ILLINOIS TRANSPORTATION RESOURCES
- 1.1 Statutes of Limitation:
- 1.2 Negligent Entrustment, Hiring, Retention, Supervision:
- 1.3 Course and Scope of Employment:
- 1.4 Comparative Negligence:
- 1.5 Contribution and Implied Indemnity from Third-Parties:
- 1.6 Workers’ Compensation:
- 1.7 Admissibility of Seat Belt and Helmet Use:
- 1.8 Spoliation of Evidence:
- 2.1 Cap:
- 2.2 Joint and Several Liability:
- 2.3 Standard of Proof Required for Compensatory Damages:
- 2.4 Hedonic Damages:
- 2.5 Life Care Plans:
- 2.6 Wrongful Death Standing and Damages:
- 2.7 Punitive Damages:
- 2.8 Offers of Judgment:
- 2.9 Admissibility of Biomechanical Expert Testimony:
- 2.10 Disclosure of Policy Limits Pre-Suit:
- 2.11 Allowable Damages if the Claimant driver is uninsured:
- In Illinois, the Statute of Limitations for a bodily injury claim is two years from the date of the occurrence. 735 ILCS 5/13-202.
- Injury to personal property is five years from the date of the accident. 735 ILCS 5/13-205.
- Breach of contract for intrastate cargo loss is 5 years from the date of the breach for an oral agreement
(735 ILCS 5/13-205) and 10 years if the contract is written (735 ILCS 5/13-206). However, claims for damages resulting from the movement of interstate cargo by a Shipper or an entity subrogated to the Shipper’s rights in the cargo, are governed by the Carmack Amendment 49 U.S.C. § 14706) which preempts State Law claims related to the loss or damage to interstate cargo. The Carmack Amendment provides for a minimum period of limitations for filing a Carmack claim that cannot be abridged by contract. Specifically, 49 U.S.C. § 14706(e)(1) states, “a carrier may not provide by rule, contract, or otherwise, a period of less than 9 months for filing a claim against it under this section and a period of less than 2 years for bringing a civil action against it under this section. The period for bringing a civil action is computed from the date the carrier gives a person written notice that the carrier has disallowed any part of the claim specified in the notice.”
- Employers have a duty to act reasonably in hiring, supervising, and retaining their employees. Van Horne v. Muller, 185 Ill.2d 299 (1998). To recover for breach of a duty of the above-referenced duty, a Claimant must prove that: (1) the employer knew or should have known that an employee had a particular unfitness for his position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the hiring, retention, or failure to supervise; and (3) that this particular unfitness proximately caused the Claimant’s injury. Van Horne, 185 Ill.2d at 309. The proximate causation element is satisfied when the employee’s particular unfitness “rendered the [Claimant’s] injury foreseeable to a person of ordinary prudence in the employer’s position.” Platson v. NSM America, Inc., 322 Ill.App.3d 138 (2d District 2001).
- With respect to negligent entrustment, such a claim “consists of entrusting a dangerous article to another whom the lender knows, or should know, is likely to use it in a manner involving an unreasonable risk of harm to others.” Norskog v. Pfiel, 197 Ill.2d 60 (2001). An essential element of a theory of negligent entrustment is that the person/entity charged with liability has a superior right to control the property at issue. Umble v. Sandy McKie and Sons, Inc., 294 Ill.App.3d 449 (2d Dist. 1998).
a) Where an employer concedes responsibility under a theory of respondeat superior for the negligence of its driver, a Claimant who is injured in a motor vehicle accident with that driver cannot maintain a claim for negligent hiring, retention or negligent entrustment against the employer. Gant v. L.U. Transp., 331 Ill.App.3d 924 (1st Dist. 2002).
- A principal can be held liable for the wrongful conduct of an agent if the conduct is committed within the scope of that relationship. Lang v. Silva, 306 Ill.App.3d 960 (1st Dist. 1999). This is commonly known as the doctrine of respondeat superior. Under a theory of respondeat superior, an employer can be liable for the torts of an employee, but only for those torts that are committed within the scope of the employment. Bagent v. Blessing Care Corp., 224 Ill.2d 154 (2007). An employer’s liability extends to negligent conduct, and even willful, malicious or even criminal acts of its employees when such acts are committed within the scope of the employment. Id.
- The conduct of an employee is within the scope of employment only if: 1) it is of the kind he is employed to perform; 2) it occurs substantially within the authorized time and space limits; and it is actuated, at least in part, by a purpose to serve the employer. Bagent 224 Ill.2d at 164. Conversely, the conduct of an employee is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the employer. Id. Regardless, whether an employee was acting within the course of the employment depends on the employment contract and the nature of the relationship which must exist at the time of, and in respect to, the particular facts of which the injury arose. Id.
a) Whether a purported employee’s acts are within the scope of agency is typically a question of fact unless no reasonable finder of fact could disagree. Wright v. City of Danville, 174 Ill.2d 391 (1996).
b) A scope of employment distinction is a deviation versus a frolic. An employee’s deviation from routine, time, and geographic locations for personal reasons may still be sufficiently related to the employer’s business to subject the employer to liability. Pyne v. Witmer, 129 Ill.2d 351 (1989); see also Williams v. Hall, 288 Ill.App.3d 917 (1st Dist. 1997). Conversely, an unauthorized deviation exceeding the reasonable scope of the employer’s business is referred to as a “frolic.” Id. Liability cannot be asserted against an employer whose employee is involved in a “frolic.” Id. However, a “frolic” can be abandoned if the employee resumes the employer’s business making the employer liable for the employee’s conduct. Id.
- Illinois has adopted the “pure form” of comparative negligence. Alvis v. Ribar, 85 Ill.2d 1 (1981) (holding that contributory negligence was abolished). Subsequently, in 1986, the Illinois legislature enacted modified comparative negligence. Specifically, 735 ILCS 5/2-1116 bars a plaintiff from recovery if he is more than 50% at fault.
- Sudden Emergency Doctrine:
- Originally under Illinois law, contribution among joint tortfeasors was prohibited. This rule was abolished by the Illinois Supreme Court in Skinner v. Read-Prentice, 70 Ill.2d 1 (1978). Now, Illinois provides for the right of contribution between tortfeasors “where 2 or more persons are subject to liability in tort arising out of the same injury . . . even though judgment has not been entered against any or all of them.” 740 ILCS 100/2(a). Significantly, a settling tortfeasor may not recover contribution from another tortfeasor whose liability is not extinguished by the settlement.
740 ILCS 100/2(e); Orejel v. York Int’l Corp., 287 Ill.App.3d 592 (1st Dist. 1997). Further, the party seeking contribution is limited to the amount it paid in excess of its pro rata share.
- If a lawsuit is brought by an injured party, the Contribution Act permits a tortfeasor to assert a claim for contribution via Counterclaim or Third-Party claim. Laue v. Leifheit, 105 Ill.2d 191 (1984).
- A party can recover contribution from a joint tortfeasor where the party has settled with a Claimant and obtained a release that extinguishes the tort liability of the party and the other tortfeasor. Perez v, Espinoza, 287 Ill.App.3d 592 (1st Dist. 1997). However, before a settling party can recover contribution from a joint tortfeasor, there must be a judicial determination that the settlement extinguishes the liability of the non-settling tortfeasor in good faith.
- Illinois also recognizes implied indemnity (commonly known as “active-passive” negligence). Specifically, a theory of implied indemnity involves an active or primary tortfeasor exposing a party who has not personally participated in the wrongdoing to liability and the law implies a contract of restitution. Przybylski v. Perkins & Will Architects, Inc., 95 Ill.App.3d 620 (1st Dist. 1981). However, the Illinois Supreme Court has held that there can be no implied indemnity in absence of a pre-tort relationship between the indemnitor and indemnitee. Van Slambrouck v. Economy Baler Co., 105 Ill.2d 462 (1985).
- The exclusive remedy of an employee against an employer is a workers’ compensation claim. Folta v. Ferro Engineering, 2015 IL 118070.
- Any third-party civil liability claim against an employer of an employee that is injured while in the course of employment can be limited to the amount of benefits such employer has paid out pursuant to the Illinois Worker’s Compensation Act. 820 ILCS 305 et seq.
- However, an employer can contractually waive this cap on civil damages and can expose itself to unlimited civil liability. Kotecki v. Cyclops Welding Corp., 146 Ill.2d 155 (1991).
- In 1985, the Illinois Supreme Court held that evidence of a Claimant’s failure to use a seat belt cannot be utilized by a tortfeasor to demonstrate a Claimant’s negligence for injuries. Clarkson v. Wright, 108 Ill.2d 129 (1985). This was subsequently codified by the legislature in the Illinois Vehicle Code.
625 ILCS 5/12-603.1 ((c) failure to wear a seat safety belt in violation of this Section shall not be considered evidence of negligence, shall not limit the liability of an insurer, and shall not diminish any recovery for damages arising out of the ownership, maintenance, or operation of a motor vehicle.).
a) However, 625 ILCS 5/12-603.1 does not preclude all seat belt evidence. Instead, seat belt evidence merely cannot be used to demonstrate the Claimant’s contributory negligence or mitigation of damages. Walsh v. Emergency One, Inc., 26 F.3d 1417 (7th Cir. 1994) (citing Illinois law). Instead, seat belt evidence has been admitted for other purposes such as to establish whether a Claimant was involved in a frontal or side impact collision. See Bachman v. General Motors Corp., 332 Ill.App.3d 760 (4th Dist. 2002); see also Oaks v. General Motors Corp. 257 Ill.App.3d 10 (1st Dist. 1993) (evidence of seat belt use permitted in this case involving a purportedly defective seat back); Korando v. Uniroyal Goodrich Tire Co., 159 Ill.2d 335 (1994) (seat belt evidence admitted for determination of proximate cause).
- Similarly, evidence of helmet use to demonstrate the Claimant’s contributory fault or mitigation of damages is impermissible. Hukill v. DiGregorio, Ill.App.3d 1066 (2d Dist. 1985).
- Under Illinois law, there is generally no duty to preserve evidence. Boyd v. Travelers Ins. Co., 166 Ill.2d 188 (1995). However, the duty to preserve evidence may arise through contract, statute, a request by Claimant or special circumstances. Martin v. Keeley & Sons, Inc., 2012 IL 113270; see also Kilburg v. Munawar Mohiuddin, Zante Cab Co., 2013 IL App (1st) 113408. Further, a party that has some degree of control over the evidence may voluntarily assume a duty to preserve evidence of potential future litigation by affirmative conduct. Id.; Nelson v. Union Wire Rope Corp., 31 Ill.2d 69 (1964); Jones v. O’Brien Tire & Battery Serv. Ctr., 374 Ill.App.3d 918 (5th Dist. 2001).
- A party raising spoliation of evidence must prove: (1) that the other party owed a duty to preserve the evidence; (2) the party breached that duty by losing or destroying the evidence; (3) the loss or destruction of the evidence was the proximate cause of the non-tortious party’s inability to prove an underlying lawsuit or claim; and (4) as a result, the non-tortious party suffered actual damages. Dardeen v. Kuehling, 213 Ill.2d 329 (2004).
- Under the Illinois Wrongful Death Act, a family member is permitted to recover for pecuniary injuries suffered when a spouse or next-of-kin’s death was caused by a wrongful act of another. 740 ILCS 180/1 et seq. Thus, a Wrongful Death action is brought for the exclusive benefit of the surviving spouse/next-of-kin. 740 ILCS 180/2.
- The type of pecuniary damages permitted in a Wrongful Death action are: 1) the money goods, and services the Decedent customarily contributed in the past and was expected to contribute in the future; and the grief, sorrow, and mental suffering of the spouse/next-of-kin. In evaluating these damages, a jury may consider: 1) the age of the Decedent; 2) the sex of the Decedent; 3) the health of the Decedent; 4) the physical and mental characteristics of the Decedent; 5) the habits of the industry, sobriety, and thrift of the Decedent; 6) the occupational abilities of the Decedent; and 7) the relationship between the lineal next-of-kin and the Decedent. Illinois Pattern Jury Instructions 31.01-31.06. If a Decedent leaves surviving children, then a jury may also consider the instruction, moral training, and superintendence of education a Decedent might have reasonably been expected to give the children had the Decedent lived. Hall v. Gillins, 13 Ill.2d 26 (1958). Additionally, a spouse may recover for loss of consortium. Elliot v. Willis, 92 Ill.2d 530 (1982).
- Where the Decedent has left a direct lineal heir or spouse, there is a rebuttable presumption that there has been a substantial loss by reason of the death. Estate of Finley, 151 Ill.2d 95 (1992).
a) Parents are entitled to this presumption for minor children (minus the costs for projected child-rearing expenses) and adult children (if the adult child is not survived by spouse or children). Bullard v. Barnes, 102 Ill.2d 505 (1984); Stephens v. Trinity Med. Ctr., 292 Ill.App.3d 165 (3rd Dist. 1997); Estate of Finley, 151 Ill.2d at 95.
b) However, siblings are not entitled to this presumption. Jones v. Chicago Osteopathic Hosp., 316 Ill.App.3d 1121 (1st 2000).
- Ordinarily, punitive damages are not recoverable unless the conduct of the tortfeasor is willful and wanton, outrageous, or performed with actual malice, fraud, intentional, or grossly negligent. Loitz v. Remington Arms Co., 138 Ill.2d 404 (1990).
a) Punitive damages cannot be pled at the onset. 735 ILCS 5/2-604.1. Instead, a Claimant must file a Motion seeking to amend the Complaint to add relief for punitive damages and the Court must conduct a hearing in which the Claimant must show a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages. Id.
b) Punitive damages are typically not available in Wrongful Death actions. See 740 ILCS 180/1; see also Mattyasovsky v. West Town Bus Co., 61 Ill.2d 31 (1975). Further, punitive damages cannot be awarded against corporate entities based on a theory of respondeat superior unless Claimant proves some actual fault by a corporate officer (also known as the “complicity rule”). Price v. Highland Community Bank, 722 F.Supp. 454 (N.D. Ill. 1989) (applying Illinois law).
- Punitive damages cannot exceed three times the amount awarded to the Claimant for the economic damages on which the underlying claim is based.
735 ILCS 5/2-1115.05(a). However, the limitations on punitive damages do not apply in a case where Claimant seeks damages where the tortfeasor has been charged and convicted of a criminal act for which a period of incarceration is or may be a part of the sentence.
- Directly assessed punitive damages are not insurable in Illinois as against public policy. Beaver v. Country Mut. Ins. Co., 95 Ill.App.3d 1122 (5th Dist. 1981). Conversely, vicariously assessed punitive damages are insurable in Illinois. Id.
a) The duty of a driver with respect to non-medical emergency situations (i.e. inclement weather conditions, other hazards, etc…), must exercise ordinary care under those particular circumstances that an ordinarily reasonable and prudent driver would exercise. Stowers v. Carp, 29 Ill.App.2d 52 (2d Dist. 1961); see also Guy v. Steurer, 239 Ill.App.3d 304 (2d Dist. 1992) (recognizing the “unavoidable collision” doctrine where a motorist drives into the path of the driver with the right of way and affords that driver no opportunity to avoid the collision).
b) Sudden Medical Emergency/Act of God Defense: An unforeseeable sudden illness which renders a driver incapable of controlling his vehicle is an “Act of God” and can preclude tort liability for a resulting collision. Grote v. Estate of Franklin, 214 Ill.App.3d 261 (2d Dist. 1991). However, liability is only precluded if the alleged “Act of God” constitutes the sole and proximate cause of the injuries. Evans v. Brown, 399 Ill.App.3d 238 (4th Dist. 2010).
Illinois does not have a cap on personal injury claim damages. The Illinois legislature attempted to impose a cap on tort damages which was ruled unconstitutional by the Illinois Supreme Court. See 735 ILCS 5/2-1115.1 held unconstitutional by the Illinois Supreme Court in its decision in Best v. Taylor Mach. Works, 178 Ill.2d 367 (1997). A cap on economic and non-economic damages in medical malpractice actions was also overturned in Lebron v. Gottlieb Mem. Hosp., 237 Ill.2d 217 (2010).
735 ILCS 5/2-1117 provides that a tortfeasor found to be less than 25% at fault for the Claimant’s injuries is severally liable for compensatory damages (i.e. pain and suffering, etc…) with the exception of medical expenses for which the tortfeasor is joint and severally liable.
Illinois Pattern Jury Instruction 30.01 reflects that if liability is found in the Claimant’s favor, then the jury must fix an amount of money which will reasonably and fairly compensate the Claimant for the damages proved by the evidence. The damages claim must be demonstrated beyond the preponderance of the evidence.
a) Illinois adheres to the Collateral Source Rule in that the benefits received by the injured party from a source wholly independent of, and collateral to, the tortfeasor will not diminish damages otherwise recoverable from the tortfeasor. Wills v. Foster, 229 Ill.2d 393 (2008). A Claimant is entitled to present evidence on the total amount of medical services charged (as opposed to the amount paid) for those services that were necessarily incurred because of a tortfeasor’s negligence. Arthur v. Catour, 216 Ill.2d 72 (2005).
b) A tortfeasor can challenge the reasonable value of medical services. Id. However, evidence of the reasonable value of the medical services can be demonstrated by a Claimant presenting evidence that a bill has been paid or testimony of an individual having knowledge of the services rendered, the usual and customary charges, and that an unpaid bill is fair and reasonable. Id.
c) Although the Collateral Source Rule permits a Claimant to present to a jury the total amount of medical services charged for those services as an element of damages and to present a wage loss figure that does not take into account any payments received (i.e. disability insurance) to compensate for the wage loss,
735 ILCS 5/2-1205 allows a tortfeasor to seek a reduction in the amount of recovery awarded a Claimant at verdict, if the request for reduction is filed within thirty days after judgment is entered.
• The reduction under 735 ILCS 5/2-1205 shall not reduce the judgment by more than 50% of the total amount of the judgment entered on the verdict.
Evidence of the costs of Claimant’s future medical care and treatment can be presented via expert life care plan witness. In re Marriage of Zweig, 343 Ill.App.3d 590 (5th Dist. 2003).
Illinois has no Offer of Judgment framework for personal injury claims. However, Offers of Judgment are permitted under the Illinois Code of Civil Procedure, such as for proceedings for the acquisition of property for private ownership and control. 735 ILCS 30/10-5-110.
Biomechanical expert opinion testimony is permissible regarding injury causation forces so long as the expert is not opining to a medical opinion regarding the precise cause of a Claimant’s injuries. See Whiting v. Coultrip, 324 Ill.app.3d 161 (3rd Dist. 2001). However, such testimony must satisfy the Frye Standard of whether the scientific method or technique used to evaluate the causation issue is generally accepted within the relevant scientific community. Id.
An insurer must provide the dollar amount of liability coverage under the insured’s personal private passenger automobile liability insurance policy upon receipt of: a) issues a certified letter requesting such disclosure, and (b) provides a brief description of the nature and extent of the injuries accompanied by a statement of the amount of medical bills incurred to date and copies of the medical records. 215 ILCS 5/143.24(b). Arguably, this requirement does under the Illinois Insurance Code may not be applicable to commercial automobile policies of insurance.
Automobile insurance is compulsory. See 215 ILCS 5/143a and a-2, 625 ILCS 5/7-601; 625 ILCS 5/7-203. However, Illinois does not prohibit recovery of damages in an automobile accident if the Claimant does not have auto-mobile insurance.