Psychological Injuries Are Recoverable Under Illinois Workers’ Compensation Act

Work-related physical injuries are compensable under Illinois Workers’ Compensation Act.  To be compensable, the injury must arise out of and in the course of the employment.  Psychological injuries are also compensable in Illinois under two theories.  If the psychological injury is related to a physical trauma, it is compensable under Physical-Mental theory and if the psychological injury is a result of a sudden, severe emotional shock traceable to a definite time, place and cause, it is also compensable under Mental-Mental theory.

In 2013, there are two important decisions by Illinois Appellate Courts regarding the application of the Mental-Mental theory to psychological injuries to the workmen.  In Chi. Transit Auth. v. Ill. Workers’ Comp. Comm’n, 2013 IL App (1st), the Appellate Court of Illinois, First District, Workmen’s Compensation Commission Division held that the employee’s failure to seek immediate professional help after striking a pedestrian did not defeat her claim under the Mental-Mental theory.  In this case, the court rejected the argument of the employer that the employee can recover under mental-mental theory only if the injury is immediately apparent.  The claimant in this case was a bus operator.  She suffered a severe emotional shock after a bus accident in which a passenger suffered injuries and she did not take treatment for her psychic injury for two months after the accident.  She took the treatment only when the condition worsened.

In a most recent case - Diaz v. Ill. Workers’ Comp. Comm’n, 2013 IL App (2d)  (April 2013), the Appellate Court of Illinois, Second District, Workmen’s Compensation Commission Division reversed the trial court’s order that dismissed a worker’s claim and remanded the case for further proceedings.  The court held in this case that the question whether a workman suffered an emotional shock should be determined by an objective, reasonable-person standard, rather than a subjective standard that takes into account the claimant’s occupation and training.  In this case, the claimant was a police officer.  An individual pulled a gun and pointed it at the claimant.    As a result, the claimant suffered severe mental shock and subsequent traumatic stress disorder.  The gun used was a toy but the claimant did not realize this fact until sometime after the incident.  The Commission dismissed the claim finding that the claimant failed to prove a compensable injury.  The appellate court found that the incident was a severe emotional shock traceable to a specific time, place, and event that produced his disability.

Normally, mental disorders developed over time in the normal course of employment are not compensable.  The recovery for non-traumatically-induced mental disorders is restricted.  If a worker could prove that the mental illness is developed in a situation of greater dimensions than the day-to-day stress and strain which all workers suffer, the conditions exist in reality from an objective standpoint and the work conditions, were the major reason for the mental illness, he is entitled for the recovery.

If the mental injury is a result of the physical injury suffered by the worker, the mental injury is recoverable under the Workers’ Compensation Act.

Land Owners have No Duty to Children if the Danger is Obvious

The person who goes upon the premises of another without express or implied invitation is a trespasser. Children are easily attracted by a swimming pool, machinery, equipment etc. in the premises.  The general rule is that there is no duty of reasonable care to trespassers.  However, if the trespassers are children, the owner of the premises is under a legal duty to protect the children from a dangerous condition where the dangerous condition is likely to cause injury to the children by reason of their age and immaturity.

Premises might have some obvious dangers like fire, falling from height, drowning in water etc.  Is the owner of the premises under a legal duty to protect the children if the danger is obvious? The Supreme Court of Illinois in a recent case – Choate v. Ind. Harbor Belt R.R. Co., 2012 IL 112948 (Sep 2012) – held that the defendant, a rail-road company had no legal duty to protect the plaintiff, a thirteen-year old child, to fence its property to prevent the Plaintiff from boarding its moving train(s). Continue reading

The Survival Act of Illinois

The Survival Act of Illinois (755 ILCS 5/27-6) has been codified under the Probate Act of 1975. Pursuant to the Survival Act, some actions in addition to the actions that survive under common law will survive upon the death of the person to whom the actions had been accrued. The actions that survive include but not limited to actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property etc. Continue reading

Non-Economic Damages in Medical Malpractice Claims

Non-economic damages are the damages sought for pain and suffering, love and affection, loss of enjoyment in life, disability, disfigurement, loss of consortium etc. The statute defines “non-economic damages” as damages which are intangible, including but not limited to damages for pain and suffering, disability, disfigurement, loss of consortium, and loss of society. In Illinois, there are no caps on recovery of non-economic damages in personal injury and wrongful death claims. The Illinois Statute 735 ILCS 5/2-1706.5 had limited the recovery of non-economic damages in medical malpractice cases. But in a 2010 case – ., 237 Ill. 2d 217 – the Supreme Court of Illinois held that the statute 735 ILCS 5/2-1706.5 is unconstitutional as it is against Section I of Article II of the Illinois Constitution. Section I of the Article II of the Illinois Constitution states that the Legislative, Executive and Judicial branches of the State are separate and no branch shall exercise the powers properly belonging to another.

In Lebron, the Plaintiff, (a minor and her mother), filed a medical malpractice claim against the Defendants. The Plaintiffs alleged in their complaint that the mother was under the care of the Doctors in the Defendant Hospital during her pregnancy. On October 31, 2005, the mother was admitted in the Hospital, where the mother delivered the minor. Plaintiffs alleged that the minor suffered several permanent injuries due to the negligence of the two doctors who attended the mother in the hospital. Plaintiffs also challenged the caps on non-economic damages set forth in 735 ILCS 5/2-1706.5 that limited the non-economic damages in medical malpractice cases against a hospital and its personnel or hospital affiliates to $1,000,000 and against a physician and the physician’s business or corporate entity and personnel or health care professional to $500,000. The Cook County Circuit Court invalidated the Statute for the reason that it violated Section I of Article II of the Illinois Constitution. Defendants in this case argued that the non-economic injuries are not easy to assess and therefore the caps are necessary. Even though the Supreme Court agreed with the Defendants’ argument, the Court held that the caps are arbitrary. The Court further held in this case that the ceiling of the damages subverted the legislative intent of the statute and confirmed the trial court’s ruling that the statute was invalid. Now the statute 735 ILCS 5/2-1706.5 has been repealed by P.A. 97-1145, § 15, effective January 18, 2013.

Presently there is no cap for non-economic damages in medical malpractice claims in Illinois. The Illinois Statute does not provide an exhaustive list of non-economic damages. The courts normally look to the common law to determine whether a non-economic damage is recoverable or not. The purpose of an award of damages is not to punish or penalize the defendant for his negligence, but to compensate the plaintiff for his resulting injuries and losses. As negligence is common in the medical profession, the Supreme Court’s decision in Lebron will be helpful for the people who suffered serious injuries and losses due to negligence of the medical professionals.

Infants Can Maintain a Cause of Action for Preconception Injuries

A preconception tort refers to the tortious conduct occurring prior to the child’s conception and resulting in the injuries to the child. In negligence cases, a defendant is not normally liable for the injuries suffered by the plaintiff whose existence is not apparent at the time of defendant’s negligent acts.  A defendant has no duty to a person not yet in existence.  But if the defendant could foresee that a child would suffer injuries due to defendant’s negligent act(s) before the child’s conception, the defendant may be held liable.  It is a settled law in Illinois that the preconception injuries are actionable.

In a case decided by the Illinois Supreme Court, the defendants negligently transfused the mother of the child with 500 cubic centimeters of Rh-positive blood.  The Rh-positive blood was incompatible with the mother’s Rh-negative blood.  The defendants did not inform the mother of the medical error or its effects.  The mother first learned that her eight years later, when she was pregnant. The sensitization caused prenatal damage to her child’s hemolytic processes that resulted in the premature birth of her child.  The child was born with jaundice and was suffering from other problems.   The mother had to undergo an immediate, complete exchange transfusion of her blood.  The child suffered permanent damage to various organs, brain and nervous system. (Renslow v. Mennonite Hospital, 67 Ill. 2d 348  (1977)).

In Renslow, the trial court dismissed the cause of action of the minor concluding that the minor was not conceived “at the time of the alleged infliction of the injury”.  The Fourth District Appellate Court, in a careful and well-reasoned opinion, emphasized that the defendants were a doctor and a hospital, and held that there was no showing “that the defendants could not reasonably have foreseen that the teenage girl would later marry and bear a child and that the child would be injured as the result of the improper blood transfusion.” On appeal, the Supreme Court concluded that the child has a cause of action against the defendants for a wrong committed prior to her existence and remanded the case to the trial court for further proceedings.

Regarding the ‘duty of care’ in negligence cases, the Illinois Courts long recognized that a duty may exist to one foreseeably harmed though he be unknown and remote in time and place.

The majority of the preconception injury case laws have developed over the past thirty years.  A child who enters the world with an injury due to another’s fault might recover in one jurisdiction and be left with no remedy in another jurisdiction.  Preconception negligence cases can be classified into two fault-based categories.  In the first category, tortfeasor’s negligence causes the ultimate harm to the child but does not cause child’s conception.  Renslow is in this category.  In the second category, the negligent actor is responsible for the conception but he is not responsible for the harm caused.  The wrongful life cases include in this category.  In Illinois, if the plaintiff could establish that the defendant could foresee the injuries while doing the negligent act(s), the plaintiff could recover damages from the defendant.

Doctrine of ‘Respondeat Superior’

Establishing Employer and Employee Relationship

In Latin, ‘Respondeat Superior’ means ‘Let the Master respond’. This doctrine is based on an old legal theory that the made slaveholders are liable for the actions of their slaves. Subsequently, employer and employee relationship has been included in the doctrine. Pursuant to this doctrine the employer is liable for the actions of the employee when the employee is carrying out his duties for the employer.

To obtain a judgment against an employer under this doctrine, the Plaintiff needs only to establish that the employee acted negligently while carrying out his duties in the scope of the employment. There is no burden upon the Plaintiff to show anything about employer’s conduct other than the employer-employee relationship. Therefore, there are only two elements: proof of an employer/employee relationship, and proof that the injury occurred within the scope of that employment.

It is not relevant that the employer did not authorize the specific act of the employee that precipitated to the injury of a third person. It is sufficient that the action is required for the completion of the work or the general nature of the work requires it or both. Therefore, an employee who slightly deviates from that directed by the employer would still be considered to be acting within the scope of the employment.

But if the employee deviates substantially from the employer’s instructions or if the employee engages in conduct that ultimately serves the employee rather than the employer, the doctrine has no application. In most jurisdictions, the doctrine does not apply to the incidents that result from the employee’s smoking while driving. The deviations from purpose can include picking up hitchhikers, making personal stops, changing route for personal reasons, driving while intoxicated etc.

Another exception of the doctrine is the intentional wrongs committed by the employee. An employer will not be held liable for the injuries to the third parties if the injuries were caused intentionally by the employee. The principle behind this exception is that all persons should be responsible for their own intentional acts. However, an employer may be held liable for the intentional acts of the employee if the general nature of the employer’s business requires such acts because this serves the purpose of the employer and is done with the employer’s consent. For example, an employer who runs a bar may be held liable for the injuries as a result of his bouncer’s intentional application of physical force against an unruly patron. It is customary for the bouncers to employ physical force against unruly patrons.

Enforcement of Judgment: A Plaintiff who wins a judgment under the doctrine of respondeat superior can enforce the judgment against the employer as well as the employee. Usually the employers are more capable of paying the judgments in tort (civil wrong) actions. Therefore, the doctrine provides additional protection to the injured plaintiff in a tort action. The purpose of the doctrine is to help the injured plaintiff in getting the judgment enforced.

“Sudden and calamitous occurrence’ as a result of defective products

Injury can happen at any time. If you are injured or your property is damaged in a sudden and calamitous occurrence as a result of a defective product, you have a remedy in the court.

When a product is in defective condition that is unreasonably dangerous to the user or consumer or to his property, strict liability is applicable to physical injury to the property as well as to personal injury.

In a 1993 case, the interior ceiling of an office building collapsed damaging Plaintiff’s furniture, furnishings, desks, chairs and other miscellaneous objects. The roof and ceiling of the building were installed by the defendants nine months prior to the collapse and defects were reported during and after the installation.

The trial court held that the damages sought were solely economic losses precluded from recovery in tort and that the customer failed to allege facts sufficient to support its implied warranty claim. On appeal, the court held that tort law was the appropriate remedy where the manner in which the customer’s roof collapsed was sudden and calamitous, exposed the customer and its employees to an unreasonable risk of injury, resulted in damage to property other than the roof, and was caused by a defect in the roof. (United Air Lines, Inc. v. CEI Industries of Illinois, Inc., 148 Ill. App. 3d 332). In the appeal, the Appellate Court of Illinois, First District, Fifth Division held that;

“to determine whether a party has an action in tort or contract as a result of a defective product, a court must look to the suddenness of the occurrence of an event — the point when the injury occurs (a fire, overturning of a truck, collapse of a ceiling) — where such occurrence causes personal injury or damage to property external to the defective product which exposes a party to an unreasonable risk of injury to himself or his property, rather than the suddenness or length of time within which the defect or cause of the occurrence develops (ignition of polyurethane padding, locking wheel brakes, water leakage) and manifests itself in the sudden and calamitous occurrence.”

In American Xyrofin v. Allis-Chalmers Corp., 230 Ill. App. 3d 662 (1992), the Appellate Court of Illinois, Second District held that “when characterizing an event as sudden and calamitous the focus is upon the suddenness of the occurrence of an event–the point when the injury occurs where such occurrence causes personal injury or damage to property external to the defective product which exposes a party to an unreasonable risk of injury to himself or his property, rather than the suddenness or length of time within which the defect or cause of the occurrence develops and manifests itself in the sudden and calamitous occurrence.” The court further held in this case that;

“A history of repairs prior to the occurrence does not necessarily detract from its characterization as sudden and calamitous where there is evidence to support the finding that the product failed in a sudden and calamitous manner.”

Res Ipsa Loquitur in Negligence Cases

In Latin, Res Ipsa Loquitur means “the thing (res) speaks (loquitur) for itself (ipsa)”.  Under this doctrine, the defendant’s negligence is presumed as a result of his or her actions and the burden of proof is shifted to the defendant.  Therefore, the defendant should disprove the negligence alleged against him/her.

The basis of the doctrine of Res ipsa loquitur is that some events ordinarily do not occur in the absence of negligence.  It was formulated in a 1863 English case, Byrne v. Boadle.  In this case, the Plaintiff, while walking along a public street, was struck by a barrel of flour falling from a window above.  The Plaintiff could testify nothing as to the accident except that he had suddenly been injured by some falling object.  Plaintiff had averred negligence in his pleading.  Two eye witnesses testified that they saw a barrel falling but could not offer evidence as to the reason for the accident.  In the absence of evidence of negligence, the trial court entered a non-suit judgment against Plaintiff.  The Court of Exchequer unanimously held that the non-suit was improper and if there are any facts inconsistent with the negligence, the defendant has to prove them.

Elements

The plaintiff must establish three elements to apply the doctrine of res ipsa loquitur:

  1.  direct proof of negligence is wanting;
  2. the instrumentality that caused the injury was under the exclusive control of the defendant; and,
  3. the injury would not, in the ordinary course of events, have occurred, without negligence on the part of the defendant.

Some conditions are to be met before an inference of negligence may be drawn.  The doctrine does not in any way depend on the standard of care imposed by law.  It depends entirely upon the nature of the occurrence out of which the injury arose.

The general nature of the doctrine is that it creates an inference or presumption of negligence that makes evidence of negligence which may not be disregarded by the fact-finder, but is to be weighed and considered as against the evidence adduced by the defendant in rebuttal thereof.

Almost all jurisdictions follow some form of res ipsa doctrine.  Some jurisdictions do not follow it.  It is often used in airplane crashes, other catastrophes in which Plaintiff could not know what has actually happened other than there is negligence on the part of the defendant.

Defenses

The best defense is to attack individual elements of the doctrine.  Defendant could assert that he or she was not in the exclusive control of the instrumentality or that the Plaintiff in some way contributed to his or her own injuries even though it is hard to attack first element.

The history of the doctrine indicates that there is confusion and disagreement regarding the nature, scope and effect of the doctrine.   This doctrine has received some condemnation.  Some courts held that the doctrine is of limited utility and it should be applied cautiously and sparingly.

Landowner or Possessor of Real Property has no Duty to Remove Natural Accumulations

Natural accumulation means the accumulation of ice, snow, water etc. on a property as a result of an act of nature.  In slip and fall cases, it is the duty of the plaintiff to show that the accumulation of ice, water or snow is due to unnatural causes and that the property owner had actual or constructive knowledge of the condition.  The common law does not impose a duty upon the owner or occupier of the property to remove accumulations of ice or snow from areas maintained for the use of his invitees where the accumulation is a natural one and is not caused or aggravated by the owner.

The Appellate Court of Illinois, Second District, held in American States Ins. Co. v. A.J. Maggio Co., 229 Ill. App. 3d 422 (1992) that the defendant had no liability under the traditional rules of negligence applied in a slip-and-fall case, which required evidence that the ice resulted from unnatural causes. The court found in this case that defendant only assumed a general duty of care to keep the workplace reasonably safe and assumed no duty greater than would be ordinarily expected of a landowner.

In a 2010 case (Krywin v. Chi. Transit Auth., 238 Ill. 2d 215) the Illinois Supreme Court applied the ‘natural accumulation rule’ and found that the train operator owed no duty, under either a negligence or a willful and wanton theory, to the passenger to either remove natural accumulations of snow and ice from its platform or warn of them. It noted that the imposition of such a duty would be too burdensome upon a common carrier such as the train operator, which was operating at all times on every day of the week.

The Second District Court recently affirmed a summary judgment of the trial court finding that there was no evidence that plaintiff fell upon an unnatural accumulation of ice in Gallagher v. Union Square Condo Homeowner’s Ass’n, 2012 IL App (2d) 111190-U (2012).

But the property owner or occupier may be held liable in some situations even if the accumulation is natural.  If the owner or occupier voluntarily undertakes the removal of snow and ice and removes it in a negligent manner, the owner or occupier will be held liable.  Liability may arise if the snow or ice accumulated because the owner or occupier either aggravated a natural condition or engaged in conduct which created a new, unnatural or artificial condition.  (see Barber v. G.J. Partners, Inc., 974 N.E.2d 452(2012).  In Barber, the court further held that

“along with snow removal operations like shoveling and plowing, the mere sprinkling of salt, causing ice to melt, although it may later refreeze, does not aggravate a natural condition so as to form a basis for liability on the part of the property owner. Ruts and uneven surfaces created by traffic in snow and ice are not considered unnatural and cannot form the basis for liability.”

The above cited decisions show that the property owner or occupier is liable for the unnatural accumulations of water, ice or snow on the property.  But if the property is owned or leased by a local public entity, the owner or occupier is not liable for such unnatural accumulations pursuant to Tort Immunity Act.  The Supreme Court of Illinois in a recent case, Moore v. Chi. Park Dist., 978 N.E.2d 1050 (2012), held that

745 ILCS 10/3-106 (2008) does not incorporate the natural accumulation rule. Consequently, the fact that the snow and ice in a case allegedly accumulated unnaturally is irrelevant to the question of immunity under 745 ILCS 10/3-106 (2008).”

Therefore, an injured person can file a claim against a owner or occupier of the property, who is not immune from liability pursuant to Tort Immunity Act or any other act, if the injury is due to an unnatural accumulation on the property or if the owner or occupier voluntarily undertakes the removal of natural accumulation and removes it in a negligent manner or aggravates the natural condition that resulted the injury.

Penal statutes – Interpretation and Lenity to the Accused

The courts use various methods to interpret statutes.  In general, the criminal statutes are interpreted strictly.  Normally the courts interpret criminal statutes strictly against the State and liberally in favor of the accused.  If a criminal statute that increases a penalty or punishment is capable of two interpretations (constructions), the one which operates in favor of the accused is to be adopted. The application of such a statute should not be extended to cases which do not, by the strictest interpretation, fall within its terms.

The Appellate Court of Illinois in People v. Rogers, 86 Ill. App. 3d 1092 (1980) dismissed the information charging the defendant with a class four felony by affirming the holding of the trial court that the phrase ‘conviction of any type of theft’ in Ill. Rev. Stat. ch. 38, para. 16-1(e)(1) (1977), did not include municipal theft ordinance violations.  This means that the court could not extend the meaning of the penal statute by implication or construction or be made to embrace cases which are not within their letter and spirit.  A criminal statute cannot be expanded beyond those circumstances intended by the legislature to be within the scope of the statute.

In a 2002 case - People v. Davis, 199 Ill. 2d 130 – the Supreme Court of Illinois vacated the conviction of a defendant concluding that the phrase “any other deadly or dangerous weapon or instrument of like nature” in the Armed Violence Statue (720 ILCS 5/33A-1(b)) was intended to refer only to weapons or instruments “such like” the class of blade-type weapons which immediately preceded the clause and for the same reasons, neither was the pellet/BB gun used by defendant a Category II dangerous weapon. Pellet and BB guns were not specifically named in the statute.  The court further held in this case that “where a criminal statute is capable of two constructions, courts must adopt the one that operates in favor of the accused.”

By vacating the conviction of the defendant in Davis, the Illinois SC reiterated the established law in People v. Lund, 382 Ill. 213 (1943).  In Lund, the Supreme Court had held that “If a statute creating or increasing a penalty or punishment be capable of two constructions, undoubtedly that which operates in favor of the accused is to be adopted. A statute authorizing a more severe punishment to be inflicted upon one convicted of a second or subsequent offense is highly penal and should be strictly construed and not extended in its application to cases which do not, by the strictest construction, come under its provisions.”

While penal statutes are to be strictly construed in favor of the accused, they must not be construed so rigidly as to defeat the intent of the legislature. (People v. Parker, 123 Ill. 2d 204)  In Parker, the Supreme Court reversed the appellate court’s judgment and affirmed the trial court’s conviction of defendant.

Therefore, we can very well conclude that if the penal statute is unambiguous and the intent of the legislature is clear, the court should give effect to the intent of the legislature and if the statute is ambiguous and the intent of the legislature is not clear, the benefit should be given to the accused.