Justia Lawyer Rating for Robert D. Kreisman

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In all negligence cases, duty is an element that must be proved to a preponderance of the evidence by the plaintiff. In Choate v. Indiana Harbor Belt Railroad Co., the Illinois Supreme Court ruled that freight trains pose an obvious risk of harm to child trespassers, but the railroad would owe no duty of care to children for injuries suffered while trying to climb onto a moving train car. Furthermore, the Supreme Court found that whether there is such a duty under those facts exists as a matter of law for a judge to decide, not the jury, the fact-finder.

The Supreme Court’s unanimous decision reversed the trial court’s holding that the 12-year-old boy who had finished sixth grade, should have been smart enough to know the risks of trying to climb aboard a moving freight train. Even though the boy fell trying to board the moving train severing his foot above the toes, the Supreme Court determined that the railroad did not owe a duty of care to the child as a matter of law.

The Supreme Court raised the Second Restatement of Torts and case law going back as far as 1897. In citing these older decisions, the Supreme Court stated that, “[o]ur appellate court held long ago that it was not the duty of a railroad to keep watch and warn boys not to jump onto its cars because jumping from the ground upon a moving freight train is dangerous, and all men and ordinarily intelligent boys know it to be so.”

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The Illinois Seventh Circuit Court of Appeals has agreed with the federal district court in dismissing the lawsuit brought by James Nation. Mr. Nation served as the CEO of the Spring Air Co., which owned and licensed a mattress brand.

After the company was acquired by HIG Capital in 2007, Mr. Nation accepted a severance plan, which would have paid him $1.2 million over 15 months provided he did not work for Spring Air’s competitors through Dec. 31, 2008. In August 2008, the company stopped making the payments because of financial shortfalls.

In January 2008, Spring Air requested additional financing from American Capital and HIG. With $40 million of new capital, American Capital acquired four of the seven board seats. By a vote of this new board in August 2008, the severance payments to Mr. Nation and three other former executives were stopped. In September 2008, Mr. Nation began work at Serta in violation of the severance agreement.

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The pro bono work of DLA Piper attorney James Garrett cannot be understated. Mr. Garrett was recruited to help gain veteran benefits for Stanley Friedman, 92, who served in the U.S. Army during WWII and suffers from post-traumatic stress disorder. Mr. Garrett was enlisted in the case from The John Marshall Law School’s Veterans Legal Support Center & Clinic.

Mr. Friedman, who now lives in Lake Bluff, Ill., with his wife, had received no benefits since his service in WWII ended in 1945. Mr. Friedman was born in 1920, grew up in Brooklyn and enlisted in the Army right before the U.S. entry into the war. By 1941, he had gained experience as a toolmaker and became an instrument repairman in the service. On board a ship headed to the Strait of Gibraltar, he said his ship took fire from German combat ships.

During those 4+ years that he served in the army, Mr. Friedman experienced many of the horrors of war and its devastation. He was with a group of troops who searched for scrap metal from the remains of tanks from the Battle of Kasserine Pass in Tunisia.

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Even some of the lowest level arrests and criminal convictions can haunt a person for life. Through the volunteer work of attorneys at the Cabrini Green Legal Aid clinic (CGLA), Cook County Clerk Dorothy A. Brown, and The Center on Halsted, work is under way to provide expungement and record-sealing assistance for Chicago-area residents. This is vitally important because arrests and convictions pose hurdles for anyone who wants to apply for student loans, federally funded housing, state licenses and a whole host of other employment opportunities.

A seminar was held at The Center on Halsted, 3656 N. Halsted St. in Chicago, to educate 20 volunteer attorneys who will help those with records of crimes and/or arrests to expunge or seal their past deeds.

The hurdle is high to expunge a criminal record of arrest, but many who plead guilty to low-level crimes don’t understand that a conviction cannot be expunged. Beth A. Johnson is the program director at CGLA who is one of the attorneys leading this effort.

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Although a truck vastly outweighs a bicycle, accidents can occur in which the bike rider is at fault. A Cook County jury ruled that this was the case in a collision involving a rider named Kim Assaley and the driver of a Dreyer’s ice cream truck in the early-morning hours of October 2007.

In this accident, Ms. Assaley, 41, was riding her bicycle to work northbound on Western Avenue. She was hit by the defendant’s northbound truck as it made a right turn onto Madison Street just after the traffic light turned green.

Ms. Assaley suffered an injury to her left foot and incurred $61,000 in medical expenses as well as more than $21,000 in time lost from her work. The pre-dawn incident occurred at 6:40 a.m., when sunrise was at 7:04 a.m. that day.

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In this case, Donny McGee alleged that defendants prosecuted him for murder of his elderly next door neighbor based on a fabricated confession. McGee was acquitted in the criminal case, but he spent three years wrongfully incarcerated awaiting his trial. The plaintiffs brought a civil complaint, which included claims of malicious prosecution and intentional infliction of emotional distress against the defendants, City of Chicago and police detectives. The jury returned a verdict in favor of McGee of $975,000 plus $110,000 in punitive damages against each individual defendant.

One of the defendants, Detective Lenihan, testified that the plaintiff gave vague answers when being questioned about the crime. Memory lapses were a key issue in the criminal trial. Then McGee testified about being hit in the head while in Mexico although there was testimony from his sister that he had no blackouts or memory losses. The plaintiff did admit that he hit his head while in Mexico, but he denied telling that to the detectives. He also told the detective that he didn’t have blackouts.

Significantly, since memory lapses were an issue in the case. It was learned during the trial by the court’s bailiff that one of the jurors had a document about memory lapses that she had found during an internet search and brought it to the jury room. When the bailiff advised the court, there was an exchange between the judge and the bailiff. The defendants’ lawyer argued to the judge that there was a great risk that the juror did not follow the court’s instructions regarding outside research but yet denied that she brought it into the court when asked by the bailiff. The trial judge asked the parties’ lawyer to submit a memorandum of law on the issue for the next court date.

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A judge has ruled that federal law allows railroad employees to file suit if their employer blocks them from getting medical treatment for an on-the-job injury.

U.S. District Judge John J. Tharp Jr. declined to throw out Rene Delgado’s claim that Union Pacific Railroad Co. violated the Federal Railroad Safety Act (FRSA) by directing him not to go to the hospital after he injured his foot. Tharp cited Section 20109 of FRSA, saying Congress intended to provide a private right-of-action for railroad employees whose employers obstruct their attempt to get medical care following a workplace injury.

Subsection (c)(1) prohibits railroad carriers from acting to “deny, delay or interfere with the medical or first aid treatment of an employee who is injured during the course of employment.”

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The first of nearly14,000 patients given potentially tainted injections of pain medicine has sued the maker of the treatment. Many experts say this may be the first of a wave of lawsuits following a deadly meningitis outbreak that has killed 14 people.

Meanwhile, a medical practice specializing in pain management received a shipment of the tainted medication. The company has notified about 200 Chicago-area patients who may have received injections of a steroid medication linked to an outbreak of the deadly form of meningitis. APAC Centers for Pain Management is the only provider in Illinois known to have received the recalled product, according to the Illinois Department of Public Health. Three of the company’s clinic sites gave injections of the drug for back pain, including two in Chicago and one in Westchester. The Illinois Department of Public Health has reported that there have been no cases of meningitis linked to the pain mediication in the state.

The first lawsuit was filed last week in a Minnesota federal courtby a woman who said she had been given a steroid injection for back pain. She said she has experienced meningitis-like symptoms and is awaiting test results.

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The Illinois Appellate Court has affirmed a ruling by a Cook County Circuit Court judge arising from a class-action suit filed by Ronald Costello who represented the class. He claimed that he and others suffered flooding on their property during August 2001 storms.

The lawsuit arose out of the City of Chicago’s implemented Rainblocker System, a sewer inlet intended to prevent backup from sewers following a heavy rain. The city hired Harza Environmental to develop this project. The same program worked successfully in Evanston, Illinois. Four pilot studies were done in different Chicago neighborhoods by Harza with a variety of levels of flooding. The studies proved successful and the city went ahead with the Rainblocker System.

It was alleged that during August 2001 storms, streets in the city flooded above the curb level because of the incorrect assumptions made by Harza. The lawsuit complained that the city should have done more tests and therefore, was negligent. In December 2005, the lawsuit was certified as a class.

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In this case, the defendant, Dale Levan, admitted liability for an auto accident that left a woman, Denise Ponto, injured. The verdict on damages was $585,174, but the defendant had only $100,000 in liability insurance. The plaintiff tried to collect the rest of the money from the city of Dixon, where the accident occurred. The jury had decided that the city was 35 percent at fault for causing the accident.

But the plaintiff’s error was that she did not try to add the city as a direct defendant within one year of the filing, as required under Section 8-10(a) of the Local Governmental and Governmental Employees Tort Immunity Act. Dixon’s culpability was a question for the jury because the defendant promptly filed a contribution claim against the municipality when he was sued.

The trial judge concluded that the law barred Ponto’s claim against Dixon and the Illinois Appellate Court affirmed that ruling. Both the plaintiff and the defendant argued that a third-party defendant (in this case the city) who is more than 25 percent at fault is jointly and severally liable to the plaintiff for all damages, based on Section 2-117 of the Code of Civil Procedure. Section 2-117 specifies the rules on joint liability for all defendants found liable in tort cases involving bodily injury, death or property damage. Ponto reasoned that the reference to “all defendants found liable” meant that Dixon was jointly liable for her damages.

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