Can I use the employee restroom?

May 26, 2017 by Levinson and Stefani Leave a Comment

Alana Pilotto v. Urban Outfitters West LLC, 2016 IL App (1st) 160844

In Illinois, businesses must provide all employees, within each place of employment, restroom facilities and drinking fountains. Ill. Admin. Code tit. 77, § 890.810. However, not all businesses are required to provide restrooms for patrons, nor must they allow all patrons to use its employee restroom(s). But in August 2005, Illinois enacted the Restroom Access Act (also known as Ally’s Law) mandating that a business grant access to its employee restrooms to people with Crohn’s disease or other inflammatory bowel diseases if a public restroom is not nearby.

More importantly, the 1st District Appellate Court ruled that the state Restroom Access Act allows for both a common law and private right of action against businesses who refuse to let customers use a non-public toilet. The court came to its conclusion after Alana Pilotto embarrassingly defecated in public because she was denied access to the employee restroom at an Anthropologie store in Oakbrook Center.

Section 10 of the Act sets forth the duty imposed by the Act and provides, in full:

A retail establishment that has a toilet facility for its employees shall allow a customer to use that facility during normal business hours if the toilet facility is reasonably safe and the following conditions are met:

The customer requesting the use of the employee toilet facility suffers from an eligible medical condition or utilizes an ostomy device
Three or more employees of the retail establishment are working at the time the customer requests use of the employee toilet facility
The retail establishment does not normally make a restroom available to the public
The employee toilet facility is not located in an area where providing access would create an obvious health or safety risk to the customer or an obvious security risk to the retail establishment
A public restroom is not immediately accessible to the customer.” 410 ILCS 39/10 (West 2014)

Pilotto and Anthropologie satisfied the statutes’ touchstones. The court reasoned that the language of the Act expressly contemplates civil liability for violations of the Act through section 15, which provides limited immunity for injury caused by a retailer’s compliance with the Act. See 410 ILCS 39/15(a) (West 2014).

There would be no need for immunity if there was no civil liability for a retailer’s conduct under the Act. Therefore, “it would make no sense for the statute to be read in such a way that a retailer can be held civilly liable for its actions when complying with the Act, but could not be held civilly liable for not complying with the Act at all.” Under this implied theory of a private right of action, the case was reversed.

Will new security cameras slow car accidents near Wrigley?

May 24, 2017 by Levinson and Stefani Leave a Comment

The new upgrade could have long-term benefits for the future of Lakeview and crash victims

The Chicago Cubs plan to donate $1 million to install new surveillance around Wrigley Field, a grant that doubles the number of security cameras in Lakeview, according to DNAInfo.

The grant will be presented before the city’s budget committee today, and we’re wondering: What does that mean for one of summer’s busiest and most congested neighborhoods?

The upgrade calls for 30 new cameras to be placed on city-owned light poles along Belmont, Addison, Irving Park Rd., and Lake Shore Drive. Others will be installed on streets farther from the ballpark but within the span of traffic, including west of Western Avenue and extending as far back as the Kennedy Expressway.

Apart from the obvious security upgrade, the cameras could mean more prosecutions for offenders of car crashes, which have been sporadic but frequent over the last few years. Earlier this month, a man was carjacked at gunpoint, leading to a crash on the 3100 block of North Cambridge Avenue; in July of last year, seven people were hospitalized after a Dodge Caravan crashed into a police cruiser while making a left turn from Addison onto Clark St.; and as far back as 2012, two people were hurt when a motorcycle rammed a Mercedes at the corner of Addison and Magnolia.

It’s fair to say that the new cameras won’t explicitly deter or prevent car accidents from occurring around Wrigley in the short-term. But it does open up the possibility that multiple streets will be evaluated in the coming months and years, based on footage of driving patterns, cycling and pedestrian behavior, and the foot-traffic leading up to game days.

It also opens up the possibility for crash victims to definitively collect on impending lawsuits, aided by the use of crash footage, which is overseen by the Office of Emergency Management and Communications, meaning it’s theoretically available via a public records request (something that an experienced injury attorney should be requesting, as Jay recently spoke about during a trip to the New Jersey Association for Justice Boardwalk Seminar last month). And if the city is truly dedicated to its Vision Zero plan, the above-mentioned traffic studies could influence the future landscape of Lakeview, meaning less crashes.

The Cubs have seen a significant jump in attendance and interest since winning the World Series last fall. Despite a relative slow start, the Cubs faithful continue to turn out in droves. They practically inhabit the roads. It’s nice knowing a fresh batch of new cameras have the potential to alleviate some of those fears now and into the future.

Why the Illinois Policy Institute is wrong about workers’ comp costs

May 22, 2017 by Levinson and Stefani Leave a Comment

Trial lawyers aren’t the cause of the state’s manufacturing woes

There’s a myth that trial lawyers are destroying the infrastructure of Illinois because of their greedy, nefarious ways. Once again, that myth rears its ugly head.

On Friday, we came across an article with this headline: Political Cowardice on Workers’ Compensation is Destroying Blue-Collar Jobs. In it, Austin Berg, senior writer for the provocative think-tank Illinois Policy Institute, argues that Illinois’ workers’ comp laws are woefully inefficient and enacted strictly for the purposes of the “powerful trial lawyer lobby” to get rich off local businesses, which in turn stagnates the state’s manufacturing industry.

“The real problem with the system,” according to Berg, “is that the interests of workers and businesses take a back seat to those of trial lawyers and doctors who profit off the system.”

Berg goes on to cite the “flawed” math of trial attorneys, who he says consistently use the insurance industry as a scapegoat for their profiteering ways. He bases part of his logic on new findings from the 2016 Workers’ Compensation Insurance Report from the Department of Insurance, along with four cost drivers that supposedly make state laws so inadequate:

No. 1: The system is a cash cow for trial lawyers

Illinois’ wage replacement rates, which govern the size of settlements, are some of the highest in the nation. Lawyers profit both from the size of those settlements and the generous formula that calculates their share of the prize.

No. 2: Medical benefits are way too expensive

Most states tie their medical fees under workers’ compensation to Medicare. But in Illinois, special interests set prices. As a result, major surgery in Illinois is three times more expensive than the same surgeries under Medicare. Pain management injections are twice as expensive. This is way out of line with other states.

No. 3: Doctors have a financial incentive to overprescribe dangerous drugs

Illinois allows doctors to not only prescribe painkillers out of their offices, but to sell them directly to injured workers at big markups. When doctors are allowed to do this, they prescribe three times as many opioids as they would otherwise. And workers are off the job for 85 percent longer. This drives up the cost of workers’ compensation insurance. It’s also a major worker health issue.

No. 4: Many workers have a financial incentive to stay off work

There are some workers’ compensation cases in which Illinois workers can make more money off the job than on the job. That gives a strong incentive to play up an injury in the first place, and then extend it as long as possible.

But Berg’s argument is odd when you consider that the very insurance report he mentions points to a startling upswing in workers’ compensation profits, practically cementing what trial lawyers have been saying all along: that insurance companies are, in fact, making money off the small businesses they’re supposedly entrusted to protect.

As the Department of Insurance pointed out in its report, workers’ comp insurers saw profits rise by 22 points between 2010 and 2014—from negative 11 percent to a positive 11 percent. The profit from within Illinois jumped by 1.7 percent between 2013 to 2014, compared to just 1.5 percent nationwide during the same stretch of time. To quote the report: “the workers’ compensation market profit within Illinois has demonstrated a significant increase since 2010, virtually matching the countrywide profit in 2013 and 2014.”

In October of 2016, the National Academy of Social Insurance noted that between 2010 and 2014, total workers’ compensation benefits paid per $100 of covered wages actually decreased by $0.23, while employer costs per $100 of covered wages dropped by $0.06 in Illinois, making it the second most profitable line of insurance after auto insurance.

Setting aside the rising bottom lines of insurance providers, we should also look at the workers’ comp system more broadly. Back in 2015, the Washington Post went out of its way to point out statistics from the Department of Labor showing that the country’s legal structure was broken—not with respect to lawyers but the manner in which injury victims are subsequently being driven into poverty for lack of fair compensation. Illinois may be among the country’s leading states paying out for claims, but it’s hardly for unjustified reasons.

Furthermore, from what we can tell, Berg neither cites nor quotes a single trial attorney, medical provider, or victim of a workers’ comp-related case that he so adamantly believes is the root of all that is bad, making his argument ostensibly one-sided and skewed to match a warped degree of the facts.

There are hundreds, if not thousands, of cases going on right now in which state laws work contrary to the needs of those who have suffered life-long, debilitating injuries while simply doing their job.

The state of Illinois certainly has economic and financial problems. Manufacturing is one of them. But for Berg to make such broad characterizations about lawyers, doctors, and injury victims without telling the whole story is its own kind of abuse.

This house bill forces local drivers to keep the headlights on

May 18, 2017 by Levinson and Stefani Leave a Comment

HB 2448, ladies and gentelmen

Here’s something you may not know. The Illinois state legislature is considering a bill that would require Illinois drivers to keep their headlights turned on all the time, even in broad daylight.

Sponsored by Rep. Robert Pritchard (R-Hinckley), House Bill 2448 was narrowly approved 5-4 by the Illinois Transportation Committee back in March. It’s now in the hands of the full House, which has amended the bill twice to date.

“This is an issue where too many people are already violating the law that says you’re supposed to have your headlights on when visibility is limited,” Pritchard told the State Journal-Register shortly after the ITC vote. “People are violating that. You can see that every day when you’re driving on the open road. So that was the genesis for which I bring forward this idea, that if you are visible, other people can avoid you.”

Here’s the bill’s original synopsis:

Amends the Illinois Vehicle Code. Provides that every motor vehicle of the first division or motor vehicle of the second division weighing no more than 8,000 pounds shall at all times exhibit: (1) daytime running lights; or (2) at least 2 lighted head lamps, with at least one on each side of the front of the vehicle, showing white lights, including those emitted by high intensity discharge lamps or lights of a yellow or amber tint. Provides that a violation of the provision is a business offense punishable by a fine of $100. Defines “daytime running lights.”

Good idea or bad idea?

On its face, the proposal seems like a proactive safety measure, despite scrutiny from other House members, including Chicago Rep. Marcus Evans Jr. who says keeping the lights on would be costly for drivers, citing more dead batteries and a lot more stranded vehicles. And that’s not counting a fine that reaches $100 for not obeying the law.

Broadly, however, HB 2448 is likely to fortify an already staunch law that forces all drivers to turn their headlights on during inclement weather or at the first sign of dusk. The notion that drivers will lose money or face the prospect of a dead battery shouldn’t outweigh the benefits, as Pritchard made clear to the Register.

“Motorcycles are required to have a headlight on all the time for visibility reasons, and a car is no different,” Pritchard said. “So let’s look at in terms of the other person, rather than necessarily you, your car and your battery. It’s so that you don’t get hit and maybe have something a lot worse than a burned-out headlight.”

Will Obama’s presidential center really cause ‘carmaggedon’?

May 17, 2017 by Levinson and Stefani Leave a Comment

We predict easy riding, despite the concerns

Something worth doing is worth doing right.

If the prospect of a new, modern development project promises to A) add value to the surrounding community, B) keep people engaged with said community, and C) allow people the freedom to wander the campus without getting hit by a car, then it’s most definitely worth doing right.

Last week, former president Barack Obama ventured to Jackson Park to unveil plans for his much-anticipated presidential center. Among those plans was this: a somewhat controversial revamp of Cornell Drive, located on the east side of what is soon to be Chicago’s next big attraction. The purpose of the revamp, according to Obama, is to create more green space and a safer, more people-friendly environment.

The proposal would include banning all cars from Cornell Drive between 60^th and 67^th streets, allowing Obama and his team to add five acres of parkland for a pedestrian walkway and a children’s play area.

“You can’t have little kids playing right next to the road,” Obama reportedly said at the meeting. “You can’t have sledding into the road.”

You also can’t stop other people from voicing their concerns.

Initial plans for the presidential center has drawn criticism from 5^th Ward Alderman Leslie Hairston, who opposed the idea of shutting down Cornell. She called it a surefire way to ensure a presumably long slog of slow, congested traffic, resulting from drivers who consistently use it as a shortcut from Lake Shore Drive’s 57^th Street exit to the intersection of 67^th and Stony Island Avenue, which then funnels to the Chicago Skyway.

Following the unveiling, the Tribune also had thoughts. On Monday, the paper’s editorial board cited a traffic study from 2014, stating that the daily vehicle count on Cornell was somewhere in the range of 19,300 annually. They labeled those numbers a proverbial bump in the road for the forthcoming center and closed its editorial by saying, “It’s up to Obama and his team, in collaboration with state and local officials, to find an answer better than This’ll just take you an extra minute or three. The South Side wants the library, but its residents also want to keep their work commutes and other car trips tolerable.”

Whatever the concerns, the traffic patterns of the city’s South Side resulting from a redesign of Cornell Drive are likely to be short-term problems for long-term benefits. But don’t take our word for it.

At the meeting earlier this month, Obama pointed out that the length of any additional commute stemming from the new presidential center would be minutes not hours, highlighting a preliminary study by the Illinois and the Chicago departments of transportation, both of which concluded that a revamp of Cornell Drive would add one to three minutes of commute time, at most.

The Illinois Department of Transportation also plans to conduct further studies to ensure commute times remain reasonable. And taking it a step further, Louise Murray, president of the Jackson Park Advisory council, has gone on record saying that she’s wanted to close the road for six years because of how dangerous it is, noting that two children have been hurt crossing the road in the last five years.

Even Hairston came around to the idea, telling DNAInfo “I liked what I saw,” referencing Obama’s unveiling.

And for all its apprehensions, the Tribune editorial noted that the motivation for closing the drive was “sound,” not least because the new presidential center is expected to draw several thousands of people to the Jackson Park location each year, meaning the presidential center needs to be a safe, insulated campus from nearby traffic.

Is the city willing to complicate plans for protected park land for the sake of an admittedly dangerous six-lane road?

Streetsblog proposed this alternative solution when the rumblings of a renovation began to spread back in February: “If we pedestrianize Cornell, a mostly six-lane, highway-like road slicing through one of Chicago’s treasured natural areas, drivers on LSD could instead get off at 57^th and go west to Stony Island, or else take the drive all the way to its southern terminus near 67^th, and then take that street to Stony.”

Then there’s this thorough rebuttal to the Tribune’s editorial, also from Streetsblog, which may be the most definitive point of them all: “But there’s also the phenomenon of traffic evaporation. When driving becomes a little less convenient, people choose to use different travel modes, or opt not to make unnecessary car trips. That’s why, despite gloomy predictions from the media, the Loop never grinds to a halt when multiple downtown streets are closed for construction projects. Instead, more people choose to leave their cars at home.”

Carmaggedon? That’s likely blowing things out of proportion.

Can insurance contracts be challenged in court?

May 15, 2017 by Levinson and Stefani Leave a Comment

How Illinois public policy works in drivers’ favor

If you’ve ever filed an insurance claim, you know that insurance policies have provisions. In the case of American Heartland Insurance Co., one of them is this: a claim must be filed within 120 days of an accident, otherwise the insured forfeits their right to the claim.

The requirement isn’t unique to Heartland, but it was the situation in Smith v. American Heartland Insurance Co., a case in which the plaintiff, Smith, sued the insurance company for failing to make good on the money it owed stemming from a hit-and-run case.

Defending its actions, American Heartland argued Smith wasn’t entitled to receive the money because she filed her claim well after the 120-day provision. This despite Smith proving she had been hampered by extenuating circumstances, including the fact she was covered under two separate insurance policies, which caused confusion as to which policy was responsible for the liability coverage.

In the end, Smith won her case. The courted stated that she acted reasonably and that American Heartland didn’t. American Heartland appealed the ruling, and the Illinois appellate court affirmed, explaining: “the 120-day notice provision Heartland seeks to enforce against Smith is a dilution or diminution of the uninsured motorist statute and is therefore against public policy as applied to her.”

Why Smith’s case matters

To begin, what exactly is the court enforcing? Illinois state law requires every auto policy—one that insures against bodily injury—account for uninsured motorist coverage, protecting drivers from things like hit-and-run crashes. It’s a matter of public policy, according to Illinois law, meaning insurance companies can’t skirt the requirement.

As I said earlier, the Smith case arises out of a provision in American Heartland’s insurance contract that requires the accident victim to file a claim within 120 days of an accident. So why did the court rule in Smith’s favor when it was established that she notified the company after 120 days?

An insurance contract can say one thing (that the company must be notified of a claim within 120 days of a crash, for example), but it can’t account for every version of an event leading up to the deadline, which runs counter to public policy, even if the language of the contract is clear.

I’ll note that challenging a contract on public policy grounds isn’t easy. It interferes with our fundamental freedom to contract. But the concept of public policy is powerful because it works in favor of the average citizen, whereas insurance contracts typically don’t.

Essentially, Smith and her attorney made reasonable efforts to contact American Heartland under the circumstances. The court could not justify taking away Smith’s uninsured motorist coverage for a requirement that she, through no fault of her own, couldn’t adhere to. The court rightly concluded that her insurance company’s strict interpretation of the contract was against public policy and therefore could not be enforced.

Takeaways for drivers

Smith’s case underlies a few basic principles when it comes to insurance contracts and potential lawsuits. First, read your contract from beginning to end. Second, know your coverage and the types of insurance you purchase.

Illinois-insured drivers should, at the very least, carry the same amount of uninsured motorist coverage as liability coverage; it’s state law and policy. More importantly, though, is to realize just how far some insurance companies are willing to go to pay as little on claims as possible, which could leave their policyholders stuck in years of litigation.