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Strict Product Liability Claims

Web Admin - Monday, September 21, 2015

When an individual is injured by a product, recovery of damages may be possible through a products liability claim. Under this type of claim, manufacturers, sellers, or other suppliers of products are held liable to consumers who are harmed by those products. And in some cases, product liability claims may fall under the theory of strict liability.

Defective Products

In order to recover under a products liability claim, the plaintiff must show that the product was dangerous or defective. Generally, the law requires that products meet the ordinary expectations of consumers. When a product defect exists, those expectations are not met. A defective product is one that, at the time of its sale or distribution, contains a manufacturing defect, is defective in its design, or that has a marketing defect.

A manufacturing defect occurs when a product is not made according to its intended design. A design defect occurs when the foreseeable risks of harm posed by the product could have been reduced or eliminated by the adoption of a reasonable alternative design. A product contains a marketing defect when it has inadequate instructions or warnings and the foreseeable risk of harm could be reduced by the inclusion of reasonable instructions or warnings. Additionally, the omission of such instructions or warnings must cause the product to be unreasonably dangerous.

Strict Liability

Pursuant to Illinois law, product liability claims are any action based on strict liability brought against the seller, manufacturer, or distributor of a product that causes personal injury. Under this type of claim, a defendant pays for harm caused by a product even though the defendant did not act intentionally or negligently. In other words, the defendant’s actions or behavior is not relevant to the determination of liability. Rather, for a strict liability claim, the plaintiff must show the following:

  1. 1. The injury resulted from a condition or defect of the product manufactured or sold by the defendant;
  2. 2. The condition or defect of the product was unreasonably dangerous; and
  3. 3. The condition or defect existed at the time that the product left the control of the manufacturer.

Product liability claims are commonly brought against the manufacturer of a product, but they may also be brought against:

  • - Manufacturers of component parts that go into a product;
  • - Parties that assemble or install a product;
  • - Wholesalers;
  • - Retail stores that sell a defective product to a consumer; or
  • - Under Illinois law, anyone involved in the placement of a product into the stream of commerce.

Under the statute of limitations, product liability claims must be brought within two years of the date on which the plaintiff knew, or should have known through the use of reasonable diligence, of the personal injury.

Product liability claims can provide compensation for victims, while also holding those involved in the production and sale of defective products accountable. For more information about product liability claims, contact a dedicated Illinois personal injury attorney today. Our firm provides representation throughout the northwest suburbs, in the communities of Crystal Lake, Schaumburg, Palatine, Des Plaines, Rolling Meadows, Buffalo Grove, Barrington, Arlington Heights, Inverness, and Deer Park.

Ken ApicellaAbout the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.


Source:

http://www.ilga.gov/legislation/ilcs/documents/073500050K13-213.htm

Fire Safety and Landlord Responsibility

Web Admin - Thursday, December 18, 2014

Illinois smoke detector, landlord responsibility, Schaumburg personal injury attorneyWith the nights getting longer and the days getting colder, fire safety is especially important during the holiday season. In fact, according to the Federal Emergency Management Agency's statistics, over $2 billion in property damage occurs every year as a result of winter fires. The culprits can vary from holiday cooking and decorating, to an increased use of space heaters to keep out the chill. Fortunately, there are numerous steps that people can take to keep themselves safe from fire damage during the winter. Additionally, landlords should pay special attention during this season, so that they can be sure that they understand their fire responsibilities.

Fire Prevention Tips

Some fire prevention tips like making sure to maintain working smoke detectors are repeated year round, but there are some special things that people can do during this time of year to reduce their risk of fire. One of the major culprits of holiday fires are holiday decorations. People can find it tempting to string together strand after strand of lights, but these sorts of decorations are only built to connect so many times. Plugging too many into each other can risk creating a spark.

Holidays also tend to be a time of year where there are a lot of open flames around the house. Whether it is a fire in the fireplace or a set of candles in a menorah, these can pose a serious risk if people do not properly supervise them, or they keep them too close to flammable items like curtains or dried out Christmas trees. Similarly, excessive use of space heaters, especially overnight or when no one is home, can also set fire to household objects.

Landlord's Responsibilities

Landlords also have a variety of special responsibilities during this season. One of the most important is set out in the Illinois Smoke Detector Act. This Act makes it the responsibility of a building's owner to install smoke detectors, and to maintain the detectors in common areas like hallways. Similarly, it makes it the tenant's responsibility to maintain the detectors that the owner has put in their living areas, and it makes it the tenant's responsibility to notify the landlord if there is a problem with the detector that they cannot fix.

Landlords also have a duty to ensure that their building is up to local building codes. This includes having safe electrical wiring, which can be especially important around the holiday season. Failure to maintain adequate wiring can be a fire risk, and even if it does not cause a fire it violates the tenant's right to a habitable structure.

Fires can be some of the most devastating disasters on a personal level. If your home was damaged or destroyed in a fire and you think someone else was to blame, contact an Illinois personal injury attorney today. Our team represents people across the northwest suburbs, including in Schaumburg, Mount Prospect, and Arlington Heights. Call Drost, Gilbert, Andrew & Apicella, LLC to schedule a consultation with an experienced lawyer.

Ken ApicellaAbout the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

Boating Safety Laws in Illinois

Web Admin - Tuesday, July 22, 2014

illinois boating accident lawyerOne of the most common summer activities around Illinois is boating. It is a great way for people to get out and enjoy the water and the good weather. However, boating is also a dangerous activity if people do not do it with the proper care. 

Consequently, Illinois has a variety of boating safety laws in place to help ensure that everyone can safely take advantage of the summer weather while it lasts. These laws were recently updated following the death of a 10-year-old boy in an alleged drunk boating accident. The new laws include further restrictions and increased penalties on operating a boat while under the influence of alcohol, special signaling requirements for safety and visibility, and boating licenses for younger operators.

Boating and Alcohol

One of the most common causes of boating fatalities is the improper use of alcohol while boating. Just like driving a car, operating a boat while intoxicated increases the risk of death or serious injury while on the water. In fact, according to the Illinois Department of Natural Resources, despite alcohol being involved in approximately one in six boating accidents overall, it has been a factor in one-third of the boating deaths this year.

Boaters should keep in mind that the legal limit for operating a boat or personal watercraft is the same as it is for driving a car: 0.08 percent blood alcohol content. The penalties for such violations can be severe, including thousands of dollars in fines and up to 14 years in prison if the impaired boat operation results in a person's death. Additionally, if a person is convicted of three DUIs, then the state may take their boat from them as part of the penalty. Boating DUIs can also affect a person's ability legally to drive their car since courts may punish intoxicated boaters by suspending their driver's licenses.

Signaling and License Requirements

The updated laws also have new requirements as far as signaling and licensing requirements are concerned. Now, any boat that is pulling someone behind it in a tube or on water skis must display a bright orange flag from the highest point on the boat. The flag must be at least a one-foot square, and it must stay out the entire time that the boat pulls the person. The law also added a new license requirement for boat operators between the ages of 12 and 17. Starting in 2016, minor operators must complete a boating safety course before they can operate a motorboat.  

If you have recently been involved in a boating accident caused by the negligence of others, contact an experienced Illinois personal injury attorney today. Our skilled team of lawyers represents clients in many northwest suburban towns like Rolling Meadows, Barrington, and Crystal Lake.

About the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

Swimming Pool Accident Injuries and Legal Concerns

Web Admin - Thursday, April 24, 2014

illinois swimming pool injury attorneyNow that the warm weather is finally on the way, people across Illinois are starting to look forward to a nice summer swim. However, this relaxing summertime activity can quickly turn dangerous if people are careless. Hundreds of people each year die as a result of water related injuries, according to information compiled by the Centers for Disease Control. Young children are at especially high risk for these injuries, accounting for approximately 20 percent of those deaths. Yet, people who suffer swimming injuries like this are not without recourse. There are a variety of legal claims available for the different injuries that may occur due to a swimming accident.

Types of Swimming Pool Injuries

Swimming pools can be responsible for a several different types of injuries. One of the most common is, of course, fatalities caused by drowning, but swimming pools can be dangerous in other ways as well. For instance, even if a person survives nearly drowning, the oxygen deprivation can cause permanent brain damage. Further, people diving into pools can often injure themselves by failing to check the depth of the water, which can cause them to strike their heads on the bottom of the pool. This can result in traumatic brain injuries like concussions, as well as damage to a person's spinal cord.

Types of Legal Claims for Swimming Pool Accidents

When a person sustains an injury in a swimming pool, they have two legal claims that they can pursue: premises liability and products liability. Premises liability, probably the more commonly used argument, takes effect when a person injures themselves on someone else's property. The law gives landowners a duty to use reasonable care to ensure that others do not injure themselves because of defects or hazards on their property. That means that pool owners may be liable for a person's injuries if they failed to properly maintain or secure their pool and someone was injured as a result. For example, if a pool owner failed to properly label the pool's shallow end, and a child dove in and injured their head or spine, the pool's owner may be liable for that injury.

Products liability claims do not attempt to hold the pool's owner liable, but are instead aimed against the poo's manufacturer. These claims occur when there is some inherent defect in the pool's manufacturing or design that made it unsafe for public use. Suppose the manufacturer improperly designed one of the pool's drains, and someone got their hand stuck in it, resulting in an injury. That injury might give rise to a products liability claim against the manufacturer since they should have made sure that their product was safe before bringing it to the market.

If you or your child has recently been injured in a swimming pool accident, seek help from a skilled Illinois personal injury attorney. Our firm lends its experience to clients across the northwestern suburbs, including Buffalo Grove, Barrington, and Crystal Lake.

About the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

Jet Ski Accidents and Injury Lawsuits

Web Admin - Tuesday, April 15, 2014

illinois jet ski injury lawyer

With the warmer months approaching, people are once again going to start taking advantage of Lake Michigan, the Fox River, the Chain of Lakes and other inland waterways. Among the many popular waterfront activities available are the use of jet skis, also known as personal watercrafts (PWCs). While these PWCs are a fun way to spend a summer afternoon, they can also turn dangerous if riders do not take proper precautions. In fact, according to the U.S. Coast Guard, hundreds of people each year are killed or injured in PWC accidents. Many of these accidents are caused by careless PWC operators, but there are also other people who could be held responsible.

Responsibility for Jet Ski Accidents

The majority of lawsuits related to jet ski accidents proceed against the PWC’s driver based on the legal theory of negligence. Negligence is a legal doctrine that requires people to pay for harm that they caused through their own carelessness. Common negligent causes of PWC accidents include excessive speed, distracted boating, and operating a PWC while under the influence of drugs or alcohol.

However, more people than just the operator of the jet ski could be responsible for the crash. For instance, many companies rent PWCs to tourists or beachgoers. These companies are responsible for properly maintaining their jet skis and making sure that the people to whom they rent are competent pilots. A failure to fulfill either of these requirements could make them liable for damage that their jet skis cause.

Courts may also hold the manufacturers of the jet ski in question responsible for harm that comes to users. This would happen under the products liability doctrine, which requires companies to pay for dangerous products that they make. There are several types of flaws that could give rise to a products liability lawsuit: design defects, manufacturing defects, and failures to warn:

  • Design defects occur when the producer of the jet ski fails to design it safely enough. For instance, a jet ski designed so that a hot wire next to the gas tank presents a fire risk might qualify as a design defect.

  • Manufacturing defects occur when the company designs the PWC properly, but fails to build it to the right specifications. A flawed manufacturing process that led to the jet ski having a leaking hull could be a manufacturing defect.

  • Failures to warn are slightly different. Rather than resulting from an inherent danger in the product, they arise when the manufacturer fails to warn the user about a possible danger in the product or fails to provide enough instructions about the safe way to use the device.

If you have been injured in an accident with a PWC, seek the counsel of a skilled Illinois personal injury attorney. They can examine your specific case and identify different parties who may be responsible for your injuries. Our firm helps clients in a variety of northwest suburban towns including Rolling Meadows, Buffalo Grove, and Inverness.

About the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

Pedestrian Traffic Accidents in Illinois

Web Admin - Thursday, March 13, 2014

illinois pedestrian accident attorneyWhile many traffic accidents can cause the victims serious injuries, accidents involving a car and a pedestrian can be particularly devastating. The pedestrian’s complete lack of protection can leave them especially vulnerable to injury. In fact, of the hundreds of pedestrian-vehicle accidents that happen each year in suburban Cook County, almost 25 percent of them result in fatal or incapacitating injuries, according to the Illinois Department of Transportation’s crash summary report. Pedestrians should be aware of the common causes and consequences of traffic accidents, as well as the legal ramifications of one, in order to keep themselves safe.

Causes and Consequences of Pedestrian Traffic Accidents

Traffic accidents involving pedestrians have a wide variety of different causes. One of the most common causes is simple carelessness on the part of the driver. Failing to stay alert for pedestrians at crosswalks and in the street can lead to serious accidents. Evening and night driving can also exacerbate these problems because the low light makes people more difficult to see. 

This is especially true for elderly drivers whose increased risk for vision problems already makes them more likely to be involved in car accidents. Violations of traffic laws are also common causes of pedestrian injury, especially driving under the influence and speeding. Accidents resulting from speeding can be particularly problematic because the higher speeds can cause more severe injuries to the unprotected pedestrian.

When these accidents do happen, the injuries that arise can be quite serious. Pedestrians can experience a range of injuries, including:

  • - Broken bones;

  • - Head trauma;

  • - Brain injuries;

  • - Paraplegia;

  • - Quadriplegia;

  • - Amputations;

  • - Disfigurements; and

  • - Injuries to the neck, back, and spinal cord.

The Legal Side of Pedestrian Traffic Accidents

These sorts of accidents can give rise to personal injury claims on the part of the pedestrian if they suffer a serious enough injury. The personal injury case will hinge on the legal concept of “negligence.” This means that the driver, or their insurance, will likely have to compensate the pedestrian for their injuries if the court finds that the driver acted negligently, meaning that they acted without reasonable care for the other people around them. This concept is also important when judging the pedestrian’s actions, because the pedestrian may have been negligent as well.

For instances in which both the pedestrian and the driver were negligent, Illinois judges fault based on “comparative negligence.” The doctrine of comparative negligence means that a person’s ability to recover for their injuries is reduced if they were also acting carelessly. For example, if a pedestrian is 20 percent responsible for their injuries, they would only be able to recover 80 percent of their costs. Furthermore, if a pedestrian is more than 50 percent responsible for their own injuries, they cannot recover at all.

If you have recently been involved in a pedestrian-automobile accident, contact an Illinois personal injury attorney in your area. We represent clients in matters like this in many northwest suburban towns, such as Crystal Lake, Des Plaines, and Arlington Heights.

About the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

Dealing with Insurance Companies: Examinations under Oath

Web Admin - Saturday, January 04, 2014

If you recently filed an insurance claim, then you may have just received a request to participate in an examination under oath (“EUO”). An EUO is an interview that an insurance company’s lawyer conducts to investigate a recently filed claim. While receiving an EUO does not mean that the company will deny the insurance claim for sure, it tends to signal that the company found some issue that they would like to investigate further.

What Happens at an EUO?

An EUO is a formal process involving the insurance company’s lawyer as well as a court reporter who will transcribe everything said at the examination. The examination begins with a swearing in, making it a felony to lie under Illinois law. After that, the company’s attorney will start asking you questions. These questions will probably start out with basic questions of your or your family’s background including things like employment or criminal histories. It may then move into an examination of your finances, such as credit history or past bankruptcy filings.

Once the other side’s attorney establishes a baseline, the questions can move on to the specific event at issue in the claim. These questions can include a recounting of your story of the events and questions about your policy choices. In some instances, like fires insurance, the questions may even relate to whether you have an alibi. In this part of the process, the insurance company will look for inconsistencies with your prior recorded statement, so a consistent retelling of the facts is important.

Before the EUO, the company will do some investigation of its own surrounding the circumstances of the claim, as well as any irregularities from past claims. Consequently, you should be prepared for unexpected questions or inquiries into facts you did not know they had access to. Additionally, at the EUO the company can make you produce certain other documents to aid them in their investigation of the claim. These documents include tax returns, credit card statements, and cell phone records among other things.

Do I Need an Attorney?

While the law makes no formal rule saying that you need an attorney to participate in an EUO, having one present to represent you is advisable. The insurance company will have an attorney there, so having one of your own can help even the odds. Additionally, these examinations take place without a judge present, so an attorney on your side can help keep the company’s lawyer in check.

If you have recently received a request for an EUO, contact an experienced Des Plaines insurance dispute attorney. We serve many northwest suburban areas including Rolling Meadows, Deer Park, and Schaumburg.

The Hazards of Electricity in Workplace Accidents

Web Admin - Wednesday, December 18, 2013

By Ken Apicella

847 934-6000

kca@dgaalaw.com

http://www.dgaalaw.com/ken-apicella.html

Electricity is a common part of people’s everyday lives. Because it is so accessible, people often forget how dangerous it can be. In fact, hundreds of people die each year in accidents related to electricity, many of them while at work. Even though Occupational Safety and Health Administration (OSHA) regulations mandate safe insulation or grounding around all electrical circuits, workers can still benefit from knowing the types of injury that electricity can cause and how electrical injuries happen.

Types of Electrical Injury

Electricity can cause three very different types of injury: burns, muscle contractions, and internal injuries.

Electricity causes burns in two ways. First, if a person suffers an electric shock, the electricity can heat up their body to the point that it burns the body along the path of the current. Second, faulty electrical equipment can overheat, or give off electrical arcs. These can cause burns to those nearby, even if the person does not actually come in direct contact with the source of electricity.

It also interferes with muscle function. Because our bodies trigger muscle contractions through electrical signals, electrocution can cause severe, involuntary muscle spasms. These can lead to muscular damage or even broken bones.

Electrocution also affects the function of a person's internal organs. Depending on the strength of the electrical shock, it can lead to internal bleeding and nerve damage. More serious shocks may even lead to cardiac arrest, which can be fatal in some circumstances.

How Electrical Injuries Happen

Electrical injuries may occur in a variety of different ways. For instance, extension cords can lead to electrocution if used improperly. Careless use of extension cords can cause them to fray or loose insulation, which exposes dangerous live wires. Additionally, some extension cords do not come with built-in ground wires, which can add to the danger.

Improper use of other equipment can also lead to electrical injuries. Modified tools or wires, jury-rigged extension cords, and improperly rated circuit breakers can all cause electrocution. One common yet dangerous modification is the removal of ground pins from wires. This allows a three-pronged plug to fit into a two-pronged outlet, but it puts the tool at a higher risk of malfunction. Of course, these examples represent just some of the many ways that improper safety precautions can cause electrocution.

If you or a loved one recently suffered an electrical injury that you believe may qualify for compensation, contact a Des Plaines personal injury attorney today. Our experience can help you get the payment that you deserve. We serve many areas in the northwest suburbs including Palatine, Inverness, Buffalo Grove, and Arlington Heights.

Motorcycle Crashes in Illinois: How to Stay Safe and What to If You Can’t

Web Admin - Wednesday, November 13, 2013

Motorcycle crashes represent a particularly dangerous brand of traffic accident, often with far more serious injuries than a typical car wreck. A report issued by the Illinois Department of Transportation stated that, even though motorcycle accidents made up only 1.6 percent of total crashes in Illinois, the proportion of the total crashes that involved a fatality shoots up to 16.7 percent. With accidents that are so often so dangerous, riders should know what steps they can take to keep safe, as well what they should do in the unfortunate event that they end up involved in a serious accident.

How to Drive Safe

As with all motor vehicles, following the rules of the road, and practicing defensive driving are key to a safe, enjoyable ride. However, Illinois law places restrictions on riders beyond those of a normal car. Illinois law requires:

  • • The use of the bike’s headlights at all times, regardless of weather conditions or light levels;
  • • Motorcyclists to refrain from lane splitting, or driving between two lanes of traffic;
  • • Proper seats and footrests if the motorcycle is carrying a passenger;
  • • Insurance coverage similar to that required of automobiles.

  • Riders can also take further steps to ensure that they stay safe. Helmets, while not required by law in Illinois, can decrease the likelihood or severity of head trauma, a common cause of death in motorcycle accidents. Additionally, regular bike maintenance can decrease incidence of equipment failure mid-ride, which makes getting into an accident less likely.

    What to do After an Accident

    The steps to take after a motorcycle accident very much resemble those taken after a car crash:

    1. 1. Check on everyone involved in the crash to see if anyone needs immediate medical attention.
    2. 2. Call 9-1-1, to inform them of the accident; do this even if no one has been seriously hurt, since you should still report the accident to the police.
    3. 3. Collect as much contact information as you can from the other people involved in the crash, especially a phone number, license plate number, driver’s license number, and insurance information
    4. 4. Document the scene of the accident. If you have a camera or a camera-phone handy, get pictures of the scene, as well as the individual vehicles involved. If you don’t have a camera available, try to take some pictures of the damage to your bike once you get home.
    5. 5. After you have spoken with the police and made your report, contact your insurance company to report the accident. They may ask you for an interview to provide them with the details of the accident. Make sure not to provide this information without first consulting with an attorney.

    If you have recently been injured in a motorcycle accident, contact an experienced Schaumburg personal injury attorney today. Call 847-934-6000 to speak to a member our team today. We serve the northwest suburbs of Chicago including Rolling Meadows, Arlington Heights, Buffalo Grove, and other nearby communities.



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