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

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.

Read an interesting case today on the issue future damages. In Maddox v. Rozek, the First District Appellate Court of Illinois was faced with an issue involving future damages. Specifically, after a verdict for plaintiff in an auto case, the defense appealed, arguing that the jury should never have received an instruction on future pain and suffering because their was no expert[i.e. doctor]witness who testified that plaintiff would have problems in the future.

After surveying the law, the Court held that where future pain and suffering can be objectively determined from the nature of the injury, the jury may be instructed on future pain and suffering based solely on lay testimony. When future pain and suffering is not apparent based simply on the injury, or is subjective, the plaintiff is obligated to present expert testimony.

Bottom line? If your client doesn't have a cringe-inducing injury[loss of an eye is an example cited by the Court] get an expert.

Interesting opinion, Forsberg v. Edward Hospital, just came down from the Illinois Appellate Court, Second District. The plaintiff alleged that she underwent a lumpectomy on June 4, 2004 at Edward Hospital. The surgeon was Dr. Piazza. Two incisions were made - one near the armpit and one near the left breast. During surgery, sponges were used, and one was inserted into the surgical wound. Near the end of the procedure, a nurse advised Dr. Piazza that all sponges had been collected. As a result he closed and the procedure was completed.

Dr. Piazza saw the defendant on several occasions after surgery. When he felt the armpit incision was not healing, he scheduled a follow-up procedure. On July 30, 2004, during the second procedure, he discovered the sponge and removed it.

The plaintiff sued both the doctor and hospital. The hospital settled their case with the plaintiff. Dr. Piazza brought a motion for summary judgment, contending that the plaintiff had failed to disclose expert evidence that a deviation from the standard of care had occurred, as required by Illinois law. The plaintiff, in response, argued that no expert testimony was necessary, because of "common knowledge" exception to the rule requiring expert testimony in a med mal case. The "common sense" exception basically says that under certain circumstances, a juror knows, without any help from an expert, that a doctor has screwed up. And plaintiff arged that jurors would know that leaving a sponge inside a body is a breach of the standard of care. Must admit, at this point in the opinion I thougth plaintiff was in good shape. Not so fast.

The Appellate Court agreed that the "common knowledge" exception had been applied when sponges were left in the patient's body. In another 2008 decision, Willaby v. Bendersky, the Court held that even without expert evidence, a sponge left in a body established a prima facie case of medical negligence - BUT the defendant still gets an opportunity to explain just how the sponge got there. In other words, the presumption that the defendant is negligent created by the simple presence of the sponge can be rebutted.

In Ms. Forsberg's case, the Appellate Court noted that the doctor reasonably relied upon the nursing personnel[employees of the hospital] in assuming all sponges had been collected. The Appellate Court affirmed the trial court's decision to grant summary judgment on behalf of the doctor.

Much as I hate to admit it, this is a well-reasoned opinion.

[As an aside the plaintiff did offer some other arguments apart from the "common knowledge" angle. Those arguments, which are too boring to explain in an already lengthy post, were not convincing to the Appellate Court].

Finally, the Illinois legislature has done away with the ridiculous Chicago Transit Authority [CTA] notice provisions!!! Prior to June 1, 2009, anyone wishing to sue the CTA was obligated, pursuant to 70 ILCS 3605/41, to file a very specific Notice[often referred to as the "Section 41 Notice"]. The Notice was to be provided to the Secretary of the Transit Board, as well as the Office of the General Counsel of the CTA. The Notice was to include certain information, including, but not limited to the date and time of the occurrence, as well as the precise location of the occurrence. If the information provided in the Notice was in any way incorrect, the old statute provided that the trial judge had to toss the case - even if the mistakes were of a technical nature, with no impact on the actual merit of the case.

But no more!! On Monday, June 1, 2009, Governor Quinn signed Senate Bill 84[CTA Section Notice Repeal] into lawl Senate Bill 84 is now Public Act 96-0012. It should be noted that the repeal only applies to causes of action accruing on or after the effective date of the the Act - June 1, 2009. The Statute of Limitations against the CTA remains one year.

Kudos to bill sponsor Senator Ira Silverstein and Representative Al Riley.

The Illinois Appellate Court[First District] recently released the Clark v. Children's Memorial Hospital decision, which clarifies what parents may recover in a "wrongful birth" case. "Wrongful birth" refers to the claim of parents who allege they would have avoided conception, or terminated a pregnancy but for the negligence of those charged with genetic counseling as to the likelihood of giving birth to an impaired child.

In the Clark case, the plaintiffs, Amy and Jeff Clark had a son, Brandon, in 1997. At 15 months of age, Brandon began showing signs of developmental problems, including poor head growth and difficulty walking and talking. In 2001 Amy sought genetic counseling from Dr. Barbara Burton to determine if Brandon suffered from Angelman Syndrome - a disorder caused by the abnormal function of the gene UBE3A , located in a small region of chromosone 15. In about 80% of those with Angelman syndrome, this small region is deleted from the maternally derived chromosone due to a mutation.

Dr. Burton informed Amy that all known genetic mutations for Angelman Snydrome in Brandon had been ruled out. That information was incorrect - in November, 2000, an analysis of Brandon's DNA had been done at Baylor College of Medicine. The analysis showed that Brandon did indeed suffer from Angelman Syndrome. Siblings of children with the mutation of the UBE3A gene[like that shown in Brandon] have a 50% risk of being borne with Angelman Syndrome.

Dr. Burton never obtained the Baylor College of Medicine results, and never informed Amy that Brandon did suffer from Angelman, due to the UBE3A mutation. As Dr. Burton incorrectly advised Amy that all known genetic mutations for Angelman Syndrome in Brandon had been ruled out, Amy planned to have another child.

On Marcy 27, 2002, Amy gave birth to another son, Timothy. In June, 2002, Amy had some concerns regarding Timothy's development. In September, 2002, Amy contacted Dr. Soma Das at the University of Chicago to discuss Timothy's symptoms. Dr. Das indicated that Timothy and Brandon should be entered into a study of Angelman syndrome, but that boys could not enter without a complete set of Brandon's records. Shortly thereafter, Amy contacted Baylor College of Medicine to get Brandon's records. On September 30, 2002 she learned for the first time that Brandon's UBE3A analysis was not normal. Subsequently, Timothy was diangosed with Angelman Syndrome.

The Clarks filed suit ffor wrongful birth, seeking damages for the extraordinary costs of caring for Timothy during his minority, and when he became of age. In addition, they sought recovery for lost wages. The trial court determined that plaintiffs could only recover damages for the extraordinary costs for caring for Timothy until age 18. The plaintiffs then appealed that decision. After a careful review of the relevant caselaw, the Appellate Court ruled that the plaintiffs could plead a cause of action for wrongful birth to recover damages for the extraordinary costs of caring for the unemancipated, disabled child beyond the age of 18.

Interesting decision, Johhnson v. Bishop, just came out of the Third Appellate District Court speaking to the issue of the duty owed by vehicle owners when ne'er-do-wells steal their cars.

First, a brief rundown of the players. Robert Sonnemaker and David McLeod were roommates. Sonnemaker owned a Ford Taurus. Although not entirely clear, it appears that both Sonnemaker and McLeod had keys to the Taurus. One of the roommates allowed a Thomas Bishop to crash at their apartment. Mr. Bishop, it appears, was both homeless and a fan of crack cocaine. McLeod had previously allowed Bishop to use the car on several occasions. On the evening of December 3, 2005, the Ford Taurus was parked near the apartment. McLeod retired for the evening and although not entirely clear, it appears Sonnemaker did as well. When they retired, Bishop was still present in the apartment. You can probably guess where this is headed...

Bishop somehow gets the keys to the Taurus and decides to take it for a ride. Unfortunately, part of that ride included a collision with a vehicle driven by Todd Johnson. Johnson sued Bishop, Sonnemaker and McLeod. Johnson alleged that Sonnemaker and McLeod failed to prevent Bishop from getting the car keys and, thereby ultimately caused the collision. Sonnemaker and McLeod moved to dismiss those counts and the trial court did so.

On appeal, the Appellate Court noted that generally, Illinois Courts have held that no duty exists to a third party injured by a defendant's stolen vehicle without showing special circumstances making the theft foreseeable. The Court went on to note that in order to state a claim the plaintiff had to show 1) the defendants committed some act which made the keys accessible to the person who stole the car and 2) that it was foreseeable that the car would be stolen. The Court found that the plaintiff failed to show how either Sonnemaker or McLeod had done anything to make the keys more accessible to Bishop. Furthermore, the Court found that there were no facts to suggest theft of the car was foreseeable. The trial court's ruling was affirmed.

Settled a case the other day where my client was injured after falling on what appeared to be ice and snow near the entrance to a restuarant. If the injury had solely been caused by the presence of ice and snow, the client may have been out of luck. The fact that the owner had admitted allowed water and ice to accumulate near the only entrance door allowed me to pursue another theory of recovery.

In Illinois, a property owner has a general duty to provide a reasonable means of entry to and from their business. At the same time, a property owner has no duty to remove natural accumulations of snow and ice fom his property. The presence of ice and snow however, doesn't completely immunize a property owner. The owner still has a duty to give adequate warning of a known and dangerous condition. In my case the owner admitted that he was aware that due to the slope of the roof, moisture would descend onto the sidewalk area near the front door[the only door the public was allowed to use]. Nonetheless, he had taken no steps to warn customers of moisture near the door. As a result I could argue he was in violation of his duty to provide safe entry to his building. The defense lawyer recognized that fact and the case resolved shortly before we were to start picking a jury.

That being said, premises cases are becoming increasingly difficult to litigate in Cook County and the surrounding counties. As noted above if a person is injured due to a natural accumulation of snow/ice, he is out of luck. Even if you can prove the accumulation was not natural, the jury instructions are not plaintiff-friendly. And juries seem increasingly skeptical when it comes to these types of cases. Consequently, I advise my clients early on that at some point, if a reasonable settlement offer is conveyed, I will be telling them to take it

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Plaintiff Hilario Mercado Jr. went to a family birthday party on September 27, 2003. As so often happens at family parties, a fight broke out and the Addison Police were called. Upon their arrival, Mercado and another person were leaving. One of the officers requested ID and Mercado presented his state ID. The Police ran Mercado's name, race, sex and date of birth and learned that a "no bond" warrant had been issued for Mercado on a retail theft charge. The DuPage Sheriff was contacted and it was confirmed the warrant was still valid. The DuPage warrant provided information as to the Mercado's name, date of birth, driver's license, social security number, eye color, hair color, height and weight. The officers explained the warrant and arrested Mercado. Mercado claimed that he insisted that he was not the subject of the warrant, had never been arrested and had never missed court. [Later it was learned that Mercado's identity had been stolen and the person who failed to appear was not Mercado, but someone named Ruben Vasquez]. The Police denied that Mercado claimed he wasn't the subject of any warrant. Mercado was taken to jail. A couple of days later he appeared in court but didn't mention any mistaken identity. He did request a court-appointed attorney. Later that day Mercado contacted his own attorney who attended a subsequent hearing on the case. At that time a fingerprint analysis was ordered and it was finally revealed that Mercado was not the person who had committed the retail theft. Mercado was later released. Some time later he sued the Village of Addison for false arrest. The defendant moved for summary judgment, arguing that it had probable cause to arrest Mercado. The trial court granted the motion and Mercado appealed.

Plaintiff argued on appeal that the motion for summary judgment should not have been granted, as there were factual questions whether the officers had a duty to investigate his claims of mistaken identity. The defense, in response, asserted that the officers acted in good faith, as the warrant named Mercado and the identifying information on the warrant was correct. In addition, the Village argued that at the time of the arrest[2:30 am]there was no way to investigate the claims of mistaken identity.

The Second District Appellate Court first noted that to succeed on the false arrest claim, the plantiff had to show that he was arrested without any reasonable grounds to believe an offense had been commmittted. [And the Court also noted that because Village had immunity under the Local Governmental and Governmental Employees Tort Immunity Act for any acts or omissions in the enforcement of a law, the plaintiff was obligated to show the officers conduct was wilful and wanton].

The Appellate Court felt that the key issue was whether the the officers reasonably believed Mercado was the fellow named in the warrant. The trial court felt they had - and the Appellate Court agreed. The Court noted that all the info on the warrant[name; DOB; address; Driver's License number; Social Security number; eye color; hair color; height and weight] all matched plaintiff's information. In short, the officers had every reason to believe that they had the right guy. Because Mercado was the individual named in the warrant, the Appellate Court ruled the the officers did not act unreasonably in arresting him. The trial court's ruling was affirmed.

Last week the Illinois Supreme Court heard argument on the constitutionality of the 2005 Illinois legislation capping damages in medical malpractice cases. The law caps non-economic[pain and suffering]awards against doctors are $500,000. In addition, the law caps similar damages against hospitals at $1million.

The argument against caps is twofold. First, caps violate the separation of powers doctrine. The law permits legislators to invade the judicial branch and arbitrarily establish limitations on verdicts. The only body that should ever be allowed to set damages due to medical malpractice is a jury - those individuals who actually sat in the courtroom and heard and saw the evidence and the devastation that victims of malpractice suffer. In addition, caps violate the Illinois Constitution prohibition as to "special legislation". Article IV, Section 13 of the Illinois Constitution says it is impermissible for the State to treat groups of people in different ways. Caps do precisely that - they limit damages that victims of medical malpractic may recover, while not placing a similar ceiling on the damages that victims of different kinds of negligence may recover.

The proponents of caps trot out the same "scare 'em" tactics that were so successful in 2005. Back then, caps supporters insisted that malpractice premiums and huge verdicts were causing doctors to flee Illinois in droves, thereby reducing healthcare opportunities for Illinois citizens. Those arguments have been thoroughly debunked. The number of doctors in Illinois has steadily risen since 1996, according to the American Medical Association[and they should know, shouldn't they?].

Caps have no place in the legal system. The courtroom remains one of the very few places in America where ordinary citizens can bring behemoth corporations and the insurance companies behind them to justice. If caps become the law of the land in medical case, it won't be long before other interest groups mount up to limit damages consumers can get in other cases. Hopefully the Supreme Court will shoot this law down.

Saw an interesting article in the CBA Record by James F. Costello Jr., the Veteran's Rights Project Coordinator at the Legal Assistance Foundation of Metropolitan Chicago. Costello's article discussed the Illinois Family Military Leave Act[The Act]. The Act is fairly new, having just become effective in 2005. The purpose of the Act is to afford leave to employees who wish to visit with spouses or children who have been called into military duty. The article is an excellent primer on the Act. Some of the important points made by Costello include:

1) Leave is extended only to the spouse or parent of a person called to military service lasting longer than 30 days;

2) Only employers with 15 or more employees are covered;

3) The Act extends only to those employees who have worked at least 1,250 hours in the preceding 12 months;

4) Employers with 15-50 employees are required to provide up to 15 days of leave to the employee;

5) Employers with more than 50 employees are required to provide 30 days of leave;

6) The leave is UNPAID;

7) Eligible employees seeking to utilize the leave must give advance notice to the employer[oral notice is acceptable];

8) Upon return from leave, the employee shall be restored to his/her previous position, or to an equivalent position;

9) Employers are prohibited from discharging, fining, suspending or in any other way interfering with the employee's right to utilize the leave;

10) Individuals may enforce their rights under the Act by filing suit in the Circuit Court. The only enforcement mechanism however, is injunctive or equitable relief. The Act does not provide for damages.

The Act, as pointed out by Costello, is particularly timely. The Illinois National Guard is presently in the midst of its largest deployment since World War II, with nearly 3000 soldiers scheduled for deployment to Afghanistan to assist with the growing insurgency.

Check out the August issue of the Illinois Bar Journal for a good article by April Pruitt-Summers on the Illinois Animal Control Act, 510 ILCS 5/1 et. seq. The first thing that caught my eye was the link to a study conducted by pediatrician Jeffrey Sacks M.D. and reported in PEDIATRICS[Vol. 97, No. 6, ppss. 891-95]. The link contains some pretty sobering statistics. From 1989 to 1994, on average, there were 18 deaths per year due to dog attacks. Nearly 60% of those deaths were children under the age of 10. As Ms. Pruitt-Summers notes in her article, dog-bite cases, which are sometimes scoffed at, are now getting much more attention, particularly in light of the attention the media is giving to attacks by "bully breed" dogs.

According to the article, in order to recover under the Act, the plaintiff must prove:

1) an injury, caused by a dog owned by defendant;
2) lack of provocation;
3) peaceable conduct on the part of plaintiff; and
4) the plaintiff was in a location where he or she was entitled to be. 510 ILCS 5/1 et. seq.

As to injury, Ms. Pruitt-Summers notes that an actual bite is not necessary. A plaintiff can be injured simply by colliding with the dog. In addition, "ownership" as used in the Act, doesn't imply actual legal ownership. Instead, the person keeping the dog, or acting as the dog's custodian can be held responsible. Under the Act, the plaintiff is only obligated to prove that the defendant had some measure of control.

With respect to provocation, the analysis is whether the behavior in question is provocative to the dog. As the author explains, in deciding motions based upon provocation, the Court looks at the behavior from the dog's perspective, as opposed to the perspective of the victim. Finally, with respect to the final element, the plaintiff can only recover if he has a right to be where the incident took place. The Act bars recovery to people who are injured while trespassing.

The article is fairly comprehensive and worth a look before filing that dog bite complaint.

And, all this talk of dog bite cases reminds me of a story...

Several years ago, I was prosecuting a dog bite case. The dog in question was an enormous, male German Shepherd. The entire time the defense lawyer kept assuring me that the dog was really quite gentle and wouldn't harm a fly. He was convinced my client had provoked the dog. As it turns out, I secured an order to do an inspection of where the incident took place - the defendant's home. My client had been invited to the home for a business meeting. When I arrived at the home at the appointed hour, just myself and the other lawyer were present. The homeowner had given a key to the defense lawyer. The hound however, was home. And he wasn't in his cage. The defense lawyer inserted the key in the outer door to go inside. Immediately, there was a low, deep, growl on the other side of the door. As the lawyer turned the key, the growl became much louder. Then, the beast began to bark. Short, disturbing, staccato barks, not unlike a hyena. Then came the violent scratching. From my vantage point, the dog had apparently decided to actually eat through the door in order to get to whomever was foolish enough to be on the other side. My defense lawyer friend was frozen in place.

I couldn't resist.

"What's the matter?", I asked. "You said the dog was gentle. Open the door, let's get this over with."

He was having none of it.

"I'm not going in there. We'll wait for the owner to get here".

Shortly thereafter, the case settled.