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In The Media :

Negligence Introduction

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Lawsuits sounding in negligence are often filed in the State of Illinois, and are commonly referred to as the “civil justice system.” In order to bring a negligence action in Illinois, an injured person must usually show that:

  • The Defendant owed a duty of care to someone;
  • The Defendant violated that duty by failing to act in a reasonable manner; and,
  • The Defendant’s failure to fulfill the duty caused injury to another;

For example, imagine the situation of an intoxicated motorist entering a highway at 90 miles per hour, striking another person and causing injury. The motorist holds a duty to operate a motor vehicle safely to other motorists and pedestrians on the roadway. Striking and injuring another person as a result of drunk driving is negligent. Under such circumstances, the drunk driver could be sued in an Illinois Court, and the jury verdict would probably award the costs of medical care, pain and suffering, and lost wages to the injured person.

There are many types of negligence actions that can be filed. Common questions about negligence actions include:

Frequently Asked Questions

What kind of negligence lawsuits can I file?

There are many types of negligence that provide recovery when a person has been injured. Common theories of recovery include:

  • Wrongful Death / Survival Actions (Insert hyperlink)
  • Motor Vehicle Accidents; (insert hyperlink)
  • Motorcycle Accidents; (insert hyperlink)
  • Drunk Driving Accidents; (insert hyperlink)
  • Nursing Home Violations (codified into the Nursing Home Care Act); (insert hyperlink);
  • Medical Malpractice; (insert hyperlink)
  • Dog Bites; (insert hyperlink) and,
  • Premises Liability; (insert hyperlink)

Therefore, it is important that any attorney you consider retaining can explain not only the legal theories underlying negligence to you, but also basis of that theory. Your attorney should also be able to explain the insurance claims process, because oftentimes most wrongful death and survival actions begin with filing claims for insurance coverage.

How do I file a negligence lawsuit?

Your attorney will usually file the lawsuit in the county where the action forming the basis of the injury occurred. For example, a person injured by a drunk driver in Springfield, Illinois, would likely be filed in Sangamon County, with the Seventh Judicial District Court. The Illinois Code of Civil Procedure states:

§ 2-101. Generally. Except as otherwise provided in this Act, every action must be commenced (1) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him or her and not solely for the purpose of fixing venue in that county, or (2) in the county in which the transaction or some part thereof occurred out of which the cause of action arose. 735 ILCS 5/2-101.

The “Plaintiff” is usually the person who was injured, or, if the injured persons died as a result of their injuries, the administrator of the probate estate, who files the lawsuit on behalf of the deceased person and living heirs. The lawyers will file a “Complaint at Law,” describing the negligent acts of the Defendant and describing the types of injuries sustained. For example, the Complaint may allege that an intoxicated motorist disregarded a stop sign, thereby killing the driver of another automobile. The Complaint will request that monetary damages be paid to the decedent and his heirs.

How is an insurance company involved in a negligence claim?

Most types of negligence lawsuits involve situations where the “tortfeasor” or “Defendant” (i.e., negligent person or entity) carries insurance. The insurance companies often “indemnify,” or pay monetary benefits, to the injured person on behalf of the Defendant in cases of negligence.

For example, consider the case of the drunk driver who drives the wrong way down a one-way road, who then strikes and injures an innocent motorist. The drunk driver was required by Illinois law to carry car insurance. And, if the drunk driver did not have car insurance, the chances are likely that the innocent motorist did have something called “uninsured” car insurance coverage. Either way, a competent attorney should know how to work with the insurance providers to obtain medical coverage for the injured, innocent motorist.

Who is sued in a negligence action, the individual who caused the injury, or the insurance company?

Generally, the person or company who caused you or your loved one’s injury is sued as the Defendant. However, when a negligence suit is filed, the insurance company usually pays for the Defendant’s attorney and other costs of litigation. The insurance companies then typically will “indemnify” the Defendant and pay for any funds obtained through settlement or jury verdict.

For example, consider the case of a nursing home that forgets to provide necessary diabetic medication to a resident, which causes substantial injury. That nursing home likely holds insurance to cover such “negligent” acts and omissions, and will often pay for the resident’s medical bills sustained as a result of the negligence.

Under this example, the resident would likely file suit against the nursing home in the county where the injury occurred. If the case went to jury trial, the damages (i.e., money) awarded by the jury would be paid by the insurance company, to the extent of policy coverage.

What happens during a negligence lawsuit?

As discussed above, the Plaintiff or their legal representative will file suit against the Defendant. The process begins when the attorney files a “Complaint at Law,” seeking monetary damages for the Defendant’s negligent behavior.

After the Complaint is filed, the Defendant is served. Your attorney will arrange for “summons,” to be issued, and request local law enforcement or a private investigator to serve the legal paperwork on the Defendant. Once the Defendant is served, he or she typically has 30 days to enter an appearance and claim any possible legal defenses. Usually, an attorney enters an appearance on behalf of the Defendant.

After the Defendant’s attorney has entered an appearance, discovery will commence. This process usually involves exchanging copies of the evidence held by the Parties, and taking the depositions of witnesses. Depending on the complexity of the litigation, experts will may be retained for trial. Their depositions will also be taken.

Your attorney may also choose to file requests for admission and other legal documents in order to simplify the issues presented at trial. Following the close of discovery, summary judgment motions and other pre-trial motions will be heard. Trial preparation will then begin in earnest. Witnesses will be subpoenaed, trial exhibits prepared, and other pre-trial paperwork will be filed. Jury instructions will be prepared. Jury trial should follow shortly thereafter. When the jury awards a verdict, the sums are usually paid by the insurance company. If a person died as a result of the negligent actions, the probate judge will decide how the funds are distributed.

What are the costs of litigating a negligence suit?

Costs of litigation vary wildly in negligence actions, ranging from $3,000.00 to over $80,000.00. This is because there is a great variety in the complexity of litigation, spanning medical malpractice, motor vehicle collisions, and nursing home violations. Any attorney you choose should be able to explain the differences in types of litigation, and how it will affect your litigation costs.

For example, consider the rather “cut and dry” case of the drunk driver who disregards a stop sign and breaks the leg of another motorist. Litigation costs may be rather low, consisting of taking the depositions of the witnesses to the collision, paying court-reporters, potential crash reconstruction experts, and deposing emergency room doctors to testify that the injury was caused as a direct result of collision. The case would be rather simple to prove and would mostly be an issue of monetary damages. On the other end of the spectrum, consider a medical malpractice claim in which a physician “misses” a cancer diagnosis. Multiple independent expert oncologists will likely be hired to provide opinions of causation. There will be an extensive investigation into the medical history of the decedent, defenses involving causation, and the majority of the decedent’s treating physicians will need to be deposed. The defense will likely argue that the cancer would have caused the person’s death, regardless of when it was diagnosed. Such a case would likely cost close to $100,000.00 to take to trial.

For this reason, most attorneys litigate their cases on a “contingency fee” basis, whereby they are only paid if successful in obtaining a settlement or jury verdict. The costs of litigation are paid from the settlement or jury verdict funds, together with the attorney’s legal fees. A competent and ethical attorney will provide you with a frank analysis of whether the costs of litigation are outweighed by years of litigation and potential loss at trial.

If we go to jury trial and win, can the Defendant be ordered to reimburse my legal fees?

Generally, negligence cases that go to trial result in an award of medical costs, lost wages, pain and suffering, grief and loss of companionship, and other damages. Attorneys fees and costs are not usually included, unless a special Illinois law has provided for the same. For example, nursing home cases filed under the Illinois Nursing Home Act specifically provides that the Defendant “shall” pay the attorney’s costs and fees if a favorable verdict is obtained at trial. The same would not occur in a wrongful death action arising from a drunk driving claim. A competent attorney should be able to explain your claim, and potential awards, in great detail to you.

How do I prepare for my legal consultation with the Noll Law Offices?

To expedite legal review of your claim, you should bring a copy of the medical records, police investigations, photographs, videos, Facebook pages, text messages, correspondence, insurance information, and any other evidence in your possession to your claim. The attorney will review the records, together with any other evidence in your possession, and provide you with a free legal opinion as to the merits of your claim.

At Noll Law Offices, our attorneys have over 50 years combined legal experience. Our family firm is renown for compassionate communication with clients and aggressive advocacy in court. We look forward to jury trials, and will keep you abreast with all steps in the litigation process.

If you or a loved one would like a free consultation, call today at (217) 544-8442. You will not be a charged unless our firm obtains a settlement offer on your behalf, or wins at trial.

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Noll Law Office, LLC
930 East Monroe Street,
Springfield, Illinois 62701
Tel: 217-414-8889

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