Archive for the ‘Premises Liability’ Category

Study Finds Brain Imaging Can Predict Pain Intensity

Thursday, April 11th, 2013

fMRI Detect Pain 300x194 Study Finds Brain Imaging Can Predict Pain IntensityPain and suffering is often difficult to measure, even by the most experienced pain specialists.  Patients are typically asked to rate their own pain on a scale of 1-10.  Although there are objective ways to confirm physical and psychological injuries consistent with pain, the nature and extent of pain is typically measured by the patient’s own subjective self-reporting.

A new study published in the New England Journal of Medicine finds that brain imaging can be used to objectively assess pain — both physical and emotional pain.

The study involved a total of 114 patients who underwent functional magnetic resonance imaging (fMRI) — a unique and new form of neuroimaging — while being stimulated with heat-induced pain, as well as “social pain.”

What is Functional Magnetic Resonance Imaging (fMRI)?

fMRI is a relatively new form of neuroimaging used to measure brain activity by detecting changes in blood flow that occur in response to certain stimuli. fMRI can identify the parts of the brain that are involved in certain mental processes.

fMRI use is controversial, because it is a relatively new neruoimaging technique.  However, fMRI can be extremely beneficial to identifying a brain injury in patients who are symptomatic of neurologic dysfunction, yet have “normal” brain scans using typical imaging techniques.

As the above-mentioned study demonstrates, fMRI can also be extremely helpful in identifying pain.

fMRI to Identify Physical and Emotional Pain

The study found that in those patients who were subjected to heat-induced pain while being imaged with fMRI, a “nerologic signature” emerged:  increased brain activity in the thalamus, posterior and anterior insulae, secondary somatosensory cortex, anterior cingulate cortex, periaqueductal gray matter, and other regions of the brain.

Even more interesting, the study found that fMRI was helpful in identifying emotional-related pain — related to depression, post-traumatic stress disorder (PTSD), or other events that cause emotional pain.  When subjecting such patients to “social pain,” the fMRI showed that many of the same brain regions were activated as with physical pain.

In general, the study found fMRI to be over 90% sensitive (or accurate) in identifying physical and emotional pain.

This is a huge breakthrough for pain research and treatment for those with chronic and acute pain — both physical and emotional.  Based on this research, new treatment may be developed to focus on these specific areas of the brain that are triggered, rather than on the conventional approach to attempting to block pain impulses from getting into the spinal cord and the brain.

At Passen Law Group, most of our clients have experienced significant pain — both physical and emotional — as a result of serious motor vehicle accidents, medical malpractice, and other contexts which produce pain.  We welcome these new developments addressed at identifying pain, and hopefully leading to beneficial treatment for pain.

For a Free Consultation with one of our attorneys, Call us at 312-527-4500.

Civil Liability in the Penn State Scandal

Friday, November 18th, 2011

Sandusky sexual abuse 300x220 Civil Liability in the Penn State ScandalThere are no words to describe the terrible tragedy that has come to light at Penn State University of the course of the last few weeks. Countless lives have been ruined – indeed, we may never know the full scope of the abuse that occurred, or exactly how many young men were abused.

For the University, and those who are alleged to have “looked the other way” when these alleged monstrous acts occurred, there are many consequences which must be faced. In addition to the prospect of living with themselves and their actions, more material consequences will certainly follow.

The University faces extreme damage to its reputation and standing. Moreover, future enrollments, endorsements, and recruiting of all kinds will likely be affected – indeed, one prominent bureau has already threatened to downgrade the University’s credit rating. Many of those involved in the scandal have already lost their jobs, or will do so in the near future.

But the University and those within the institution may also face civil liability. Many experts have already suggested that the University had sufficient warning about Sandusky’s actions, yet failed to act, to create legal liability.  That appears to be true according to the Sandusky grand jury report.

The prospect of liability for child sexual abuse is only heightened by the criminal case unfolding against several top figures in the University’s administration. The Pennsylvania Attorney General, Linda Kelly, has brought charges against University Athletic Director Tim Curley and University Vice President for Finance and Business Gary Schultz, including the failure to report child abuse and lying to a grand jury.

According to the grand jury’s report in the criminal case, Curley and Schultz were presented with multiple reports of sexual misconduct by Jerry Sandusky over the course of several years. This misconduct was also reported on at least one occasion to University football coach and community hero Joe Paterno, and to University President Graham Spanier. Both have lost their positions at the University since the allegations came to light.

While the failure to report criminal activity is usually not adequate to trigger civil liability, there are unique factors at play here. Despite an unenforceable University directive to prohibit Sandusky from bringing children onto the University’s campus, there is ample evidence that the University continued to allow Sandusky virtually unlimited access to University facilities, even with children. Sandusky’s charity continued to hold football camps at a University satellite campus, and Sandusky even brought child guests to at least one University football practice.

One potential legal theory at play here is premises liability for sexual abuse – much like a landowner who allows a dangerous condition to continue on his property, the University allowed a dangerous “condition” – the presence of a known pedophile – to continue on its own property. And like the landowner who fails to correct a dangerous physical condition (such as a broken swingset) which presents a known danger to children on the property, the University may face civil liability for failing to take steps to protect future victims from Sandusky.

Much like the civil cases against the various diocese of the Catholic Church, the potential suits against the University and its officials carry with them extensive financial exposure. Nor are these suits merely hypothetical – several major news outlets are now reporting that some victims have retained an attorney and begun planning a civil action.

We can only hope that, whether in the criminal or civil courts, the alleged victims of Jerry Sandusky will find some sense of justice.

If you have any questions about a possible claim for sexual abuse, please give us a call us at 312-527-4500 or email us at info@passenlaw.com for a complimentary consultation. You can also learn more by following us on Twitter, reviewing our LinkedIn or Avvo.com pages, and by reviewing our website.

Signing of Release Precludes Negligence Liability: IL App. Ct.

Tuesday, October 19th, 2010

Our Chicago personal injury attorneys are sometimes asked to represent clients whose injuries may have been contemplated by a contract between the client and the possible defendants.  Where a potential plaintiff has signed a waiver or release that may cover the claims at issue, obtaining relief can become more difficult.

Experienced personal injury attorneys such as those at Passen Law Group know that a release does not
make recovery impossible. But we also know that the best way to ensure that a release does not prevent you from obtaining the compensation you deserve after an accident is not to sign the release at all.

A recent opinion from the Illinois Appellate Court, First District confirms that the onus is on the consumer to avoid signing releases which might prevent recovery down the road – even when the consumer is affirmatively misinformed as to what she is signing.

In Oelze v. Score Sports Venture, 09-1476, the Circuit Court of Cook County was faced with an injury sustained by Ms. Oelze while playing tennis at the defendant sports club.  Each of the tennis courts at the club was separated from a walkway area by a heavy curtain.  When a player ran back to intercept a ball, he or she could run into the curtain, moving in up to a couple of inches.

This is precisely what happened to Ms. Oelze.  Unfortunately, when Ms. Oelze ran into the curtain, a rope ladder used for conditioning had been left directly behind the curtain.  Ms. Oelze’s foot became entangled in the ladder, and she fell, breaking her elbow and tearing her rotator cuff.

Ms. Oelze brought suit against the club for its negligence in leaving the rope ladder directly behind the curtain.  Prior to her accident, however, Ms. Oelze had signed a membership agreement containing a release of liability broad enough to cover such a claim.

Ms. Oelze attempted to avoid the application of the release she signed by asserting that when she signed the release, she was informed by the club employee who presented it to her that it was an authorization for automatic payments of club dues.  This was, in fact, correct – but the form also contained the terms of membership, including the release, facts not mentioned to Ms. Oelze by the club employee.  But this information was contained on the form itself, and Ms. Oelze admitted that she did not read the form except to confirm that the payment amount listed was accurate.

The Circuit Court held on summary judgment that Ms. Oelze could not avoid the application of the release, and the Illinois Appellate Court affirmed.  In doing so, the Appellate Court had harsh words for consumers such as Ms. Oelze.  The court concluded that even where a consumer is affirmatively misinformed or mislead as to the contents of a form, the consumer has a duty to read that form before signing.

If a consumer does not read language contained on the form, according to the Appellate Court, then it is her own fault that she was mislead and she cannot avoid the application of the release which she had no knowledge of signing.

While this conclusion has some surface appeal, it threatens to swallow the rules of contract.   The appellate court rejected the plaintiff’s assertion that she was forced to sign an “involuntary waiver” agreement.  The Court noted that defendants may contract to avoid liability for its own negligence unless (1) there is substantial disparity in bargaining power between the parties; (2) to enforce the contract would violate public policy; and (3) there is something in the social relationship between the parties that would militate against upholding the contract.  None of these exceptions were found to apply.

The Appellate Court expressly noted that fraud in the inducement (“when the party is induced to enter into the release by false representations by the other party”) and fraud in the execution (“when the plaintiff was induced to sign the agreement not knowing it was a release, but believing it to be another type of document”) allow a plaintiff to avoid a signed release.  Yet the court still concluded that a failure to read is the death-knell of a plaintiff’s claims.

Our Chicago personal injury lawyers are disappointed with this opinion, which places an unreasonable burden on consumers.  To think that corporations may contract-away their own negligence through boilerplate language on some release that most consumers don’t even read, and even if they did read, would be forced to sign in order to use the corporation’s facilities, is plainly unfair.  Companies that open their property and their facilities to the public should be responsible for injuries sustained on their property caused by their own negligence.  Period.

The Oelze opinion teaches consumers a valuable lesson.  The sheer number of forms presented to consumers in our modern world can be overwhelming at times.  Yet it behooves consumers to carefully read, or at least read, each of these forms before signing – even if told what it contains.  While this can be burdensome, impractical, and unrealistic, the alternative is much worse.  If you are seriously injured on the property of another, your unknowing release may preclude recovery, notwithstanding the negligence of the corporate defendant.

Our accident attorneys in Chicago will continue to represent those seriously injured or killed due to the negligence of another, even in instances where those injured signed release of liability agreements.  We believe corporate accountability remains, and will use all our resources and creativity to hold those responsible accountable.

For a free consultation with an experienced Chicago personal injury lawyer at Passen Law Group, call us at (312) 527-4500.

Slip & Fall Injuries: High Court to Consider ‘Natural Accumulation’ Rule

Monday, April 12th, 2010

slip fall injury 300x264 Slip & Fall Injuries: High Court to Consider Natural Accumulation RuleOur Chicago personal injury lawyers are always staying abreast of legal developments in our area of law.  Last month, the Illinois Supreme Court heard arguments in Krywin v. Chicago Transit Authority, a case concerning whether the “natural accumulation rule” — stating that persons may only recover for injuries sustained on unnatural accumulations of ice, snow, water — applies to common carriers (passenger transit services such as airlines, trains/railroads, and bus companies).

Generally, individual defendants and business owners owe plaintiffs a duty of reasonable care.  Common carriers, however, generally have a heightened duty, or duty of “highest care” to ensure the safety of their passengers. This is because mass-transit systems, like airplanes, trains and buses are responsible for the safety of many thousands of members of the public.  To speak with a top Chicago train accident attorney, call Passen Law Group at (312) 527-4500.

The natural accumulation rule is a bright-line test to determine whether someone may recover damages for injuries sustained in slip and falls caused by ice, snow or water.  Under the rule, if a person is injured by snow and ice that accumulated naturally, she cannot recover for her injuries.  The question for common carriers becomes: should they still be held to the heightened duty of care standard, or may they shield themselves from liability by clinging to the natural accumulation rule?

The Chicago premises liability lawyers of Passen Law Group join with others in urging the Illinois Supreme Court to reject this unreasonable shield for the negligence of Chicago’s transit agencies and companies.

The natural accumulation rule was constructed by the courts for ease of application.  When the courts develop a hard-and-fast rule, they can then simply apply that rule to each case without delving into the particular facts and circumstances.  In tort law, a defendant is liable if he owed a duty to the plaintiff, and breached that duty, causing injury.  Generally, courts must weigh a number of factors to determine if the defendant owed the plaintiff a duty, including: whether the injury was reasonably foreseeable, the likelihood of the injury, the magnitude of the burden of guarding against the injury (for instance, how much would it cost), and the consequences of making the defendant guard against the injury.

Thus, when dealing with a plaintiff injured by accumulations of snow and ice, using general tort law the court would likely have to consider many of the following factors (among others):  Should the defendant have foreseen that accumulations of snow and ice will cause hazards during the Chicago winter?  How easy would it be for the defendant to keep the platforms clear of snow and ice?  What means are available for doing so, and at what cost (spreading salt or sand, shoveling, covered platforms, stopping the train at a safer portion of the station, the use of treads on pedestrian surfaces)?  Could the defendant have made the situation safe without compromising continued service?  The natural accumulation rule relieves the courts from the burden of undertaking this analysis.  Instead, they simply must determine whether the defendant did anything to make the situation worse.  If not, then even if the defendant callously  ignored a dangerous situation, the victim cannot be compensated for her injuries.  The experienced Chicago Accident Attorneys of Passen Law Group know that this rule causes unfair results for the victims of negligence.

In Krywin, an elderly woman was injured when she slipped and fell on ice while exiting a CTA Red Line train on the southbound platform at Sheridan Road.  Her fall resulted in a broken leg, surgery, and nearly a month in the hospital.  Our attorneys have represented

She suffered from the pain of the accident and her recovery, as well as permanent disability and scarring.  At trial, the court allowed a jury to hear the case, and the victim was awarded nearly $400,000 in damages.  The Appellate Court of Illinois, First District reversed this award however, stating that because the victim was injured by a natural accumulation of ice and snow, the CTA bore no responsibility for the condition of its platforms.

As stated by the Illinois Trial Lawyers Association in their brief in support of the Plaintiff’s appeal, the natural accumulation rule is “an amorphous creature, living within the confines of legal fiction, which apparently rises from an accumulation of snow or ice and lives just long enough to keep an injured plaintiff from reaching an open courthouse door.”

The natural accumulation rule certainly makes things easier for courts and defendants.  However, the personal injury lawyers of Passen Law Group recognize that the rule creates unjust and disastrous consequences for those injured by the negligence of common carriers.  Under the natural accumulation rule, a responsible transit agency who continually clears ice and snow and spreads salt during a Chicago blizzard is treated exactly the same as a company who lets the ice and snow from that storm sit untouched for weeks:  both are not liable if a passenger should slip and fall.

This result is obviously unacceptable.  In Chicago and the rest of Illinois, like many other places, large numbers of people rely on public transportation to get to and from work and to conduct their lives.  The common carriers who transport these people, including Metra, the CTA, and the RTA, have a responsibility to take all reasonable measures to ensure the safety of their passengers – even during the notorious Chicago winter.  We at Passen Law Group urge the Illinois Supreme Court not to take the easy way out, and to reject the natural accumulation rule, at the very least as to the common carriers of Illinois.  When the rule is rejected, our experienced Chicago accident lawyers are ready to seek justice for those injured when negligence allows the Chicago winter to become hazardous.

For a free consultation with an experienced Illinois personal injury attorney at Passen Law Group, call us at (312) 527-4500.

Another Preventable Mining Explosion Disaster Causing Wrongful Death

Wednesday, April 7th, 2010

mining explosion Another Preventable Mining Explosion Disaster Causing Wrongful DeathOn Monday, the world was yet again shocked by the deaths of American miners in an underground mining accident.  This time, the event was reportedly caused by an explosion resulting from the ignition of built-up methane gas.  At least 25 miners lost their lives, making this the worst mining disaster in over two decades.  Four other miners were still missing.  If those four do not survive, that would make the explosion the worst mining disaster in 40 years.  The Chicago personal injury attorneys of the Passen Law Group are disheartened by the loss of these hardworking miners, and the injuries sustained by their surviving coworkers.  The question remains: Was this mining explosion preventable?

The accident occurred at a mine south of Charleston, West Virginia.  The mine, a huge complex known as the Upper Big Branch mine, is owned by the Massey Energy Company, and the explosion occurred about a mile and a half into the complex.  Monday’s accident was unusual in that it occurred in April:  such explosions are far more common in the winter, when cold, heavy air makes venting methane gas more difficult.

After the explosion, rescuers were hampered by the buildup of poison gases which prevented them from reaching the blast site.  However, they remained optimistic.  The mine is equipped with airtight safety chambers containing a four-day supply of food and water for several people, and two such chambers were located relatively close to the accident.  Although rescuers have already determined that one of the chambers was empty, some or all of the missing miners may have reached the other and sealed themselves inside.  All miners at Upper Big Branch carried oxygen containers on their belts, and containers with about an hour of breathable air were stockpiled inside the mine.  Federal Mine Safety and Health Administration workers, however, called the situation for anyone still trapped in the mine “dire.”

Although mining is a dangerous business, as U.S. Secretary of Labor Hilda Solis said, “Miners should never have to sacrifice their lives for their livelihood.”  Unfortunately, this tragedy – like many mining accidents – may have been preventable.  Our Chicago wrongful death attorneys have now learned that the buildup of methane gas, a toxic fume as well as a dangerous explosive, was an ongoing problem at the Upper Big Branch mine.  In fact, the mine has been repeatedly cited by federal safety officials for safety violations for failing to properly ventilate methane.  In the past year alone, the mine has received nearly $400,000 in fines for serious safety violations regarding its ventilation plan, failure to follow the plan, the buildup of combustible coal dust, and the lack of proper firefighting equipment.  Moreover, Massey Energy Company (the coal industry’s most profitable producer) has a questionable safety history throughout its mines in West Virginia, Tennessee, Kentucky, and Virginia.

If Massey Energy Company’s safety violations led to the wrongful death and injury of these miners, they and their loved ones may have a legal claim against the company, the contractors, subcontractors or other individuals or entities for negligence in causing personal injury and death.  Only after a thorough investigation of the particular circumstances will we know for certain who is responsible for this tragedy, and whether the victims and their families can recover under the law.  The top Illinois wrongful death lawyers at Passen Law Group are experienced in helping the victims of negligence obtain justice from those who caused them harm.

For a free consultation with an experienced Chicago personal injury lawyer at Passen Law Group, call us at (312) 527-4500.