Friday, May 31, 2013

DISCLAIMER: You Have No Legal Rights For Injuries at Your Gym

Most everyone has or had a gym membership.  Some use it more than others.  From the small facility down the street to the colossal monstrosities like Lifetime Fitness, fitness centers come in all shapes and sizes, much like the people that frequent them.  Regardless of your gym’s size, however, they all have one thing in common.  They make their members sign a disclaimer prior to becoming a member.  Most people never read these disclaimers.  Likewise, most people never consider that they could suffer a catastrophic injury while working out at their gym.  Tell that to Sahal Hussein.    

In Hussein v. L.A. Fitness, 2013 IL App (1st) (2013), the Illinois Appellate Court examined a disclaimer signed by Sahal Hussein.  Sahal signed a fitness contract with L.A. Fitness.  He was severely injured when he fell off of an assisted dip/chin machine causing him to strike his head.  As a result of the fall, Sahal was rendered a quadriplegic.  The fitness contract that Sahal signed contained the following disclaimer: 

IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY.  You hereby acknowledge and agree that Member’s use of L.A. Fitness’ facilities, services, and equipment or premises involves risk of injury to persons and Member assumes full responsibility for such risks.  Member hereby releases and holds L.A. Fitness harmless from all liability to Member for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to Member’s person or property, including injury leading to the death of Member, whether caused by the active or passive negligence of L.A. Fitness or otherwise, to the fullest extent permitted by law, while Member is in, upon, or about L.A. Fitness premises or using any L.A. Fitness facilities, services, or equipment.  Member has read this release and waiver of liability.

Sahal filed suit against L.A. Fitness for his catastrophic injury arguing that L.A. Fitness was negligent in failing to maintain and inspect its fitness equipment and by failing to monitor, supervise, or instruct club members on how to use the equipment.  L.A. Fitness filed a motion to dismiss arguing that the disclaimer trumped his personal injury action.  The trial court agreed and Sahal appealed. 

The Illinois Appellate Court examined whether the disclaimer at issue was valid.  First, the court sought to determine whether the disclaimer (exculpatory clause) was enforceable as a matter of law.  The court noted that the public interest in the freedom of contract generally allowed the enforceability of exculpatory clauses like the disclaimer at issue.  However, if a disclaimer is ambiguous, courts have been reluctant to enforce them.  The main question was whether the disclaimer was so vague, general, or broad so that it failed to properly alert the other party of the what legal rights they were signing away. 

Applying Minnesota law (where the agreement was originally signed) while also noting its striking similarity to Illinois law, the court determined that the disclaimer was “clear, explicit, and unequivocal.”  Id. at 19.  The court held that the disclaimer properly identified the range of dangers the fitness member was exposed to, the assumption of that risk, and alerted the member to exercise a greater degree of caution to protect him or herself.  Id.  The court also rejected Sahal’s public policy argument noting that as a private corporation, L.A. Fitness was under no legal duty to take on Sahal as a member.  Id.  As such, it “had the right to insist on the terms it deemed appropriate.”  Id.  Furthermore, the services provided by L.A. Fitness were not so essential to the general public so that public policy mandated that the disclaimer be disregarded.  Id. at 18.    

Remarkably, disclaimers like these are upheld much more often than they are negated.  Even more disturbing is that they can even to apply to someone hurt because of a defect on the fitness club’s shower floor or even if your personal trainer is negligent in the way in which he or she has you perform a particular exercise.  What if you are simply walking in the gym and a light fixture falls onto your head?  It would seem quite extreme to allow such a disclaimer wipe out your claim under those set of facts.  The message to fitness members can easily be gleaned from the court’s decision in the Hussein case.  Buyer beware!

What do you think about these disclaimers?  Do you think it is fair to allow a corporation to limit its liability even if the corporation negligently causes injury?  Or, on the other hand, should freedom of contract allow corporations to shift the risk of harm to its customers?    

Monday, May 13, 2013

Jurors Have Questions Too! The New Wave of Jury Participation at Trial

Anyone that has been keeping up with the Jodi Arias murder trial has seen a rather peculiar and unique participation by the jury throughout the trial, the jury's questioning of witnesses. It is a rather interesting thing. Each juror has the right to submit questions to ask of a witness and in most instances, the judge reads any questions he or she deems appropriate. The witness answers the question just as if one of the attorneys had asked it. Each side can object to the question outside of the presence of the jury and can object to the witness' response just as if the other lawyer had asked the question.

On July 1, 2012, Illinois became the most recent state to jump onto the bandwagon of allowing jurors to ask questions during trial. Before Illinois enacted Illinois Supreme Court Rule 243, jury questions were mandated in other states such as Arizona, Colorado, Indiana, and Wyoming. The benefits in allowing jurors to ask questions at trial are numerous. First, it gives an attorney a snapshot into how his or her case is going and if anything needs to be tweaked in regards to the case theory, presentation of evidence, or overall questioning of witnesses. Additionally, it makes jurors feel like they are more a part of the process and helps alleviate the tendency of jurors to become bored by the monotonous process of trial. Moreover, if a juror is confused by the evidence or a witness' testimony, a juror's question could completely clear up the confusion. Obviously, this would lead to more informed and reasoned verdicts which should be welcomed by all members of the legal profession.

That is not to say that there aren't pitfalls in allowing such questions. More questions lead to longer trials. While it may not matter in a case where there is a plaintiff, a defendant, and one or 2 doctors testifying, cases in which there are a substantial number of witnesses and experts would lead to much lengthier trials. Should that matter? Perhaps not in the criminal justice arena where a person's life is routinely hanging in the balance. Even in the civil arena, shouldn't we strive for jury verdicts which are based upon a juror's full understanding of the issues, the law, and any questions they have during the process? The other potential negative in allowing such questions is that too much emphasis might be placed upon the question of a particular juror. Could a juror's question regarding a red herring issue improperly sway a jury's decision and lead to unjust results? On the other hand, might those questions be asked in deliberations anyway after it is too late for either side to shift the jury's attention back to the main issues of the case?

While relatively new to the legal system, it seems the positives of allowing jurors to ask questions during trial outweigh the potential negatives. Such questions allow jurors to feel more a part of the trial process and at the same provides helpful insight to the attorneys regarding their case presentation at various stages of the trial.

Have you had an experience with jurors asking questions of witnesses at trial? Do you think it is a good practice? Why or why not? All comments are greatly appreciated.

Thursday, May 9, 2013

Medical Marijuana in Illinois

Illinois is very close to becoming the latest state to legalize marijuana for medical use. The Compassionate Use of Medical Cannabis Pilot Program Act passed the Illinois House of Representatives last month.  Last week, the Bill passed the Illinois Senate Executive Committee.  The Bill will be back before the full Senate on May 14, 2013.  (Updates HERE.)  

If this Bill becomes law, a whole new industry will emerge overnight.  There is a tremendous amount of money at stake.  No one is talking about big business's involvement however.  The media reports always seem to focus on the cannabis users.  Do the patients have legitimate medical issues?  Does the cannabis provide legitimate medical relief?  Those media reports bore me.  I could not care less whether a licensed user of medical cannabis really has a legitimate medical ailment or whether his "symptoms" were an elaborate ruse to obtain a prescription.  I am much more interested in the cannabis providers.  They're the ones who really stand to gain or lose from this deal. For instance, who is going to grow it?  Who is going to sell it?  And, most importantly, do those people or companies need a lawyer? (Insert winky-faced emoticon here.)  

I've spent the last several days skimming the 211-page Bill.  The Bill provides for up to 22 cultivation centers throughout the state.  The cultivation centers will be governed by the Illinois Department of Agriculture.  The Bill also provides for 60 dispensing organizations to be governed by the Illinois Department of Financial and Professional Regulation.  As you can imagine, the application process to be become a licensed cultivation center or dispensing organization is fraught with red tape.  For those companies lucky enough to obtain one of the coveted licenses, the renewal and yearly compliance hurdles will be significant.  They're going to need teams of good lawyers.  

There are plenty of other interesting tidbits in the Bill.  For example, the Bill deals with employment and housing discrimination of licensed medical cannabis users, whether the fact that someone is a licensed medical cannabis user can be used against him or her in a child custody hearing (it can't), how licensed medical cannabis will affect the DUI laws, when and where licensed medical cannabis users can "administer their cannabis," etc.  

If anyone has any questions about this topic, or any other topic, please send me a confidential email HERE.

Saturday, May 4, 2013

The Illinois Humane Care for Animals Act

The Humane Care for Animals Act (the "Act") provides for criminal and civil penalties for people who neglect, abuse, or otherwise mistreat animals in Illinois.  The Act prohibits the cruel treatment and torture of animals.  It also requires that animals be given humane care and treatment, adequate shelter, and veterinary care when needed.  The Act defines "animals" to include every living creature, domestic or wild, in the state, but does not include man.  

Although the Act speaks in very broad terms, it tries to give some clarification.  The Act states that "nothing affects normal, good husbandry practices utilized by any person in the production of food, companion or work animals, or in the extermination of undesirable pests."  The Act also states that the Illinois Wildlife Code and the Humane Slaughter of Livestock Act shall trump in the event of a conflict.  So, theoretically,  mice and undesirable pests can still be exterminated, mosquitoes can still be swatted, hunters can still hunt, and chicken and hogs can still be slaughtered for food.  And normal, good livestock procedures on farms should not be affected.

The law is not entirely clear, however, because one person's undesirable pests may be another person's desirable pets.  And there is not always a clear line between good livestock procedures and poor ones, for instance.  Adding to the confusion is that law enforcement officials generally only investigate after receiving a complaint from a neighbor or passerby, who may have ulterior motives, and even then the police are rarely involved. Complaints about an animal's welfare are usually investigated by "approved humane investigators," not the police.

Approved humane investigators can be hired or authorized by the Department of Agriculture.  The investigators are usually animal control officers employed by the county or they are employees of non-profit organizations, such as the Humane Society.  Either way they're given the power to come onto private property to investigate.  They can write tickets and seize animals.  If needed, the investigators can seek the assistance of the police or state's attorney.  Violations of the Act can be charged as misdemeanors or felonies.

The Act also provides for civil lawsuits against people who commit cruelty to animals.  If my dog is maliciously killed or injured by another person, I can sue that person for damages, including damages for  emotional distress.  I have addressed both topics in more detail in separate posts below.

Criminal liability for violations of the Humane Care for Animals Act

[This is Part 1 of series about the Illinois Humane Care of Animals Act.  The introductory post can be found HERE.]

The Humane Care for Animals Act contains varying degrees of criminal liability.  First, the Act outlines duties that all owners owe to their animals.  Each owner shall provide each of his animals sufficient food and water, adequate shelter and protection from the weather, and veterinary care when needed to prevent suffering.  Failure to provide these basic necessities can result in a Class B misdemeanor for the first offense and a Class 4 felony for each subsequent offense.

The Act also prohibits the cruel treatment of animals.  The Act provides that no owner shall beat, cruelly treat, torment, starve, overwork, or otherwise abuse any animal.  Nor may any owner abandon any animal where it may suffer injury, hunger, or exposure.  Violation of this Section is a Class A misdemeanor for the first offense and a Class 4 felony for each subsequent offense.

There is also a section concerning aggravated cruelty to animals.  Aggravated cruelty is an intentional act that causes serious injury or death to an animal.  The first offense of aggravated cruelty is a Class 4 felony and subsequent offenses are Class 3 felonies.

The Act also provides for the seizure of animals if there are allegations of improper care, cruel treatment, or aggravated cruelty.  There is a procedure to obtain a hearing in front of a judge to determine whether the allegations are true. As I explained in the introductory post, what constitutes proper care and adequate shelter for animals is the subject of much debate. There is also a fine line between the discipline and training of an animal and cruelty.  The first step in the this process is usually the seizure of animals.  The next step will usually be misdemeanor or felony charges.  If you have any questions about potential criminal liability under the Illinois Humane Care of Animals Act, please send me a confidential email HERE.

Civil liability for violations of the Humane Care for Animals Act

[This is Part 2 of series about the Illinois Humane Care of Animals Act.  The introductory post can be found HERE.]

The Illinois Humane Care for Animals Act also provides civil remedies to the owners of animals who have been subjected to harm.  Any person who has a right of ownership in an animal that is subjected to aggravated cruelty or torture, as those terms are defined in the Act, may bring a civil action for damages.  

Damages may include, but are not limited to, the monetary value of the animal, veterinary expenses, any other expenses incurred by the owner in rectifying the effects of the cruelty, pain or suffering of the animal, and emotional distress suffered by the owner.  In addition to those actual damages, the court can award punitive damages of not less than $500 and not more than $25,000 for each instance of abuse.  Also, the court can award attorney's fees to the animal's owner.

If your animal has been intentionally harmed by another person, or if you have any other questions concerning the Illinois Humane Care of Animals Act, please send me a confidential email HERE.

Wednesday, May 1, 2013

The City of Naperville is Hiring

The City of Naperville just posted two new job openings to their website.  One is for a Senior Assistant City Attorney.  This is a full-time position.  They are also looking for a part-time, Assistant City Prosecutor to work approximately 20 hours per week.

Here is a link to the job postings: