Cases

Partial Cause v. Sole Cause: Why your insurance company can’t shift the burden to you

January 9, 2017 by Levinson and Stefani Leave a Comment

Imagine going out to play a game of basketball with your crew. In the heat of the game you tear your Achilles tendon. You’re in pain, but you can rest knowing that your insurance will cover the surgery.

Six days later you have a routine and “uneventful” surgery to repair the tendon and you’re discharged on the same day. However, a couple of weeks later, and after a follow-up with your doctor, you collapse at work, go into cardiopulmonary arrest, and die.

The representative, and beneficiary, of your estate files a claim with your insurance company that purports to provide accidental death and dismemberment coverage for the company’s employees, in the amount of $92,000. However, they deny the claim because your late spouse’s coverage is limited to “bodily injuries. . . that result directly from an accident and independently of all other causes.” The insurance company argues that the basketball player’s death was not the exclusive result of the accident, but additional complications at surgery caused the death. Your representative sues the insurance company on a causation theory—but if not for the Achilles tendon accident, that required surgery, your spouse would not have died.

In a recent case, the 7th U.S. Circuit Court of Appeals was faced with this exact scenario. The lower court ruled in favor of the insurance company, but the 7th Circuit panel was not convinced that that was the right outcome. Judge Posner, writing for the court, explained that the evidence suggesting that the basketball player’s death was caused by a blood clot was inconclusive—it did not show that the blood clot was an independent cause, but merely a partial cause of the ball players death. The court focused on the chain of events that led to the ball player’s death. It concluded that the blood clot was “partial because the accident had to have played a role; no accident, no surgery or immobilization, hence no deep vein thrombosis or pulmonary embolism (blood clot).”

The court struck down the insurer’s arguments that the beneficiary had to prove that no other events played a role, and that the company had the “discretion to decide what evidence was sufficient to demonstrate a disability.” The court wrote that such burden of proof and discretion is illusory because it would give the insurance company unchecked carte blanche to decide whether to honor its contract.

Because the insurance company failed to make any plausible showing that the surgery, rather than the accident that necessitated the surgery, caused the basketball players death, the 7th Circuit Court of Appeals held that the judgment should have been in favor of the plaintiff beneficiary.

Heeding the fine print: Belot v. LTF Club Operations Co., Inc

January 6, 2017 by Levinson and Stefani Leave a Comment

On January 1st, many anxious and determined individuals stepped into health clubs across Illinois to embark on one of the most common New Year’s Resolutions—lose weight and get in-shape. Several clubs will market the opportunity for business by giving away free day or week guest passes to a potential new comer and/or repeat customers. However, before you step-foot into one of these big-box sweat machines to redeem your free guest pass, take a moment to read the fine print; and do not deviate from its instruction(s).

Four months ago, a district court judge ruled that the plaintiff (gym guest) was legally a trespasser when he tripped over some cables and injured himself at Life Time Fitness Club in an Illinois Suburb and, therefore, could not hold the defendant-company liable. Mr. Belot, the plaintiff, went into a local Lifetime Fitness to check out the facility. He waited to be greeted at the front desk, but no one was there. He decided to take a self-guided tour and in doing so tripped over a few cords while trying to test an elliptical machine.

The court emphasized that one’s status as an invitee can changed if he or she fails to satisfy any condition set forth in the invitation. The court conceded that the “[p]laintiff was arguably an invitee when he entered the gym: he received a guest pass in the mail, which was an express invitation, and the purpose of that invitation was ultimately to enroll him as a gym member, which is directly related to Defendants’ business.” However, the court continued its analysis and explained that “invitees may nonetheless lose their status and become trespassers when, after being invited onto the premises, they go to an area beyond the scope of an invitation or otherwise deviate from conditions of that invitation.”

The court held that Mr. Belot went beyond the scope of the guest pass when he ignored a clause in the invitation that required all guests to present a photo ID and take a membership tour. Therefore, he could not hold Life Time Fitness liable for the injuries he sustained while on his exploration of the facility.

The public duty rule in Coleman v. East Joliet Fire Protection Dist.

March 1, 2016 by Levinson and Stefani Leave a Comment

Coleman v. East Joliet Fire Protection Dist. 2016 IL 117952

“Hurry” was the last word uttered by Coretta Coleman, as she attempted to get help. She dialled 911 at 6:10 p.m. in early June of 2008. Coretta told the 911 operator that she was unable to breathe. She asked for an ambulance and provided her address, telling the operator to hurry. The 911 operator put her on hold and then transferred the call to another operator. The initial 911 operator did not convey the information provided by Coretta to the new operator, despite policy directing operators to do so. The new operator never heard Coretta’s voice and, twice, attempted to call the number back, only to receive a busy tone. The new operator dispatched an ambulance at 6:13 p.m. and labeled it an unknown medical emergency.

At 6:19 p.m. the East Joliet Fire Protection District ambulance arrived Coleman’s residence, but after attempting to enter the house they were ordered to leave by their supervisor. Afterwards, neighbors called 911 to ask for police to open the Coleman’s door for another ambulance. At 6:37 p.m. the initial 911 operator called the second operator and told him the nature of the earlier call. The second operator then asked for the information again, in order to send another ambulance to Coretta. The initial operator did not give the entire address and the ambulance was erroneously dispatched, causing the ambulance to arrive at the correct address 11 minutes later than normal. At 6:51 p.m., 41 minutes after Coretta asked the operator to “hurry,” ambulances arrived to find Mr. Coleman pulling into the driveway. He let the paramedics in, but his wife was unresponsive and was later pronounced dead at the hospital.

Mr. Coleman sued East Joliet Fire Protection District, its ambulance crew, Will County, the two 911 operators, and Orland Central Dispatch. Mr. Coleman alleged that all were negligent and/or willful and wanton in their acts and omissions that ultimately deprived his wife of a fighting chance to live. The circuit court of Will County granted the Defendants summary judgment, which essentially ended Mr. Coleman’s case. The appellate court affirmed the decision and Mr. Coleman appealed to the Illinois Supreme Court, which agreed to hear the case.

Typically, governmental entities and their emergency response personnel are immune from civil liabilities arising from negligence in providing emergency response services. Pursuant to a series of statutes and a concept known as the public duty rule, claims against many public entities (and their personnel) typically fail because the public entities and personnel do not owe specific individuals any legal duty. Moreover, even if a duty is owed, the statutes immunize the public entity for conduct that does not rise to that which is willful and wanton.

A segmented and heated Supreme Court controversially abolished the public duty rule. The Court departed from stare decisis—the idea that previous court rulings guide new court rulings—and argued that the public duty rule was causing inconsistencies within the court system, that the public duty rule was against public policy, and that the public duty rule was made obsolete by statutes enacted by the legislature. The majority decision, which received less support than the dissent, concluded that these cases are best determined by application of conventional tort principles in conjunction with the statutes that afford immunities, rather than a common law tool that precludes a finding of duty for public entities.

Mr. Coleman has since passed away but this Supreme Court ruling gives his estate the opportunity to make its case in court.

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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.

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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).

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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.

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