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Levinson and Stefani

Speculation and Conjecture in Carson v. All Erection & Crane Rental Corp.

February 17, 2016 by Levinson and Stefani Leave a Comment

Carson v. All Erection & Crane Rental Corp., 2016 WL 413161

A construction worker was injured when a crane malfunctioned and crushed his leg. He sued the rental company for negligence, claiming that they had a duty to inspect the crane and by failing to do so, caused the injury. The district court granted the rental company’s motion for summary judgment. The Court found that no reasonable jury could return a verdict in plaintiff’s favor. Following the accident, the crane was inspected. After hours of attempted accident reconstruction it was determined that the malfunction was intermittent, one that was difficult to replicate and difficult to detect. The malfunction involved the use of the crane’s cruise control.

In summary judgment the non-moving party is entitled to have all reasonable inferences drawn in their favor (Thornton v. M7 Aerospace LP, 796 F.3d 757, 769 (7th Cir. 2015)). The inferences drawn must be reasonable, thus a court may not draw an inference in the non-movant’s favor when the evidence on record leads to many equally speculative conclusions (Foster v. New York Central System, 402 F.2d 312, 313 (7th Cir. 1968)). Proven facts, not mere guess, conjecture, surmise, possibility or speculation, must be the basis for a finding or decision (Halkias v. Gary National Bank, 234 N.E.2d 652, 655 (Ind. App. 1968)). Finally, in the total absence of evidence or reasonable inferences on one or more of plaintiff’s essential elements, the defendant is entitled to summary judgement (Palace Bar, Inc. v. Fearnot, 381 N.E.2d 858, 861 (Ind. 1978)).

The Court assumed a duty to inspect, but held that no reasonable jury could find the rental company in breach for not conducting inspections at the same level as the accident reconstruction. Nonetheless, the Court assumed a breach and examined proximate cause. The Court found that the critical question was how often the crane’s cruise control was used prior to the accident. Plaintiff did not present any evidence as to the frequency that the cruise control was used. Without any record of the frequency, the inferences drawn would rely on mere speculation or conjecture and the plaintiff is not entitled to those.

Click here to read the full case note

Medical negligence at the heart of Gulino v. Zurawski

February 9, 2016 by Levinson and Stefani Leave a Comment

Gulino v. Zurawski, 2015 IL App (1st) 131587

Other than high cholesterol, Matthew Gulino was a healthy 49-year-old father of three and husband to plaintiff Joanne in early 2009. In June, he had a checkup with his primary care physician, which confirmed the same. However, on October 12, Matthew began to experience nausea, fatigue, shortness of breath, chills and lightheadedness. The symptoms persisted and on October 19 Matthew returned to his primary care physician, who ordered an EKG, stress test and partial blood test. The primary care physician diagnosed Matthew with anxiety and prescribed Xanax. On October 21, the doctor suggested that Matthew see a psychiatrist. The next day he sought treatment through Palos Community Hospital’s emergency department. The ER doctor prescribed Matthew a stronger anti-anxiety medication. On October 25, Matthew experienced slurred speech and loss of mobility in his left arm. He was taken to Advocate Christ Medical Center.

Matthew arrived at 8:57 a.m. and underwent tests, including, for the first time, a CBC. The CBC revealed low platelet count and damage to his red blood cells. Further tests discovered liver and kidney failure. The hematologist diagnosed Matthew with Thrombotic Thrombocytopenic Purpura (TTP) sometime after 4:00 p.m. TTP is a rare blood disease with fatal consequences if it’s not diagnosed and treated. TTP is diagnosed with a series of blood tests that includes a CBC. Plasmapheresis or plasma exchange therapy is the only effective treatment for TTP. AES was contacted at 4:30 p.m. to arrange treatment for Matthew and dispatched a nurse at 4:42 p.m. However, the nurse did not arrive at Advocate until 11 p.m., at which time Matthew suffered cardiac arrest. Matthew was pronounced dead at 11:40 p.m. due to multiple organ failure.

Joanne Gulino filed suit against Matthew’s primary care physician, the ER doctor at Palos, Advocate, AES and the nurse that AES dispatched, alleging claims of medical negligence. Specifically, Joanne alleged that AES and the nurse were negligent; that they failed to arrive promptly, failed to enforce a policy in which nurses arrive in a timely manner, failed to respond emergently, or failed to arrange for and provide plasmapheresis as ordered. The case then proceeded to trial.

At trial, testimony revealed that the nurse dispatched by AES did not proceed to Advocate right away, but instead performed a non-emergency procedure at Good Samaritan Hospital. The nurse then went home before going to Advocate. The nurse testified that it was common practice to confirm that preparations, which normally take two hours to complete, are completed before going elsewhere, even in the event of an emergency. She also acknowledged that the “common practice” was not AES policy, but rather put in place as a way to avoid wasting time. The nurse further testified that she made several attempts to contact Advocate to confirm that preparations were complete. At 10:00 p.m., approximately 6 hours after receiving the emergency assignment, she became worried that something went wrong and left for the hospital.

The Defendants appealed for, among other things, the court’s rulings on the scope of expert testimony. They argued first that plaintiff’s causation expert should not have been able to testify to the standards of care of a plasmapheresis nurse. Plaintiff’s causation expert was allowed to testify to his personal experiences with plasmapheresis nurses and use it as a basis to opine about how the doctor could have expected the AES nurse to arrive by 6 p.m. The Court found that the testimony did not constitute standard of care evidence. Moreover, the Court found that any improperly admitted testimony was harmless since it was duplicative of other properly admitted testimony.

The Defendants also argued that the court improperly precluded an expert testimony. The trial court allowed one Defendant’s two experts to opine in an attempt to rebut the Plaintiff’s experts. However, the trial court precluded the other Defendant’s attempt to use its own experts to similarly opine. The Court found that this was an error since each defendant should be entitled to its own defense and rebuttal of the plaintiff’s case in chief. Taylor v. County of Cook, 2011 IL (1st) 093085, ¶ 36. Nevertheless, the Court did not find the error to be have resulted in a prejudicial error warranting a new trial since the facts involved were strongly established by other competent evidence. Lebrecht v. Tuli, 130 Ill. App. 3d 457, 483 (1985).

Click here to read the full case note

Uninsured vs. Underinsured Motorist Coverage

February 3, 2016 by Levinson and Stefani Leave a Comment

We’re often asked to break down the difference between uninsured and underinsured motorist coverage. Jay explains what they are and why it’s important to look over the details with an attorney if you’ve been in a crash.

 

Partner Jay Stefani participates in DePaul Law ‘Writing for Success’ panel

January 28, 2016 by Levinson and Stefani Leave a Comment

Writing-for-Success-Panel

Young scribes heed the word of Jay Stefani

Jay returned to his alma mater, DePaul University College of Law, on Wednesday to participate in Writing for Success, a panel discussion led by DePaul College of Law alumni. Together with four panelists, Jay elaborated on techniques to improve the legal writing skills of aspiring attorneys.

The P2P program has been going on for several years. Students participate in hour-long sessions with a group of practicing lawyers, who discuss tactics that have proven successful in the professional field. That included the dangers of sloppy writing and the impression it can leave among colleagues.

Jay Stefani at DepauL Law Seminar
Partner Jay Stefani participates in DePaul Law ‘Writing for Success’ panel last year

Doing away with bad habits, according to the panel, is the key to a winning argument and a winning reputation. For his own part, Jay talked about the benefits of cutting out distractions to focus on the task at hand. He suggested gathering every piece of information, every piece of paper and every notebook relevant to the situation before sitting down to write.

“There could be fifty things going on, but once I get into that zone, nothing can pull me away from what I’m doing,” he said. “There are lots of benefits to diving in and not coming out until the job is done.”

Clear the aisle: Bulduk v. Walgreen Co.

January 22, 2016 by Levinson and Stefani Leave a Comment

Bulduk v. Walgreen Co., 2015 IL App (1st) 150166

Plaintiff appeals grant of summary judgment in defendant’s favor because plaintiff argues that a genuine issue of material fact existed as to whether a dangerous condition was open and obvious.

While shopping at a Walgreens, the plaintiff noticed and walked around a large, plugged-in cleaning machine in the middle of the aisle. As she was looking for a particular product, without warning or notice, the cleaning machine hit her lower back, causing severe and permanent injuries. The plaintiff sued Walgreens alleging, among other counts, negligence. Walgreens argued that it did not owe the plaintiff a duty because it was using a third-party cleaning company as an independent contractor and therefore exercised no control over their employees.

It is well settled that there is no common law duty to protect invitees against dangers that are either known to them or that are open and obvious. Ward v. K mart Corp., 136 Ill. 2d 132, 142 (1990). However, an exception arises when the land owner has reason to expect that the invitee may become distracted and therefore not discover the open and obvious danger, forget that the danger is there or fail to protect himself or herself from the danger. Id. at 149-50. The supreme court in Ward held that the questions of whether the dangerous condition itself gave enough notice to the invitee, or whether the defendant was required to provide additional precautions, are questions of fact for the jury. Id. at 156.

Here, the plaintiff alleged that she was distracted and failed to notice any danger the cleaning machine posed because she was focused on finding the item she wanted to buy. The Court found it reasonably foreseeable for a customer to be distracted by searching for products and not notice the danger posed by a machine left in the middle of the aisle. The Court determined that the jury should determine whether Walgreens was negligent; a reasonable jury could draw different conclusions from the facts in this case. The Court in part reversed the order granting summary judgment on the negligence count.

Click here to read the full case note

Drivers, keep up with this hashtag during the winter season

January 19, 2016 by Levinson and Stefani Leave a Comment

hashtag-car
Jack Frost is dutifully nipping (rather, biting) at your nose this time of year. As you know, the coldest weather means more accidents on the road. Snow, sleet, ice — it’s all those gloomy factors that can get you into trouble. That’s why it’s in your best interests to keep up with the hashtag #WinterDrivingTip, employed by the National Highway Traffic Safety Administration and a host of other agencies and public service providers to inform drivers of the safe winter driving tips we’re all invariably bound to forget.

Go forth, social media junkies, and take advantage of the benefits of social! (Not while you’re driving, of course.)

#WinterDrivingTip #1

#WinterDrivingTip: The road behind an active snow plow is safer to drive on. Stay behind the plow or use caution when passing.

— NHTSA (@NHTSAgov) January 19, 2016

#WinterDrivingTip #2

#WinterDrivingTip: Keep your gas tank full. You never know when you might get stuck in a traffic jam or snow. pic.twitter.com/JKylNTOtFY — NHTSA (@NHTSAgov) January 14, 2016

#WinterDrivingTip #3

#WinterDrivingTip: Check the road conditions before you leave. You may just decide to stay home. pic.twitter.com/awmWfcTlGT

— Signature Tire (@SignatureTire) January 16, 2016

#WinterDrivingTip #4

#WinterDrivingTip: Always let someone know your route so if you do get stranded, someone can easily find you. pic.twitter.com/2XxBf26QtK — Integra Tire (@IntegraTire) January 15, 2016

#WinterDrivingTip #5

#WinterDrivingTip: Avoid using cruise control when the roads are icy or wet because you could lose traction. pic.twitter.com/OLTdJvpw2a

— Trail Tire Auto (@TrailTire) January 14, 2016

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