Illinois Lawyer Referrals and Legal Guidance

A law in Illinois with a very ominous name—the Dead Man’s Act—is very much alive in courtrooms throughout the state.  It comes into play where one of the parties to a lawsuit is deceased, and the other wants to testify about conversations or events that happened with the deceased.  It is intended to prevent adverse parties in a lawsuit from making things up that the person, if he or she was alive, could dispute but cannot since he or she is dead.

Though it is supposed to level the playing field for the person who is not there to tell his or her side of the story, it can often actually put the other party at a disadvantage.  In a car accident case, for example, where there was no other witness besides you and a person who is now deceased, you could be barred from testifying about many aspects of the event that would otherwise be typical evidence to help prove your case.

If the decedent admitted something to you right afterwards that would impact your case, you cannot generally testify to that.  Also, you generally cannot testify about your observations about the events just before, during, and after the crash.  If you saw the other driver swerve, or brake too late, or go through a red light, you may be barred by the Dead Man’s Act from bringing that to the trial.

Recently, an Illinois car accident case addressed this exact issue.  The plaintiff was not allowed to testify to facts about the speed of the decedent’s car, how he controlled his car, whether he provided any warnings or proper lookout for other cars, and what the traffic light indicated immediately before and during the accident.

There was one small opening, though, that this plaintiff and others are often able to move through.  He could testify about conditions that the decedent could not have observed for himself.  Basically, this means that if some fact happened in the presence of the decedent, and he or she could have disputed what you are saying, then you likely cannot testify about it.  But if it is clear that the decedent could not have rebutted what you are saying because he or she would not have been able to observe it, then you may be able to use that fact in your case.

For example, a plaintiff could testify about his knowledge and observations of the intersection generally, and how the traffic signal operates.  He might also be allowed to testify about his own actions driving his car, that did not happen in the decedent’s presence; such as the mechanical condition of his car, whether he heard anything before or what he could have seen, and if his foot was on the brake pedal.

These issues can seem like hair-splitting, and they often are.  The Dead Man’s Act is a well-intentioned law to protect the rights of those who cannot speak for themselves.  But, unfortunately, it can silence those who might otherwise have something important to say to the court that they may need to help them in their case.

1/26/12

When an accident happens, if someone else is at fault, they generally have responsibility for paying money damages if a lawsuit is brought against them.  But if an accident happens on public property, then your chances of winning a case are drastically reduced.

This was the conversation I had recently when I was contacted by a man who suffered serious injuries from falling on a wet floor at the Allstate Arena.  This venue is owned by the Village of Rosemont, which is a public entity.  Though the fall and the injuries are the same regardless of whether the accident was on public or private property, the location greatly affects what kind of case you have to prove.

Ordinary lawsuits for injuries require plaintiffs to prove that there was negligence by the defendant.  This means that there was some duty owed to you that was breached, and you were hurt because of the breach of duty.  But public entities and public employees have a special immunity which protects them from most ordinary lawsuits for negligence.

In a lawsuit against a public employee or public entity, you would have to prove that the defendant’s conduct was “willful and wanton.”  The standard of willful and wanton is a high level of proof, that goes far beyond just a failure to do something should have been done.   You have to prove that the defendant’s actions were deliberate, and done with an intent to cause harm, or else that the actions showed a complete disregard for safety.

When you apply these requirements of proof to the facts of a case, here is how it looks:  If, for example, a child is on a swing at a neighbor’s house, and the swing set fell over and injured the child, it would be relatively straightforward to show the neighbor’s negligence and win a case for money damages.  The neighbor had a duty to maintain a safe swing set before any children played on it.  If it was not properly secured and fell, then there could be negligence and responsibility for the injury.

But if the same accident happened on the public school playground, the case would proceed quite differently.  Instead there would have to be proof that the school district showed a purposeful lack of regard for the children’s safety.  Did they receive prior complaints about the unsafe condition of the swing set, and yet did not do anything to fix it?  Did they have actual knowledge that it was not properly secured in the ground, but did not do anything to fix it?  Did they remove some safety feature that had been in place?

These are the questions that have to be explored to have a case when the accident happens on public property and not private property.  The same slip and fall accident that happened at the Allstate Arena, could be a major case if it happened, for example, at a grocery store.  Though the water could have gotten on the floor and been left there under the exact same facts, the difference in the case is the difference in the venue.  Public employees and public entities are given more leeway in lawsuits than are private individuals.  Same fall; same cause; same injuries—different case completely.

1/23/12

Every state has deadlines for filing personal injury lawsuits. The deadline – called a statute of limitations – depends on the type of case, who you’re suing and where you’re suing. The basic rule in Illinois is that you have two years to sue for an injury.

If you miss the deadline, you’re probably out of luck. However, there are exceptions that allow more time. Keep in mind that there also are situations where you may have less time to sue.

Illinois’ statute of limitations for injury cases is two years from the date of injury. Injury cases include car accidents, getting hurt on someone else’s property, slip and fall cases, and medical malpractice, to name a few. So if you slip and fall in a parking lot, you have two years from that day to sue the owner or whoever is in charge of the lot.

In some situations, you may not know you were injured until much later. A common example is the medical malpractice case where a surgical instrument is left inside the patient after surgery. You aren’t expected to know about this type of injury until you start experiencing symptoms or until you are diagnosed. So in these situations, the two years may not begin until you know (or should have known) about the injury. There is an outside deadline of four years in most medical malpractice cases, meaning that even if you didn’t know about the malpractice you still may run out of time to sue.

You may have less than two years to file an injury lawsuit if you are suing the government. You usually have to give notice of your intent to sue within six months or a year, and you may only have a year to file a lawsuit. This exception applies to cases against towns, police departments, public schools, etc.

The two-year statute of limitations may be extended if the injured person is a minor at the time of the injury. If you are under 18, you generally have two years from your 18th birthday to file a lawsuit. For medical malpractice, minors have an outside deadline of either (1) eight years from the date of malpractice or (2) their 22nd birthday.

The statute of limitations for an injury case also may be extended based on the mental state of the person suing. For example, lawsuits based on sexual abuse can be filed long after the abuse occurred if the memories were suppressed during that time. You also may have more time if you suffer from mental illness.

Keep these deadlines in mind if you are considering suing for an injury. If you have questions, talk to an experienced personal injury attorney – there may be an exception that applies to your case.

1/19/12