin, Wake Forest and Yale – colleges named in this week’s admissions scandal, stating their admissions process was "warped and rigged by fraud."

Prosecutors revealed Tuesday that 50 people, including 33 parents and number of a college coaches, face charges in carrying out a scheme in which wealthy people used their money to fraud the admissions system at some of the nation’s most elite universities. As a result, the Plaintiffs allege in part negligence, unfair competition and violations of consumer law, according to an amended lawsuit that was filed on Thursday in US District Court for the North District of California.

The lawsuit names Stanford University, USC, UCLA, University of San Diego, the University of Texas at Austin and Wake Forest, Yale and Georgetown universities as defendants. The students and parents in the lawsuit said they spent money to apply to schools named in the college admissions scandal and attorneys say they wouldn’t have applied had they known about the alleged scheme. The lawsuit states "had Plaintiffs known that the system was warped and rigged by fraud, they would not have spent the money to apply to the school, they also did not receive what they paid for – a fair admissions consideration process." The lawsuit asks for compensatory and punitive damages, restitution and other relief deemed proper by court.

"The students who filed the complaint didn’t receive what they paid for – to participate in an application process free of fraud," said David Cialkowski, an attorney for the students. "It’s a straightforward claim and a simple remedy. The students want their money back. They request that anyone who paid an application fee to any of the eight named universities but was denied admission gets their application fee returned."

One of the plaintiffs, Lauren Fiedlak, got a 34 on her ACT and a 4.0 grade point average, yet she was denied admission at the University of California at Los Angeles and the University of Southern California, according to the suit. She had an emotional breakdown requiring hospitalization because of the rejections, the suit said.

This case – the college admissions scandal or as it was named in the FBI investigation Operation Varsity Blues – has been a hot topic all week. It will be interesting to see how it all unfolds.

Sources: CNN; ABA Journal

-Attorney Kendall Hodges

Defining Disability

Monday, March 4th, 2019

From the "How is this still an open question" file comes the case of Richardson v. Chicago Transit Authority, 17-3058 and 18-2199 (7th Circuit). This case, currently awaiting decision from the appeal court, asks whether or not obesity can qualify as a disability under the Americans with Disabilities Act and its amendments.

The plaintiff, a bus driver for the CTA, alleges that he was terminated as a result of his obesity after coming back to work from a medical absence and being subjected to a "safety assessment" that non-obese employees were not required to pass. The facts, while not entirely agreed upon, are straightforward in that the CTA doesn’t really deny that he was referred to the assessment as a result of his weight, and that his weight was a factor in their failing him, leading to his inability to continue driving.

The cause of Richardson’s current legal dispute is that the current accepted standard (where it has been addressed by circuit courts, anyway) for an obesity-connected disability requires an underlying condition causing the disability. That is, if you have an underlying physiological disorder causing the obesity itself, then it qualifies as a disability. If the obesity cannot be connected to a preexisting disorder, then the employee is not protected. The district court in this case agreed with that precedent. Richardson, appealing that decision, is arguing that obesity in and of itself qualifies as a possible grounds for discrimination on the basis of physical impairment.

On the other hand, Richardson has the federal Equal Employment Opportunity Commission, the agency body which actually enforces the ADA, on his side, as well as a number of lower district court decisions around the country. In addition, a number of entities, including the AARP and various medical advocacy organizations, have filed "friend of the court" briefs with the 7th circuit in this case urging the court to consider new medical evidence in making their decision.

Obviously, this is an important clarification for the court to make. If it finds for Richardson it would make the seventh circuit the first court to rule that weight itself can qualify as a disability entitled to ADA protections, and would effectively expand those protections to a great number of workers. It would also set up a rather significant disagreement over the interpretation of the law between the seventh circuit and several other circuits, potentially setting up a Supreme Court challenge down the line.

Attorney Travis Dunn

Limitations in Defective Military Equipment Litigation

Monday, February 19th, 2019

In Illinois, a veteran recently filed suit against 3M for damages related to his hearing loss and tinnitus after using the company’s "Combat Arms" earplugs during explosives/firearms training and combat. The veteran, an army medic, alleges that the company knew that inserting the earplugs deeper into the ear could help them work properly, but that the company failed to notify users of this. Far from an isolated instance of litigation, 3M is currently embroiled in lawsuits over the allegedly shoddy earplugs all over the country. Among those recently publicized, a retired Marine captain filed suit in Philadelphia alleging fraudulent misrepresentation and negligence. Similar suits around the country focus on the product’s inability to form a tight seal in the ear, allowing loud and dangerous noise to filter in without the wearer’s knowledge.

These facts constitute a relatively unique pattern, as far as torts go. Of particular interest is the practicality of bringing such a suit against a company that supplies and/or manufacturers goods for the U.S. military. How does this affect liability, if at all? It turns out that the Supreme Court of the United States addressed this issue in 1988 in Boyle v. United Technologies Corporation and held that, under certain circumstances, a government contractor may avoid liability for defective military equipment under state law. This may occur when the facts of the case meet three requirements: 1) the United States approved reasonably precise specifications for the equipment, 2) the equipment conformed to those specifications and 3) the supplier warned the United States about dangers in the use of the equipment that were known to the supplier but not to the United States.

The Court based its holding, in part, on the rationale that a state law which holds government contractors liable for design defects in military equipment may present a significant conflict with federal policy and this conflict would be sufficient to require its displacement. This speaks to the area of federal preemption of state law in general, a doctrine which rears its head in many areas of law. Stated succinctly, and addressed by the Boyle Court, where federal interest requires uniform rule and the entire body of state law applicable to such area conflicts, it is replaced by federal rules. This defense for government contractors may remove the danger of liability under state law, but it does not definitively preclude liability. Given these limitations in prosecution, it will be interesting to see how the litigants fare regarding the defective earplugs.

Attorney Ryan Zaborowski

Are you liable for injuries caused by snow and ice on your property?

Saturday, February 9th, 2019

The Midwest winter has really stepped it up a notch this January and now going in to February. We have had all types of weather this past month– ice, snow, -52 degrees, 50-degree days and now rain. It is hard to keep up with what kind of weather we will have next, but it is important to keep up with shoveling and salting your sidewalk to make sure you don’t fall into a lawsuit. Depending on the circumstances, you could be held liable if someone slips and falls on snow or ice in front of your home or business.

You could be held liable is if ice developed as a result of the diversion of water (e.g., a downspout that sends water onto the sidewalk), then you could be held liable because you created a hazard. However, natural accumulations of snow and ice generally do not create a liability for a home or business owner. Local ordinances may create duties on property owners to shovel and treat icy conditions. These local ordinances, if not followed, can result in liability for injuries from slip and falls.

After a storm, home and business owners are allowed a reasonable time to remove ice. Therefore, if someone falls on ice during the storm or in the hours immediately following the storm (especially if the hours were overnight or when you would not normally maintain the property), it is less likely that the property owner (or tenant) will be held liable. However, if sidewalks and parking lots are left untouched for an unreasonable period of time after the storm, the likelihood of liability increases, even if the ice and snow occurred naturally.

Since ice is very transient, if someone has fallen on your property, it is a good idea to photograph or video the condition of the property – especially if there was no ice or if the ice was open and obvious. This includes both the area of the fall and the overall condition of the property. If the sidewalk is clearly covered in ice and someone decides to walk across it anyways, the injured party is likely responsible for any injury sustained. This is especially true is alternate ways of walking were available. Everyone has a duty to avoid open and obvious hazards and property owners are not liable for injuries occurring as a result of assuming risks.

Whether a property owner is liable depends on the circumstances surrounding the icy/snow conditions. However, it is always a good idea to shovel and salt your property as soon as it is possible for your own safety and the safety of those around you.

If you find yourself in a position where someone has fallen on your property or you have fallen on someone’s property, 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 Kendall Hodges

"The hidden hazards of a simple claim"

Friday, February 1st, 2019

Even in situations where there is a clear injury and there is an identifiable wrongdoing by a third party, the proper route for enforcing your rights isn't always clear. This was reinforced this month in the federal U.S. District court Northern Illinois, where parties purporting to represent a class of horse owners alleged that their animals were injured and, in some cases, killed by contaminated horse feed manufactured by Archers-Daniels-Midland Company (ADM). Berarov et al v. Archer-Daniels-Midland Company et al, case number 16C7355. The suit scraped past and attempt by ADM to get it dismissed, but not without a good amount of trimming by the judge.

The facts alleged are simple: ADM manufactures feed for cattle and horses at its plant in Illinois. The cattle feed is fortified with monensin, which increases weight gain by cows. Unfortunately, monensin is also toxic to horses. ADM advertised its horse feed on its website using a number of statements touting its quality and consistency. In 2014 and 2015, the plaintiff's fed their horses feed from the plant and they were sickened and died of symptoms that looked very much like monensin poisoning, and the feed tested positive for monensin. ADM issued a press release stating that the amount of monensin in their feed was negligible and safe, but the owners, located in South Carolina and Michigan, brought suit in Illinois claiming that the cattle feed had cross-contaminated the horse feed with dangerous amounts of the chemical, and filed suit.

So what's the problem? Shouldn't they just got to court and argue over the facts? Not so fast. The owners alleged claims under the Illinois Food, Drugs, and Cosmetics Act, the Illinois Consumer Fraud and Deceptive Trade Practices Act, negligent misrepresentation, strict product liability, unjust enrichment, and breach of express warranty. ADM argued in its Motion to Dismiss the complaint that the whole thing should be tossed out on a number of procedural grounds.

First, ADM argued that the whole suit should be thrown out because the Federal Food, Drug, and Cosmetic Act effectively preempts the state law that the owners were attempting to use in the suit, and that since the owners didn't plead any claims under the Federal Act the whole complaint must be dismissed. The court moves past this argument pretty quickly, noting that, just as for things like minimum wage, discrimination law, gambling or highway safety, nothing in the Federal Act suggests states can't have higher standards than the federal laws.

The other arguments by ADM are more problematic for the horse owners. The Judge dismissed the count brought under the Illinois Food, Drugs, and Cosmetics Act because the Act doesn't actually give individuals a right to sue-it only sets up the state of Illinois itself to have actions against violators, like a criminal penalty. The unjust enrichment claim was deemed to be incoherent because it alleged the existence of a contract, whereas unjust enrichment is about implied contracts. For the Illinois Consumer Fraud and Deceptive Trade Practices Act, the court dismissed the claim because the complaint did not allege enough information to show that the court had jurisdiction, given that the horses injured were in other states (granted, if the feed was actually bought in Illinois the owns might get this claim reinstated.) Similarly, for the negligent misrepresentation and breach of express warranty claims, the court ruled that, while ADM's claims about its feed could be deemed actionably false, the owners had not alleged that they actually saw the claims on the website; they will need to plead more information to sustain those claims. The strict product liability claim was complicate by the fact that Michigan has somewhat unusual requirements for pleading product liability, but the court did leave open the possibility of changing the complaint to meet them.

So the suit itself survives, but the horse owners are going to do some serious editing to their complaint itself. This is a perfect example of a tragic fact pattern that seems like it ought to make for a straightforward case of poisoned horse food, but where finding the proper form and content of the legal complaint itself has proved far more complicated for the injured party.

-Attorney Travis Dunn

New Year, New You, New Gym Laws

Friday, January 18th, 2019

With the ringing in of 2019, many self-improvement-minded people have been hitting the gym more often. Some are signing up for gym memberships for the first time. Whether you're a veteran gym-goer or an optimistic newbie, you should be aware of your rights as a gym member and some of the laws that govern what gyms can and can't do.

Beginning in Illinois in 2019, gym membership contracts may only last up to one year. Whether this will help or hurt gym members remains to be seen. Those who may be suckered into multiple year contracts with no real desire to do so may see some benefit in this new law, but those with longer term fitness goals in mind and the prospect of lower rates may see this as a disadvantage.

The state legislature has further restricted the ability of gym owners and members to contract freely by banning payment plans that last longer than three years. However, this restriction may be said to be balanced by another new law that removes the $2,500 cap on annual gym membership fees. This cap had existed since the 1960's.

These new laws are codified in the Illinois statue titled Physical Fitness Services Act (815 ILCS 645/). This statute includes other notable provisions which may be helpful to know for gym-goers. For instance, gym representatives are required to give you a copy of your written contract after you sign, and this contract may be cancelled by you within 3 business days after the first business day after the contract was signed. Upon cancellation, all monies paid pursuant to the contract must be refunded.

Other grounds upon which you may cancel or modify your gym membership contract are the relocation of the facility farther than 25 miles from your home or disability rendering you "unable to use or receive all services contracted for." Although, in the case of disability, the gym has the right to request and verify "reasonable evidence" of such disability. Other protections for consumers under the Act include prohibitions against unconscionability and misrepresentation.

Many of these laws may not apply to you, but it's always a good idea to understand your rights when you enter into a contract for services. It's our hope that this brief overview may instill some confidence should you find yourself staring down a long, indecipherable gym contract and pondering whether to sign.

-Attorney Ryan Zaborowski

Government Shutdown and Court Proceedings

Friday, January 11th, 2019

The federal government shutdown on December 21st after congressional Democrats clashed with President Donald Trump over whether to allot money to build a wall on the southern border of the United States. The shutdown reaches the three-week mark today, tying with the 1995 closure for the record as the longest government shutdown in U.S. history.

On December 26th, Chief Judge Ruben Castillo of the Northern District of Illinois has halted all civil litigation where the United States is a party. Criminal cases remain unaffected, although jurors won't be paid until the shutdown ends. As of January 9th, 983 cases were on hold. Castillo's order will lift when Congress appropriates money for the courts. Deadlines for attorneys will be extended by the number of days of the shutdown, plus one week.

The U.S. government shutdown has delayed proceedings in at least two high-profile lawsuits in Chicago's federal court, as well as hundreds of others. Lawsuits related to Aurora Chicago Lakeshore Hospital and the city of Chicago's sanctuary city status are both suspended. The shutdown has lengthened the reprieve for Aurora Chicago Lakeshore Hospital, which sued in December for an emergency judicial order to keep Medicare dollars flowing to the psychiatric hospital. State and federal authorities are investigating allegations that patients at the hospital were sexually and physically assaulted, inappropriately dosed with strong medication and poorly supervised. Officials attempted to take federal funds in November, which would have shut down the hospital, but the court sided with the hospital. Medicare payment program is still being financed during the partial government shut down and the Illinois Department of Public Health continues to monitor compliance at Aurora facility. Also, on stalled is a Chicago lawsuit against the U.S. Department of Justice for withholding a $1.5 million law enforcement grant because the city refuses to let federal immigration agents access undocumented immigrants in police lock-ups.

Other cases on the Northern District's docket that have ground to a halt comprise a mix of immigrants fighting deportation, prisoners trying for their freedom, employees alleging discrimination, and disabled people and retirees claiming Social Security benefits. For these people, litigation takes an emotional toll. It is a lot of individual persons that are hurting in one way or another, and they can't get the redress their entitled to.

Regardless of whether you are a Democrat or Republican, the government shutdown affects everyone especially those with cases pending in the Northern District of Illinois.

-Attorney Kendall Hodges

Disability, Workers' Compensation, and the Difference between an Elbow and a Wrist

Friday, January 4th, 2019

The "standard" answer for benefits available in the Illinois Workers' compensation system is that, if a worker is injured in the course of their employment, they are entitled to three things: the cost of their medical treatment; payment for the time that they are unable to return to work; and some type of permanency payment for their future disability.

The last of these is often the most complex, in part because of factual disagreements about actual level of disability, but in part because there are several forms that the payments can take. An injured worker may receive a flat amount, representing the "permanent partial disability" or "PPD" of a specific body part or of their whole body. A worker whose injury is so disabling that they are unable to return to steady work at all may be entitled to permanent and total disability payments for the rest of their life (or, more frequently, a lump sum settlement approximating the same). Somewhere in between, perhaps, are wage-differential awards which compensate a worker who cannot return to a job as lucrative as the one they had before their injury, but who may still work in some lesser paying occupation.

Things get exponentially more complex when you bring in cases of workers with multiple injuries, as is the case in the recently decided case of William Pisano in the Illinois First District Appellate Court out of Chicago (Pisano v. Illinois Workers' Compensation Comm'n, 2018 IL App (1st) 172712WC. The history of Mr. Pisano's injuries is lengthy, but suffice it to say that the initial arbitration of the case found that he had, in his employment with the City of Chicago, injured his right elbow when he slipped and fell on grease while operating a machine in 2005, injured his right wrist when he was hit by a car while directing traffic in 2007, and then injured both shoulder, his right arm, and his back when he slipped and fell while he was attending an employment rehabilitation appointment for the wrist injury in 2010. The arbitrator awarded a lump-sum PPD award for the elbow injury, as well as a wage differential for the wrist injury, which after the second accident resulted in permanent restrictions which prevented Mr. Pisano from returning to his job. The Workers' Compensation Commission itself more or less upheld the decision on review, only adjusting the numbers a bit.

Things got complicated when Chicago appealed that decision, and the circuit court ruled that Mr. Pisano should have received only one award for his right arm, rather the separate awards for his elbow and wrist. This decision was based on previous caselaw which stated that (generally) where a worker has sustained two separate and distinct injuries to the same body part and the claims are consolidated, only one type award is appropriate, to be set at the time of hearing.

The Appellate court disagreed with this application, reinstating Mr. Pisano's original awards for both PPD and the wage differential. Even though both injuries were to his right arm, the first accident was distinct in that it was to Mr. Pisano's elbow, and it mostly healed successfully as one might expect for a PPD award. The right wrist was not injured at all until the second accident, and was the injury which prevented him from working and which entitled him to the wage differential.

All things considered, the Appellate Court's decision is a good one for workers. When the mechanism, location, and debilitating effect of the injuries are different, it makes sense to evaluate them separately when awarding permanency, even if they happen to be the same arm. In this case, the injuries were not really to the same body part, and so the caselaw restricting awards to same body part should not apply.

-Attorney Travis Dunn

The Changing DUI Landscape

Friday, December 21st, 2018

On November 6, 2018, the people of Illinois elected J.B. Pritzker as their new governor, with the governor-elect officially taking the mantle in January. Given his previous statements on the matter and his claim that it would bring in hundreds of millions of dollars in annual revenue for the state, he will likely be in favor of a potential measure to legalize marijuana for recreational purposes. Should Illinois legalize marijuana for recreational use, it would be the 11th state to do so. Legalization for recreational use has been a boon to the economies in such states and many would argue that the overall impact has been positive. But the more widespread use of an intoxicating substance comes with potential issues and concerns, particularly in the area of public safety.

The answer about what to do with obviously impaired drivers who have ingested marijuana is probably obvious, but what do we do with drivers who have ingested marijuana yet pass field sobriety tests with flying colors? States have begun to tackle these issues in different ways. In Washington, a driver is considered impaired and subject to prosecution for DUI if he or she is shown to have a blood THC level of 5 nanograms. California, on the other hand, has not established a "per se" level of marijuana intoxication. Instead, law enforcement officers rely on a number of indicators to determine if someone who has ingested marijuana is driving impaired, such as conducting field sobriety tests, evaluating physical signs and taking multiple blood pressure and pulse measurements. These diagnostic approaches are the province of "drug recognition experts" and are being employed currently in lieu of more objective standards, which some in the state continue to call for.

Akin to breathalyzers for alcohol-related traffic stops, in certain situations California police officers employ a test using the Dräger DrugTest 5000, which detects THC in a person's saliva but does not necessarily indicate any level of impairment. Blood testing is more accurate and also available in some cases, but comes with its own limitations and drawbacks such as a long wait time for reliable results.

As for the overall effect of recreational marijuana legalization on public safety, fatal crashes in Washington involving drivers with marijuana in their system increased steadily between 2013 and 2016, while such crashes in Colorado have remained relatively consistent. For now, at least in California, police officers must rely on their judgment to determine if a driver who used marijuana and got behind the wheel is impaired. Overall public safety and practical implementation of law enforcement for marijuana-related DUI's are some of the most pressing issues facing states that have legalized recreational marijuana use and are likely to be concerns for Illinois as well should the state follow suit.

-Attorney Ryan Zaborowski

Is Your Christmas Tree a Liability?

Monday, December 17th, 2018

Happy Holidays! It is that time of year again where we all join in on the Christmas spirit and traditions. My favorite Christmas tradition is going to Holocker's tree farm to cut down our own Christmas tree. When I was little, my parents would take us out there and we would each take turns cutting it down. I knew this was a tradition I planned on keeping alive once I had my own family. This year we went the Saturday after Thanksgiving and cut down our tree! I honestly don't think you can beat the smell of a real tree. However, with a real tree, there are plenty of precautions one needs to take specifically with fire.

According to the National Fire Protection Association, U.S. fire departments responded to an estimated average of 200 home structure fires per year that began with Christmas trees in 2011-2015. These fires caused an annual average of 6 civilian deaths, 16 civilian injuries, and $14.8 million in direct property damage.

Although Christmas tree fires are not relatively common, they are completely preventable, meaning that even one tragedy is too many. With that said, there are legal ramifications to a Christmas-tree induced fire including financial liability and injury liability.

A financial legal liability due to a preventable Christmas tree fire can arise when a fire causes damage to property other than the homeowner's. This is especially a concern in multi-unit residences such as condos or townhouses or duplexes. A Christmas tree fire in one unit could easily spread to other units resulting in the homeowner not only having to be financially responsible for their own units, but their neighbors' as well. Many homeowner's insurance cover fires resulting from Christmas trees.

Legal liability could result from injury from any fire. If, for example, you have guests over and your guests are injured, that guest may soon be a Plaintiff. The same goes for neighbors in the event that the fire spread to their property.

So, let's discuss some ways we can prevent a Christmas tree from starting a fire. If you have a real tree, you should do the following:

  1. Start with a fresh tree - make sure it is not dry.
  2. Keep the tree hydrated - put water in it as needed - some trees once cut need more water in the first week.
  3. Keep your tree away from heat sources that can dry it out.
  4. Throw the tree away when it reaches old age - trees last a maximum of four weeks.

It is fairly easy to ensure that your home and loved ones are safe from Christmas tree mishaps. With these easy steps, you can enjoy your holidays and be worry free from potential fires.

From everyone at the Law Offices of Peter F. Ferracuti, we hope you have a wonderful and safe holiday season!

-Attorney Kendall Hodges

The saving grace of a case lacking haste

Friday, December 7th, 2018

Contract disputes, especially contract disputes regarding supply chain issues, can seem a little dry in comparison to other areas of law. Circuit courts can generally resolve such things due to their heavy reliance on the facts and understandings of the parties involved, or at the very least the plausibility of the lower court's decisions regarding such things. All of which is to say that it is notable when one hears about a decision where things went a little differently.

This is precisely the case in the federal case of Newspin Sports LLC v. Arrow Electronics, however. The Seventh Circuit Court of Appeals, in a ruling issued on December 3, 2018, did not entirely salvage the claims of Newspin, but it did save at least part of its case against Arrow.

As might be expected, the issues presented by the case have a relatively straightforward factual background if you boil it down: Illinois based Newspin Sports LLC, a company that sells electronic motion-sensors for helping athletes with things like golf swings, entered into a contract with New York based Arrow Electronics to manufacture and deliver components of the products. Unfortunately, the components delivered in mid 2012 were defective, and defective in such a way that Newspin didn't catch the problem until the sensors were shipped on to customers, a situation which allegedly cost Newspin quite a significant sum of money and reputation. Ultimately Newspin filed suit for breach of contract, breach of implied good faith and fair dealing, fraud, fraudulent misrepresentation, unjust enrichment and negligent misrepresentation.

Where the case gets complex, and why it got to the appellate level in the first place is that, for whatever reason, Newspin didn't file suit over this behavior until January of 2017. The circuit court ruled that this was too late for every single one of Newspin's claims, and completely dismissed the lawsuit. The appellate court, however, disagreed as to some of Newspin's claims. As to the claims actually based on the contract, Illinois has a very generous ten year statute of limitations for most contract disputes, but there is a major exception for contracts for "transactions in goods." Newspin tried to argue that because Arrow also was assembling and shipping the components that they were engaged in work rather than a transaction of goods, but the appellate court did not buy this and upheld the dismissal as to the contract claims.

It gets more interesting when the other claims get involved. The appellate court found that the unjust enrichment claim was basically based on the contract claims, and similarly upheld its dismissal. The negligent misrepresentation claim's dismissal was actually upheld on entirely different grounds from everything else, invoking a bar in the state of New York against pure economic losses in negligent misrepresentation claims. Unlike the statute of limitation, which procedurally was governed by Illinois law, the contract itself at issue here stated that substantive law would be that of Arrow's home state of New York. Luckily for Arrow, they lucked out a bit in that regard.

Finally, the decisions that allow the case to actually move forward: the claims that Arrow engaged in fraud. The district court found that these, like the unjust enrichment claim, was so tied to the contract itself that the four year statute of limitation blocked Newspin's claims. However, the Seventh Circuit disagreed. They found that, during the negotiation of the contract, Arrow's claims that they would produce components to Newspin's specification constituted possible fraud, sperate from the terms of the contract itself. Since the statute for fraud is five years instead of four, Newspin was able to squeak by with their claims for fraud and fraudulent misrepresentation, despite having the actual contract part of their contract dispute dismissed.

It's amazing how complicated a simple contract dispute can get. Especially when it turns out to not be a contract dispute at all.

-Attorney Travis Dunn

Alexa, Drive Me to Work

Monday, November 26th, 2018

Illinois took a big step toward its future with self-driving cars on October 25, 2018. That's when Governor Bruce Rauner signed an executive order allowing the testing of semi and fully autonomous vehicles. This puts the state in the company of others with similar legislation such as Arizona, California and Pennsylvania. This order does not supersede federal regulations regarding the new automotive technology, but rather was signed with the purpose of permitting companies to begin testing autonomous vehicles in Illinois. The order requires entities seeking to test such technology in Illinois to register with IDOT (Illinois Department of Transportation) and subjects such entities to several rules and limitations regarding how the testing may be done. This is not particularly groundbreaking for the country, however. As of 2017, 33 states had introduced legislation regarding autonomous vehicles. This legislation ranges in purpose from research and testing of autonomous vehicle technology to personal and commercial use of autonomous vehicles.

But what is a self-driving car? When you picture it, do you envision a "robot car" that simply shuttles passengers from place to place? You might, and you probably wouldn't be alone. This may seem like the logical end goal to self-driving vehicle technology, but the current and near-future applications of autonomous vehicle technology are actually much more limited and mundane. One definition of a self-driving car is "a vehicle that is capable of sensing its environment and moving with little or no human input." This "little or no human input" would cover the fully autonomous, shuttle-like robot car that simply ferries passengers from place to place with no effort on their part, but this may also refer to currently available features, such as cruise control modes in which the driver steers the vehicle and the vehicle controls speed. This type of "adaptive cruise control" is part of what SAE dubs "Level 1" automation. "Level 3" automation is referred to as "eyes off" driving and allows the driver to turn his or her attention away from driving tasks but requires that he or she be prepared to handle certain critical situations, like emergency braking. "Level 5" automation, the highest level of automation, is the "steering wheel optional" point at which no human intervention is required at all (e.g., robotic taxis).

According to these standards, "self-driving" cars are already among us. The type of self-driving vehicle technology that the recent executive order signed in Illinois seeks to advance, however, is more akin to the novel "steering wheel optional" level of automation than simple assistive features like adaptive cruise control. But what does this mean for society? Some potential advantages touted by proponents of autonomous vehicle technology are safer streets (due to the elimination of human error such as delayed reaction time and road rage), reduced labor costs (as passengers in fully autonomous vehicles would be able to get work done on their commute) and decreased traffic (due to higher speed limits minimized traffic congestion). But as with the implementation of any new technology on a large scale, wide-spread use of driverless cars is not without its disadvantages. These range from the loss of driving-related jobs in the road transport industry to the dangers of increased urban sprawl and fuel consumption as workers are enticed to move further away from their workplaces by the allure of a stress-free, almost effortless commute.

Aside from policy arguments for or against unleashing fully autonomous vehicles on the road, the legal landscape faces significant uncertainty as motor vehicle accidents involving driverless cars pose a slew of new issues that current statutes and case law are currently unprepared to handle. Existing liability laws will need to adapt to accommodate autonomous vehicle technology. Who's responsible if a fully autonomous car crashes into another and causes injury to a passenger? If this is a Level 5, "steering wheel optional," situation, you might be inclined to assign liability for the crash to the manufacturer of the vehicle. But what if the vehicle causing the crash was only equipped with Level 3 or Level 4 automation and had "passed back" control of the vehicle to the human operator at a critical moment? Is the human operator liable in that case? The vehicle manufacturer? Both? These are the questions that threaten to plague judges and litigants in the near future unless thorough and thoughtful legislation is passed in the meantime. As autonomous vehicle technology continues to take hold, some insurance companies anticipate a drop in personal liability polices and an increase in commercial and product liability policies.

So how do you feel about driverless cars? If you're like one of the majority of people surveyed in one study, you might be in favor of them and think that "autonomous cars are probably smarter than the average human driver." Most people surveyed, however, still expressed reservations about the safety and technological security of completely driverless vehicles. Regardless of public opinion, the continuing advancement and implementation of fully autonomous vehicle technology seems to be a foregone conclusion at this point. Whether this will ultimately be good or bad for society, however, remains to be seen.

-Attorney Ryan Zaborowski

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