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PREMISES LIABILITY

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


DRAMSHOP ACT: RESPONSIBILITY FROM BOTH SIDES OF THE BAR

Friday, March 30th, 2018

From the perspective of the general public, one of the most frustrating parts of the law can be how much of it is contained not in laws which have gone through the legislative process but rather interpretations which have been set by various previous cases through time. Sometimes, though, the law speaks pretty clearly on its own. Such is generally the case of what is technically Section 6-21 of the Liquor Control Act of 1934, more commonly know as the Dramshop Act, and the recent eye-catching $37.5 million dollar judgement handed down in St. Clair County based on it. The Act allows injured parties to hold sellers of alcohol responsible for the injuries caused by those patrons that they serve, and its modern nickname stems from the term for one pour of alcohol, and the shops which serve them.

The facts of the recent case itself are heartbreakingly. Following a night of drinking at the Deja Vu Showgirls strip club in St. Louis, Robert W. Casares drove east into the westbound lanes of Interstate 64 and collided head on with the semi-truck containing the over-the-road trucking team of Lucas and Jessica Williams. In ensuing accident Jessica lost her life and Lucas suffered burns which left him hospitalized for six months and left permanent incapacitating damage. One can understand where the judge was coming from when he found the damage amount.

The Dramshop Act has changed relatively little since it's initial, prohibitionist-leaning conception in 1872. In the current version, the Act starts off by laying out the basics.

Every person who is injured within this State, in person or property, by any intoxicated person has a right of action in his or her own name, severally or jointly, against any person, licensed under the laws of this State or of any other state to sell alcoholic liquor, who, by selling or giving alcoholic liquor, within or without the territorial limits of this State, causes the intoxication of such person.

There are thus a couple of key parts of this. Firstly, only the injury has to happen in Illinois. If you sell alcohol someplace within or without the borders of Illinois (Missouri, for example) and that person injures someone in Illinois, you are on the hook. Secondly, one can be sued severally or jointly. If the defendant bar-hops on the way to injuring you, there is potentially several liable establishments. Thirdly, although the seller of alcohol does not necessarily have to be selling the particular drinks ("giving" is specifically covered), they do have to be a licensed seller of alcohol. This statute doesn't apply to drinks that someone provides at a house party or something similar, although obviously there might be other responsibility there under other legal theories in the case of underage drinking and things like that.

And, naturally, there is 150 years of caselaw muddling all of this. But the basics still hold, especially in cases such as the recent judgement in St. Clair County. Its vitally important that, if you are injured by and intoxicated person in any context, you have an attorney who can investigate all avenues of possible recovery and legal responsibility for your injury. If you have any questions regarding a personal injury, 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.

- Travis J. Dunn, 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