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These materials are in reverse chronological order.  New material is added at the top.  Older material is inserted in the correct chronological spot.  Overruled, modified and/or obsolete material is deleted, revised, consolidated and/or moved, when appropriate.  Citations preceded by <>are linked to the complete court opinion. (NOTE: Some linked court sites are not always available). Wrongful Death Lawyer.                    

The statute of limitations in the UCC for breach of warranty claims, 810 ILCS 5/2-725(1),  applies to personal injury claims. A mother's settlement of her lawsuit for breach of warranty, resulting from the purchase of a used car with faulty brakes, which referred to the personal injuries her minor daughter sustained during an accident caused by the faulty brakes, did not bar the daughter's claim for personal injuries once she reached the age of majority, under the doctrines of collateral estoppel or res judicata.  The 4 year statute of limitation in the UCC was also tolled while the daughter was a minor.  <>Evans v General Motors Corporation et al., ___Ill.App.3d ___, ___ Ill.Dec. ___, ___N.E.2d ___, 2000 WL 794059 (Ill App. 6-19-2000)

Medical malpractice claim against a county hospital and its employees was barred by the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101 et seq.   <>Michigan Avenue National Bank, as special adm'r of the estate of Cynthia Collins v. The County of Cook et al., ____Ill.2d____, ____Ill.Dec.____, ____ N.E.2d____,2000 WL 769211 (Ill. 6-15-2000)

In a medical malpractice case it is not necessary to establish that a nonparty physician was professionally negligent is order to give the sole proximate cause jury instruction, permitting the defense to make the "empty chair" argument.  The defense need only produce evidence that the nonparty physician was the sole proximate cause of the plaintiff's injuries.   <>McDonnell, Ex'r of the Estate of John G. McDonnell, deceased v. McPartlin, ____ Ill.2d ____, ____Ill.Dec. ____, ____N.E.2d ____, 2000 WL 769216 (Ill. 6-15-2000)

The claims of an HMO beneficiary for medical malpractice and fraud against the HMO did not establish a right to recover under ERISA, 29 U.S.C. 1002(1)(a), even though the doctors and the HMO failed to disclose the financial incentives provided by the HMO to the doctors to reduce the expense of diagnosis and treatment.  The HMO was owned by doctors.  The mixed eligibility and treatment decisions made by the HMO, through the doctors, were not fiduciary acts within the meaning of ERISA.   154 F.3d 362 reversed.   <>Pegram v Herdrich, ____U.S.____, 120 S.Ct.2143, 2000 WL 743301, (6-12-2000)

The tort of retaliatory discharge does not apply to claims that an employee was discharged for refusing to dismiss his complaint under the Illinois Wage Payment and Collection Act, 820 ILCS  15/14(c).  The act does not contain either an express or implied civil remedy for damages for a retaliatory discharge.  <>McGrath v. CCC Information Services, Inc, ___ Ill.App.3d ___, ___ Ill.Dec. ___, ___N.E.2d ___, 2000 WL 726282, (Ill.App. 6-6-2000) 

The first female pilot for Continental Airlines filed a claim for sexual harassment  under Title VII, eventually recovering more than $600,000.00.  Blakey v. Continental Airlines, Inc. 992 F.Supp 731 (D.C.N.J. 1998).  While the sexual harassment suit was pending, some of her fellow employees posted allegedly harassing and defamatory messages about her on the Employees' internet bulletin board, which could be read by about 250 Continental employees in New Jersey, and throughout the country.  These fellow employees, defendants, thereby submitted to personal jurisdiction in New Jersey, where plaintiff was stationed at the time.  Even though the bulletin board messages were not posted in plaintiff's actual worksites, there was sufficient nexus between the internet bulletin board and Continental Airlines, to permit plaintiff to proceed on her complaint against her employer and fellow employees for defamation and related torts and for violation of the New Jersey Law against Discrimination, N.J.S.A. 10:5-1 et seq. Judgment of dismissal on the pleadings reversed.  <>Blakey v Continental Airlines, Inc., 751 A.2d 538 (N.J. Sup. Ct. 6-01-2000).

A claim for defective design resulting from failure to equip an automobile with airbags, under District of Columbia tort law, was preempted by a Department of Transportation standard requiring driver's side airbags in some, but not all, 1987 automobiles, even though the claim was not preempted by the express preemption section of the National Traffic and Motor Vehicle Safety Act, 15 U.S.C. 1392(d), 1397(k).   166 F.3d 1236 affirmed.  <>Geier v American Honda Motor Co., ____U.S.____, 120 S.Ct. 1913, (5-22-2000)

The federal railroad safety act preempts state law concerning a railroad's failure to maintain adequate warning devices at crossings where federal funds have partially paid for the devices' installation. Federal preemption law applied.  People injured in crossing collisions may no longer recover in many cases.  <>Norfolk Southern Railway Co. v. Shanklin, _____ U.S. ________ 120 S.Ct. 1467 (2000)

A college student raped by two other students filed an action for personal injuries under 42 U.S.C. § 13981, which provides a federal civil remedy for the victims of gender-motivated violence. The Supreme Court determined that this section was unconstitutional because it plainly acceded congress' constitutional bounds. It was not authorized by either the commerce clause or Section 5 of the Fourteenth Amendment, citing <>United States v. Lopez, 514 U.S. 549 (1995); <>Civil Rights Cases, 109 U.S. 3 (1883) and<>City of Boerne v. Flores, 521 U.S. 507 (1997);    <>United States v. Morrison et el., ____ U.S. ______, 120 S. Ct. 1740, 2000 WL 574361 (5-15-2000)

A telephone pole is a product for products liability purposes. A runaway van struck a guy wire supporting a pole. The pole snapped causing the telephone wires it was supporting to sag onto the highway which then caused an automobile accident resulting in a claim for products liability damages.  The manufacturer argued the pole was not a product, but a structural improvement to realty. Bell v. T.R. Miller Mill Co., Inc., ______ So. 2d _____, 2000 WL 127191 (Ala. 2000)

A passenger injured in an automobile that collided with a snow plow was able to avoid the $100,000.00 limit on claims against the State of Missouri by suing the snow plow driver, who was indemnified by the state. The Sovereign Immunity Doctrine did not preclude the plaintiff from recovering the full $250,000.00 award in this fashion. <>Cottey v. Schmitter, _______ S.W.3d _______, 2000 WL 387059 (Mo. App. 2000). Wrongful Death Lawyer.

An insurer may not require attorneys selected by it to represent its insured's to first obtain the insurer's permission before employing the defense tactics the attorneys believe to be appropriate. The insurer also may not submit the defense attorney's bills to a third-party auditor for review without contemporaneous consent of the fully informed insured. The insured is the sole client of the defense attorney, appointed by the insurer. Restatement (Third) of the law governing lawyers, § 215.  In the Matter of the Rules of Professional Conduct and Insurer Imposed Billing Rules and Procedures, 2000 MT 110, 2 P.3d 806,  (Mont. 2000) 

Even when state hospitals are immune from tort suits under state law, they may be sued for claims under the federal emergency medical treatment and active labor act, under federal preemption law; 42 U.S.C. § 1395 dd;  <>Root v. New Liberty Hospital District, 209 F. 3d 1068, 2000 WL 351712 (8th Cir. 2000)

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An employee of a subcontractor injured on a construction site could recover from the owner, in common law negligence, where the owner retained control over the burn and welding work, which caused the injuries. This is an exception to the general rule, under independent contractor law, that a party which employs an independent contractor is not liable for the acts or omissions of the contractor. <>Brooks v. Midwest Grain Products of Illinois, 311 Ill. App. 3d 871, 244 Ill. Dec. 557, 726 N.E.2d 153 (Ill. App. 2000)

A New York City medical examiner was held to be immune from a civil lawsuit for damages that resulted when the medical examiner misdiagnosed the cause of death of a child, reporting, incorrectly, that the death was a homicide caused by "blunt injuries" to the neck and brain, allegedly resulting in wrongful death damages.  A subsequent autopsy revealed that the child died from a ruptured brain aneurysm, not from blunt trauma. The child's parents filed an action for intentional and negligent infliction of emotional distress damages. The New York State Court of Appeals (New York's highest court) determined that the medical examiner owed no duty to the parents to avoid causing emotional distress damages, reversing Lauer v. City of New York, 258 A.D. 2d 92, 693 N.Y.S. 2d 167, N.Y. Slip OP. 06395 (N.Y.A.D. 2 dept., 6-28-99, No. 97-02327);  Edward G. Lauer v. City of New York, 95 N.Y.2d 95 , _______ N.Y.S. 2d ______, 2000 WL 633050,  2 No. 59, (5-16-2000)

In a medical malpractice action for wrongful death damages,  the Pennsylvania Supreme Court determined that an expert witness (for the defense) could testify on direct examination from a "learned treatise" as a limited exception to the hearsay rule for the purpose of explaining his opinion testimony about medical malpractice damages.    <>Aldridge v. Edmunds, 750 A. 2d 292, 2000 WL 509876 (Pa. 2000)

A wife recovered actual and punitive damages from a hospital which sent her medical records to the attorney for her husband, in a divorce action, instead of appearing at the scheduled deposition pursuant to a subpoena. This violated the hospital's duty to the patient-wife to keep the records confidential until and unless her oppenenant in litigation established its right to obtain those records in an appropriate proceeding. Here the wife was provided no opportunity to contest the release of her records. The wife recovered $10,000.00 in actual damages and $375,000.00 in punitive damages which were reduced by the trial court to $25,000.00, by granting remittitur. Both parties appealed. The judgment was affirmed. <>Fierstein v. DePaul Health Center, ____ S.W. 3d ____,2000 WL 556605,  (Mo. App. 5-9-2000)

A swimmer may sue the state of Florida for injuries suffered at a public beach which the state allowed a city to operate as a public beach in return for 25% of the revenues. <>Florida Department of Natural Resources v. Garcia, 753 So. 2d 72 (Fla. 2000). Wrongful Death Lawyer.

Where a nightclub's bouncers knew that 2 customers ejected from the club after a physical altercation were just outside, intoxicated, combative and angry, in a public area in which the club had erected barriers to control traffic, it was reasonably foreseeable that another customer (the plaintiff) would be attacked upon exiting the club. The nightclub owed a duty of due care to the plaintiff to guard against such occurrence. Directed verdict for the defendant reversed and new trial ordered. <>Osborne v. Stages Music Hall, Inc., 312 Ill. App. 3d 141, 244 Ill. Dec. 753, 726 N.E. 2d 728 (Ill. App. 2000)

A motorist hit by another car at an intersection with a broken traffic light could sue the State of Missouri for creating the dangerous condition, as an exception to the immunity provided by the State Tort Claims Statute. <>Williams v. Missouri Highway and Transportation Comm'n, 16 S.W. 3d 605, 2000 WL 103950 (Mo. App. 2000)

A golfer who hit a second tee shot after members of his foursome had already started down the fairway, striking one of them in the face, could be sued for ordinary negligence. Reckless conduct is not required. <>Schick v. Ferolito, 744 A. 2d 219 (N.J. App. 2000)

The Food and Drug Administration lacks authority to regulate tobacco as an addictive drug.<> FDA v. Brown & Williamson, 120 S.Ct. 1291, ______, U.S._____ (2000)

The Missouri Supreme Court held the Missouri dram shop act unconstitutional. It required a conviction or suspended imposition of sentence, for selling liquor to an intoxicated person, before civil liability attached. R.S.Mo. § 537.053.3 and § 311.310. As a result a wrongful death action against a restaurant which served beer to a driver after he was allegedly, obviously, intoxicated may proceed. <>Kilmer et el. v. Hui Chan Mun and Stefanina's Pizzeria & Restaurant, Inc., 17 S.W. 3d 545, (Mo. 5-9-2000)

An injured motel customer successfully stated a claim against the motel owner for negligence where plaintiff sustained severe burns as a result of bathing in water from the bathtub faucet heated to 170 degrees which caused instantaneous injury. The motel owners and the heater manufacturers owed a duty of care to the motel guest. The plaintiff failed to state a claim, however, under the res ipsa loquitur doctrine or for products liability damages.  <>Carroll v. Faust et el., 311 Ill. App. 3d 679, 244 Ill. Dec. 291, 725 N.E. 2d 764 (Ill. App. 2000)

Where a mother converted assets from her sons' estate, her daughter could recover punitive damages under a conversion theory, in a discovery of assets case under R.S.Mo. § 473.340.  <>Williams-Payton v. Williams et el., 12 S.W. 3d 302 (Mo. banc 2000)

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A $400,000.00 jury verdict in an injury injury case was reversed because the Trial Court refused to admit evidence of the plaintiff's intoxication. The plaintiff was playing softball at a picnic when he was hit by an all terrain vehicle driven by the defendant causing a serious leg injury. Plaintiff was running backwards, attempting to catch a fly ball, when the accident occurred. William Harper, Jr. v. Waste Systems, Inc. and Duane Pruim,  unreported rule 23 order, 1-98-4225, (Ill. 1st. Dist., May, 2000)

The statute of limitations applies to claims of sexual abuse (by a priest) from the date of the abuse (or the date the plaintiff achieves adult status) not from the date the plaintiff's repressed memory is revived (30 years after the occurrence).  <>H.R.B & B.B. v. Archbishop Justin Rigali, In His Representative Capacity for the Archdiocese of St. Louis, 18 S.W. 3d 440, (Mo. App. 2000)

A construction firm used improper electrical equipment during tunnel construction resulting in a methane gas explosion and the death of three employees.  The engineering services contract between the owner and engineering firm had the usual clauses imposing no responsibility on the engineers for the safety practices of the contractors and permitting only the owner to stop work.  The engineer was required to redesign work, when requested by the owner, which was underway at the time of the explosion.  OSHA issued a citation to the engineering firm, finding that it was actually involved in construction activities at the time of the explosion.  The Court of Appeals vacated the citation, finding that while the engineering services and other contracts do not per se exclude design and other professionals from liability for OSHA construction standards, in this case the engineering firm was not engaged in construction work and thus was not subject to  OSHA construction standards.  <>CH2M Hill, Inc v. Alexis Herman, Secretary of Labor, et al., 192 F.3d 711 (7th Cir. 1999)

ERISA did not preempt state law in an action for medical malpractice damages, which was based on the vicarious liability of an HMO. Federal preemption law did not apply; 29 U.S.C. § 1001 et seq; <>Hinterlong v. Baldwin et al., 308 Ill. App. 3d 441, 241 Ill. Dec. 860, 720 N.E. 2d 315 (Ill. App. 1999)

A hospital may be held vicariously liable under the doctrine of apparent agency for the negligent acts of a physician providing care at the hospital, irrespective of whether the physician is an independent contractor. This is an exception to the general rule under independent contractor law. <>Scardina v. Alexian Brothers Medical Center, 308 Ill. App. 3d 359, 241 Ill. Dec. 747, 719 N.E.2d 1150 (Ill App. 1999)

The Illinois Nursing Home Care Act does not imply a private cause of action for nursing home employees who are retaliated against by their employer. Section 3-608 of the Nursing Home Care Act provides that a nursing home facility shall not retaliate against a resident or an employee or agent who makes a report under the act. <>Fisher v. Lexington Health Care, Inc., 188 Ill 2d 455, 243 Ill. Dec. 46, 722 N.E.2d 1115 (Ill. 1999)

A reasonable 14-year-old would appreciate the open and obvious risks involved in using a trampoline. Neither the manufacturer nor the owner of the trampoline had a duty to warn of any threat of injury posed by using the trampoline. <>Ford v. Nairn, 307 Ill. App. 3d 296, 240 Ill. Dec. 432, 717 N.E.2d 525 (Ill. App. 1999)

In Illinois HMO's may be held vicariously liable for malpractice damages, in an action against a physician and others for their alleged negligence in failing to timely diagnose the plaintiff's cancer. The HMO could be vicariously liable under the doctrines of apparent authority and implied authority. <>Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 241 Ill. Dec. 627, 719 N.E.2d 756 (Ill. 1999)

The attorneys fee portion of an injury injury recovery is not taxed as income to the plaintiff, in the sixth circuit. The plaintiff is taxed only on the net amount of the recovery, after deducting the amount paid the attorney (frequently one-third plus expenses).  Awards for "physical injuries" are excluded from income, but other injury and wrongful death damages, including emotional distress damages, in some cases, are not. 26 U.S.C. § 104(a)(2). When the full amount is taxed to the plaintiff (for recoveries for non-physical injury damages) the amount paid the attorney may be deducted as an expense. The result, however, often imposes a tax on the plaintiff for the amount paid the attorney under the alternative minimum tax rules. The sixth circuit ruled that the common law and statutory rights of attorneys to have an "attorney's lien" on the recovery precluded that part of the recovery from being considered income to the plaintiff.<>Estate of Clarks v. United States, 202 F. 3d 854 (6th Circuit 1999)

Where no willful or wanton conduct is alleged and where the land has been opened for recreational purposes without imposition of any charge, the Illinois recreational use of land and water areas act provides immunity without reference to whether such use is on a casual basis. Willful and wanton misconduct by the land owner/possessor must be established for liability to attach. <>Fraser v. Universities Research Association, Inc., 188 Ill. 2d 444, 242 Ill Dec. 612, 721 N.E.2d 1143 (Ill. 1999)

A plaintiff must plead and prove physical contact or the threat of physical contact before he can recover for intentional infliction of emotional distress damages under the Federal Employers Liability Act, 45 U.S.C. § 51 et. seq. <>Wilson v. Norfolk & Western Railway Co., 187 Ill. 2d 369, 240 Ill. Dec. 691, 718 N.E.2d 172 (Ill. 1999)

A physician was entitled to recover the amount due him out of an injury recovery under his physician's lien on the proceeds, notwithstanding technical deficiencies in the lien, under a conversion theory against the plaintiff's attorney, recovering both actual and punitive damages. <>Cirrincione v. Johnson, 184 Ill. 2d 109, 234 Ill. Dec. 455, 703 N.E.2d 67 (Ill. 1998)

A hospital was held vicariously liable for the acts of a doctor even though a contract between the hospital and the doctor identified the doctor as an independent contractor, relying on independent contractor law, where the  patient was unaware of the contract. <>Dahan v. UHS of Bethesda, Inc., 295 Ill. App. 3d 770, 230 Ill. Dec. 137, 692 N.E.2d 1303 (Ill. App. 1998)

A commercial bathing beach owes a duty of due care to an experienced swimmer, from the risks associated with diving into the water from the shoreline, near a submerged and unmarked pipe that was not visible from the surface. Order Dismissing the Complaint reversed. <>Barbara Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 235 Ill. Dec. 905, 706 N.E.2d 460 (Ill. 1998)

A plaintiff truck driver injured his back when he slipped and fell on waste material near a compactor container on the defendant's premises. Under the "deliberate encounter" exception to the open and obvious exception to defendant landowner's duty, defendant had a duty of due care to the plaintiff. The verdict and judgment on this issue were affirmed. <>LaFEVER v. Kemlite Co., a division of Dyrotech Industries, Inc., 185 Ill. 2d 380, 235 Ill. Dec. 886, 706 N.E.2d 441 (Ill. 1998)

Contracts to provide malpractice expert witnesses on a contingent fee basis are void and unenforceable in Illinois. The choice of law and choice of forum clauses requiring suit in Virginia and application of the law of Virginia are also void as against public policy. <>First Nat'l Bank of Springfield, as Guardian v. Malpractice Research, Inc., 179 Ill.2d 353, 688 N.E.2d 1179, 228 Ill. Dec. 202, 70 A.L.R. 5th 759 (Ill. 1997)

Communications between an insured, the insurer and the attorney selected by the insurer to defend the insured are privileged communications because of the "common interests" of the parties. <>United States v. Mass. Inst. of Technology, 129 F.3d 681 (1st Cir. 1997)

The Trial Court erred by failing to admit evidence of an injured passenger's consumption of alcohol and evidence of alcohol consumption by nonparty witnesses in an injury action for products liability damages. New trial granted. The alcohol consumption by the passenger was considered relevant to the passenger's possible contributory negligence in causing the accident in which the automobile tipped over. Rodriguez v. Suzuki Motor Corp., 936 S.W. 2d 104 (Mo. banc 1996)

An excavation company worker was killed when a trench collapsed at a sewer installation site.  The engineer could be held liable in negligence where its contract imposed responsibility for the progress of the work, but not for safety conditions.  Here the engineer was aware that the trench was unsafely constructed.  The contract clauses under which the general contractor and owner indemnified the engineer were also void as against public policy. <>Carvalho v. Toll Brothers and Developers, et al., 675 A.2d 209 (N.J. 1996)

State strict liability, products liability damages and breach of warranty claims against a pacemaker manufacturer were not preempted simply because the federal food and drug administration had approved the devices.  Federal preemption law did not apply.  21 U.S.C. § 360k(a); <>Weiland v. Telectronics Pacing Systems, Inc., 188 Ill. 2d 415, 242 Ill. Dec. 618, 721 N.E.2d 1149 (Ill. 1999); <>Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)

In Kentucky, insurers are prohibited from using "in-house" attorneys to represent their insured's. American Insurance Ass'n v. Kentucky Bar Ass,n, 917 S.W.2d 568 (Ky. 1996)

An insurer's use of "in-house" attorneys to represent its insured's is not a per se ethical violation. However, the attorneys owe their undivided loyalty to the insured, and any policy of the insurer which interferes with that duty would violate public policy. Petition of Youngblood, 895 S.W.2d 322 (Tenn. 1995)

A principal cannot delegate to an independent contractor (and thereby avoid liability under independent contractor law) the manner of performance of duties imposed on the principal by contract, ordinance or statute. General Finance Corp. v. Smith, 505 So. 2d 1045 (Ala. 1987); Restatements Second of Torts, § 424; Fulton v. Anchor Savings Bank, 452 S.E. 2d 208 (Ga. App. 1994)

Physicians owe patients a fiduciary duty to keep their medical conditional confidential. The privilege is waived if the patient files a lawsuit, putting that medical condition at issue. A physician can be held liable for resulting damages for breaching the fiduciary duty. Brandt v. Medical Defense Associates et al., 856 S.W. 2d 667 (Mo. banc 1993)

The Federal Cigarette Labeling and Advertising Act, as amended by the Public Health Cigarette Smoking Act of 1969, 15 U.S.C. § 1334, preempts state law claims based on failure to warn or on the federally mandated warnings, under federal preemption law, but does not preempt state law claims based on express warranty, intentional fraud, misrepresentation or conspiracy. <>Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992)

An exculpatory clause in an agreement to rent a horse (for riding) was enforceable. Plaintiff's common law negligence claim against the horse owner, for injuries suffered during the ride, was barred. Harris v. Walker, 119 Ill 2d 542, 116 Ill. Dec. 702, 519 N.E. 2d 917 (Ill. 1988). Exculpatory clauses are not favored and must be strictly construed against the benefiting party, particularly the one which drafted the release. Scott & Fetzer Co. v. Montgomery Ward & Co., 112 Ill. 2d 378, 98 Ill. Dec. 1, 493 N.E. 2d 1022 (Ill. 1986)

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