Illinois Personal Injury Defense Law: General

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Illinois Law

Illinois Personal Injury Defense Law: General

Personal Injury Defense Law: General

Personal Injury Defense Law: General

As the name implies, personal injuries are injuries to individuals, in contrast to crimes, which are considered wrongful acts against society. The government punishes those who commit crimescriminalswith criminal penalties. For personal injuries, the government does not punish the wrongdoer but gives the victim the right to pursue a private, civil lawsuit, called a tort action, against the wrongdoer. Some wrongful acts are both crimes and torts, and can subject the wrongdoer to both criminal penalties imposed by the government and tort remedies sought by the injured party. This chapter outlines the general legal principles courts use to decide most personal injury cases, and gives an overview of the personal injuries that most often lead to lawsuits.

Personal Injury Law Generally

Most personal injury civil suits are based on the legal premise that when someone does something that harms another person physically, mentally, or financially, the person who caused the loss should compensate the person who suffers the harm for his or her loss. Whether a personal injury suit succeeds depends upon the type of action committed. Sometimes a defendant incurs liability for personal injuries because he or she acted intentionally to harm the plaintiff. A plaintiff alleging intentional misconduct need not compare the defendant's actions to those of a reasonable person, he or she need only show that the defendant intended his or her actions. In a civil lawsuit alleging intentional misconduct, a plaintiff can recover punitive damages in addition to awards for injuries, pain, and suffering. Punitive damages, designed to punish people or organizations for unlawful acts, are often very large sums of money. Strict liability is another theory under which people may incur liability for their actions. Defendants are held strictly liable when their actions were so dangerous that motive or carelessness do not even matter. A third theory of liabilitynegligenceis the most common theory of personal injury liability. Negligence is carelessness or unreasonable behavior by someone with a duty to behave carefully and reasonably. Proving that someone was negligent hinges on the following question: Was the party who allegedly caused the injury behaving as carefully as a reasonable person would have behaved under the same circumstances? If not, then that party has committed negligence. For example, suppose a customer falls and is hurt at a store because the store owner did not repair a defective door. If a judge or jury decides that a reasonable store owner would have repaired the defective door, then the store owner will be found liable for negligence.

The outcome of lawsuits alleging negligence can be difficult to predict because determining how much care a reasonable person would have exercised in the same situation is difficult. The reasonable person standard is vague, imprecise, and apt to be interpreted differently by different people. Often, a practice that seemed reasonable in the past may appear unreasonable with the benefit of hindsight. Finding an attorney who has experience with how juries typically interpret the reasonable person standard in particular cases is, therefore, one of the most important steps in successfully defending a lawsuit alleging negligence.

Burden of Proof

The burden of proof in a personal injury case, as in most civil law cases, is lower than the proof required in criminal law cases. In a criminal case, the state must prove a person's guilt beyond a reasonable doubt. To win a personal injury lawsuit based on negligence, the plaintiff must show that a majority of the evidence shows that the injury was caused by the defendant's negligence. The different burdens of proof mean that a company might be acquitted of criminal charges stemming from its actions and still be found liable in a civil lawsuit stemming from the same actions.

Comparative Fault

Personal injury law attempts to compensate victims whose injuries are caused by another person. If one person clearly causes all of the other person's injury, blame is easy to place. In many other cases, however, the victim's actions help cause the injury or make it worse than it would otherwise be. For instance, a negligent driver might injure a pedestrian who is negligently walking in the street, instead of on a sidewalk where a reasonable pedestrian normally walks. In this case, a judge or jury must calculate how much each party is at fault. Each state has its own rules for calculating damages that can be recovered when a victim is at least partially to blame for his or her own injury.

Illinois has a comparative fault rule. Under the comparative fault rule, the judge reduces the amount of any damage award by the percent that the victim's own actions contributed to his or her injuries. For example, if a jury finds that a plaintiff suffered $100,000 in damages, but was 30 percent at fault, the judge reduces the damage award by 30 percent, to $70,000. However, a plaintiff cannot be more than 50 percent at fault under the law. If a victim is more than 50 percent at fault, he or she collects nothing.

Vicarious Liability

There are several ways that a business can be held liable for the actions of others. All are known as vicarious liability. For example, a company can be held responsible for damage caused by an employee if the company knows that the employee is likely to injure someone but negligently fails to exercise adequate control over the employee. The owner of a vehicle can be held responsible for an accident caused by another person if the owner of the vehicle involved negligently entrusted the vehicle to the driver. Generally, however, a business owner is not responsible for acts committed by independent contractors or others over whom the business has no control.

The most common form of vicarious liability is known by the Latin term respondeat superior. Under respondeat superior, an employer is responsible for negligent actions committed by employees within the scope of their employment. Generally, if a pedestrian is struck and injured by a person driving carelessly, the victim has a claim against the driver. However, if the pedestrian is hit by a person negligently driving a delivery van for his or her employer, then respondeat superior allows the pedestrian to bring claims against both the driver and the employer. Respondeat superior allows a personal injury plaintiff to recover more than he or she might if only an employee were liable. Because employers usually have more money (or better insurance), plaintiffs often focus their recovery efforts on employers. Although an employer may have a cause of action against the employee who exposed the company to liability, employers rarely pursue such actions.

Premises Liability

Premises liability is an area of tort law that governs the duties owed by landowners to persons on their property. Generally speaking, a landowner is liable for anyone injured on the landowner's property and a jury can award damages to the injured person. However, a landowner may not be liable if he or she had no way of knowing about a hazard that caused an accident. No one is responsible if an accident was truly unavoidable, and a plaintiff cannot recover from someone unless the plaintiff can prove fault (strict liability is the only exception to this principle). In general, a landowner is not liable for injuries to a trespasser, although a landowner must take reasonable care to protect persons who are likely to approach a property for legitimate purposes, such as letter carriers or delivery persons. Anyone, even a trespasser, can sue a landowner if he or she is injured by an unjustified hazard on the property, such as a trap designed intentionally to injure people.

Although Illinois does not recognize the "attractive nuisance" theory, a landowner might be liable for injuries to children if he or she fails to take preventative action to avoid injuries that would likely occur to a reasonable child, and if the landowner knew or could have known that the child would likely come onto the property. For example, an apartment complex that maintains a private outdoor swimming pool is obligated to take measures designed to keep out trespassers, such as erecting a fence or having a lifeguard present, because the law assumes that the owner of a pool should know that children will be attracted to a pool and a reasonable child might swim without supervision.

If someone is injured on public land adjacent to a landlord's property, the landlord generally is not legally liable unless he or she did something to cause the injury, such as hitting a passerby with the falling branches of a tree being cut down on the landowner's property.

Business owners can always be sued if their own carelessness or negligence causes others to be injured. Historically this meant landowners were not liable for the actions of third parties they did not control. However, today business owners can sometimes be liable for injuries caused by third parties committing crimes on their property. An increasing number of crime victims are winning lawsuits filed against business owners who did not, in a jury's opinion, take appropriate measures to ensure the safety of their customers. This type of lawsuit extends the landowner's duty to foresee, and take steps to prevent, possible illegal activity on his or her property. An example of this type of case is one in which a person who is attacked in a parking lot sues the lot's owner for failing to provide security measures that might have prevented the attack.

Whether a lawsuit based on premises liability will succeed largely depends on a jury's opinion of whether a reasonable business owner would have foreseen the probability of the crime occurring. For example, if tenants of an apartment building complain several times to their landlord that their security system is not working, and burglars later rob several apartments, the tenants might have grounds for a successful lawsuit against their landlord alleging negligence in failing to fix the security system.

Wrongful Death

A wrongful death lawsuit is a type of personal injury lawsuit filed by the surviving relatives of a person killed by the wrongful act of another. Under Illinois law, any dependent heirs such as sons or daughters of a person killed by a defective product, for example, may sue the manufacturer for the decedent's future income that was lost when he or she died. Surviving relatives may not sue a manufacturer to collect damages for the pain and suffering of the decedent, but the estate of the dead person can sue to collect money needed to pay any bills for medical treatment received by the person before he or she died. A person who files a wrongful death lawsuit after the death of a spouse can sue for damages to recover for loss of companionship, affection, and sexual relations. Illinois recognizes an action for wrongful death of a viable fetus, that is, one that would be capable of surviving outside the mother's womb.

Dram Shop Laws

Dram shop laws are laws that can make a business owner liable for injuries caused by an intoxicated person if the business is responsible for causing that person to become intoxicated illegally. The Illinois Liquor Control Act, known as the Dram Shop Act, gives any person who is injured by an intoxicated person the right to sue not only the intoxicated person, but also the vendor or person who sold the intoxicant and the owner of the premises, if it is in the business of selling liquor for profit. The Dram Shop Act only allows for recovery of actual loss, not for the loss of support. Cases most commonly brought under the Act allege illegal sale of alcohol to minors or sale of alcohol to persons who were obviously intoxicated at the time of sale.

Defenses available under the Act include statute of limitations (usually one year) and that the business establishment reasonably and in good faith relied upon proof of age offered by the person who subsequently became intoxicated. The law states that the only proofs of age sufficient for a business owner to rely upon this defense are:

Any identification issued by a federal, state or municipal government
A valid driver's license
A registration certificate issued under the Federal Selective Service Act
An identification card issued to a member of the Armed Forces