Illinois Lawyer Blog

The Illinois Home Repair Act [815 ILCS 513/25] is getting a lot of attention these days because of some conflicting Appellate Court opinions interpreting the Act's requirements. If you are an Illinois contractor engaged in home repair and remodeling, here is a very basic primer on what you need to do in order to comply with the Act:

1) If the project is going to cost more than $1000, there is to be a written contract, setting forth the total cost. Additionally, the business name and address of the person[s] engaged in the work is to be provided. 815 ILCS 513/15.

2) Notify the client if the contract is going to impact the client's right to recovery. Specifically if the contract provides that disputes are to be resolved via arbitration or the right to a jury trial is waived, the contractor is to specifically notify the prospective client of those provisions. Although it is not set forth in the statute, it would be prudent to have a separate document spelling out the arbitration and jury waiver rights. 815 ILCS 513/15.1[a].

3) Document the client's decisions as to the arbitration provision or jury waiver in writing. The statute suggest having the client simply write "accept" or "reject" in the margins wherever the provisions appear in the contract. 815 ILCS 513/15.1[b]. That's a little informal. You might want to have a separate document formally demonstrating the client's election as to those issues.

4) Give the client a copy of the "Home Repair: Know Your Consumer Rights" pamphlet provided by the Attorney General. And, have the client sign and date a "Consumer Rights Acknowledgement Form" also provided by the Attorney General. 815 ILCS 513/20 [a].

5) Last, but not least, be sure that you are properly insured. The Act requires contactors to carry certain levels of public liability and property damage insurance.815 ILCS 513/25.

Please note: the above list is NOT comprensive, and is only meant to be a general discussion of what the Act requires. Be sure to check with an experienced attorney before undertaking any remodeling projects

Last week the Chicago Tribune ran an article by Ameet Sachdev on a sizable verdict recently handed down by the Chicago Commission on Human Relations. The case involved Dena Lockwood[pictured above] a working mom, who took a job with Professional Neurological Services in 2004. She paid a price because she was a parent. Lockwood's commission rate was lower than other sales personnel who did not have children. She had a tougher time getting time off than her single counterparts. And Lockwood felt ignored in sales meetings. Then in 2006, she had to take a day off because her 4 year old was sick. Her manager fired her.

Lockwood elected not to go to court, but to file a discrimination claim against Professional Neurological with the Commission And she won - in a big way. In July the Commission ruled awarded her over $213,000, including $100,000 in punitive damages. In addition, the hearing officer has recommended that Lockwood's legal team receive $87,000 in legal fees. Professional Neurological has indicated it intends to appeal the award.

Congrats to Lockwood and her attorney, Ruth Major.

A lawsuit growing out of a Twitter post has been tossed by a Cook County judge. Last summer Uptown resident Amanda Bonnen filed a Twitter post commenting on her "moldy apartment". Her landlord, Horizon Management Group Realty LLC got wind of the tweet and filed a libel lawsuit against her.

Bonnen's attorney, Leslie Ann Reis argued that the comments in the Twitter post were simply Bonnen's opinions. Judge Diane Larsen agreed, noting that "The Court finds the tween non-actionable as a matter of law." Congrats to Bonnen and Ms. Reis.

Almost missed this story coming out of Montana...

Last week, a Montana judge refused to toss a jury verdict against Hillerich & Bradsby, the manufacturer of the Louisville Slugger baseball bat. In 2003, Brandon Patch, an American Legion baseball player was killed when he was struck on the head by a ball hit off an aluminum Louisville Slugger bat. Brandon's parents sued in 2006, alleging the bat was "unreasonably dangerous". In addition, they alleged that the manufacturer failed to properly warn of the dangers associated with the bat.

In October, 2009, a Helena jury returned a jury verdict for Brandon's parents. The jury ruled that although the bat was not defective, the warnings were inadequate. In November, attorneys for Hillerich & Bradsby moved to throw the verdict out claiming that there was no evidence Patch would have acted differently had he been properly warned.

The trial judge denied the motion. The court ruled that "...the jury may have properly inferred from the evidence that a warning would have been heeded and the failure to warn caused the injury." No word on whether an appeal of the jury verdict is planned...but I can't imagine the bat manufacturer will simply give up. There are lots of aluminum bats being used on baseball diamonds all over America every spring and summer. The potential exposure is enormous.

On December 31, 2009, the Second Appellate District Court of Illinois released an opinion that I had been waiting for - reversing the trial court's dismissal of the negligence portion of one of my cases involving a very serious eye injury. My client, a young guy was an athletic trainer at the time of his injury. He was loaned out to a local hockey team. He spent most of his time in an office in the back, only coming to the ice under very limited circumstances - attending to an injured player or filling water bottles in the bench area when the players banged on his door.

On the day of the injury, he heard some banging on the door and headed to the bench area. As he stepped into the bench he caught a puck in the right eye. The puck fractured bones under his right eye and resulted in permanent vision loss. I filed suit against the player involved and the team. After discovery, they filed a motion to dismiss the negligence counts under the "contact sports doctrine" [CPS]. The CPS doctrine basically says that participants in a contact sport may be held liable for injuries to coparticipants only for injuries caused by "wilful and wanton" conduct - which essentially means the defendant knew that a serious injury would occur. Under the CPS defendants are NOT liable for injuries from simple negligence. The trial court, to my dismay, granted the motion. The court's order left me with only wilful and wanton counts against the defendants - which are very difficult to prove.

I appealed the dismissal of the negligence counts. More precisely retained the very capable Joanna Fryer to handle the appeal. And last week learned that the Appellate Court reversed the trial court's opinion dismissing the negligence counts. The Appellate Court ruled that my client was not a participant in a contact sport, and consequently the CPS doctrine does not apply. The negligence counts are re-instated. Nice way to start the year - with an win in the Appellate Court.

The January 5, 2010 Chicago Tribune carried a follow up article on the very sad story of Christina Eilman. In the spring of 2006, Ms. Eilman was a 21 year old California woman suffering from bipolar disorder. Her disorder was getting worse - she dropped out of school and lost touch with family and friends. And then she took a trip to Chicago.

After landing at Midway Airport, Eilman remained in the airport for two days, acting in an erratic manner. The Chicago Police Department was called to the Airport on two separate occasions and eventually arrested Eilman and transported her to the Chicago Lawn station, located near the airport. One officer has claimed that he called Eilman's parents in California and was informed she was "probably" bipolar. The officer further claims that he passed that information to his Watch Commander. Chicago Police Department rules require officers transport persons suffering from mental illness to a hospital for an evaluation. The City claims it was not necessary because during one interview at the Chicago Lawn Station, Eilman was apologetic and lucid.

But there were certainly indications all was not well with Eilman. One Officer, Rosendo Moreno, told investigators that while Eilman was still at Chicago Lawn he heard the Watch Commander, Carson Earnest, instruct Officer Richard Cason to take Eilman to the hospital for an evaluation. According to Moreno, Cason told the Commander no car was available. Cason told investigators he does not recall the conversation. Earnest has denied ever being advised that Eilman was mentally ill. However, another officer, Yvonne Delia was sufficiently alarmed by Eilman's behavior that she called Eilman's parents in California was advised Eilman was mentally ill. Delia further claims she passed that information onto Earnest.

Eilman never got to a hospital. Instead, she was transported to the Wentworth District, commonly known as Area 2. The Wentworth District is located near the University of Chicago and recognized as a high crime area. Eilamn was escorted to the rear door of the station and allowed to leave. Eilman continued to act erratically as she wandered the streets. Eventually she ended up at a public housing high rise. Not long thereafter Eilman went to an empty 7th floor apartment with a group of people. At least one person tried to persuade Eilman to leave but she refused.

Eventually, Marvin Powell, a reputed gang member and convicted felon arrived. He ordered everyone out of the apartment but prevented Eilman from leaving. Eilman was heard screaming briefly. Shortly thereafter, she plunged from the 7th floor apartment to the ground below.

As a result of her fall, Eilman suffered multiple fractures, a shattered pelvis and a devastating brain injury. After years of treatment, she has now plateaued and has only a child-like comprehension of the world. She will need ongoing medical care for the rest of her life.

Marvin Powell was arrested and charged with abduction and sexual assault. He is in jail, awaiting trial.

Eilman's parents have filed a federal lawsuit against the City of Chicago seeking $100 million dollars in damages. The case is expected to go to trial in March.

From the Department of Fair Play...

On September 2, 2009, I posted about Dimitrios Biller, the former Toyota attorney who filed a whistleblower lawsuit against Toyota alleging that the car manufacturer had concealed and destroyed evidence that should have been produced in rollover cases. Not long after Biller filed his lawsuit, a class action was filed on behalf of all plaintiffs who had lost or settled rollover cases where Toyota had allegedly withheld evidence.

According to an article at Law.com, and a tweet from Craig Niedenthal, there may not be much substance to Biller's allegations. Lawyer E. Todd Tracy was allowed to review 9000 documents that Biller claimed supported his allegations that Toyota acted inappropriatedly in the rollover cases. Tracy represented a group of plaintiffs who had prosecuted cases against Toyota prior to Biller's allegations. He was hoping the Biller documents would help him re-open those cases. Tracy remarked that "...I did not see any type of concealment, destruction, or pattern of discovery abuse that affected my cases that I sought to reopen." Last week Tracy dismissed the lawsuit he had filed to resurrect the earlier cases.

A Toyota spokeperson said that Toyota was pleased that Tracy dismissed his action.

Kenneth P. Nolan writes a monthly column entitled Sidebar for Litigation, the monthly publication by the American Bar Association Section of Litigation. Mr. Nolan is a proud resident of Brooklyn, New York and a seasoned veteran of New York courtrooms. In my humble opinion his columns are the best part of Litigation. In his Summer, 2009 column[yeah, I'm a little behind in my periodical reading] he discussed Opening Statements. The entire column is worth a read. But I wanted to mention one of the points he made that I really liked.

Nolan, like many other trial attorneys suggests that you let a little argument seep into your Opening Statement. He notes:

The plaintiff has to tell the jury what he will prove. "The evidence will prove..." And what he wants. "At the end of the this trial, I want you to give a verdict for Mrs. Clark adn award her money damages.." Don't be shy. If you want a boatload of dough, tell them. You don't have to use numbers, but make sure they understand you will be asking for more than they'll ever make in five lifetimes.

....The defendant should appeal to the jurors' courage, fairness and common sense in peeking around and through the horrible injuries. American justice demands you award the plaintiff nothing. Enter judgment for my client Exxon because even large corporations that make billions and employ thousands deserve the same fair shake as you and me and all Americans.

His column alone makes the costs of Litigation worth it.

Last week the Illinois Supreme Court delayed the release of a long-awaited opinion dealing with the constitutionality of caps on damages in medical malpractice cases. The opinion in LeBron v. Gottlieb Memorial Hospital will rule on the constitutionality of the Illinois Medical Malpractice Act of 2005, which set limits on the amount of non-economic[i.e. pain and suffering]damages victims of medical malpractice can recover. The Act limits non-economic damages to $500,000 against doctors and $1 million against hospitals. No reason was provided for the delay, and no specific date was set when the ruling would be released.

Is the right to timely amend a complaint absolute? The provisions of 735 ILCS 5/2-616 of the Illinois Code of Civil Procedure seem to suggest that it is, by noting in subsection [a] that "...at any time before final judgment amendments may be allowed on just and reasonable terms...."

Additionally, subsection [c] notes that "A pleading may be amended at any time, before or after judgement to conform the pleadings to the proofs".

Until fairly recently defense lawyers very rarely challenged my efforts to timely amend complaints. That era of detente however, seems to have ended. Recently, defense lawyers have been objecting to my attempts to timely amend complaints, even when I am not adding new causes of action. The objections typically cite "suprise" or "prejudice", even if the desired amendments are simply adding facts to the complaint that have been discussed extensively in depositions. Defense objections probably are not motivated by actual suprise. Instead they are likely trying to preemptively get a ruling that certain facts can't be discussed at trial.

I expect rulings on several motions to amend in the very near future. I will find out then if I have to tweak my understanding of 5/2-616.

Putting the final touches on my response to a lengthy Rule 216 Request to Admit filed by the defendant. In reading some of the recent Illinois cases discussing what constitutes a proper response - came across some helpful information. It is NOT sufficient for responding party to simply claim a lack of knowledge as a reason for a failure to admit or deny. Instead, the answering party must make a reasonable effort to secure answers to Requests to Admit from persons and documents within the responding party's reasonable control. Requests to Admit continue to represent enormous potholes for the unwary. For additional insight, see Szczeblewski v. Gossett (5th Dist. 2003) 342 Ill.App.3d 344, 277 Ill.Dec. 1, 795 N.E.2d 368

Illinois legislators recently added a new section to the Illinois Vehicle Code banning text messaging while driving. Under Section 625 ILCS 5/12-601.2, "... a person may not operate a motor vehicle on a roadway while using an electronic communication device to compose, send or read an electronic message". The law becomes effective January 10, 2010.

Additionally, the legislature amended the Vehicle Code to bar the use of cell phones in school speed zones and construction zones. Pursuant to new language found in 625 ILCS 5/12-610.1[e], no motorist, regardless of age, may use a cell phone while driving in a school speed zone or construction zone. The amendment does carve out some exceptions. For example, it does not apply to construction workers engaged in a project in the construction zone. Additionally emergency responders, such as police, firemen and health care providers are allowed to use a cell phone for emergency purposes in a school or construction zone. The amendment also becomes effective January 10, 2010.