Articles

LEGAL TRENDS, October 2003

Legal Trends Highlights Recent Cases In Employment Law.

Legal Trends Spotlights Record Burn Settlement and New Development in Employment Law.

In this issue of Legal Trends, we focus in on a record breaking settlement for a burn case in Cook County and analyze a recent decision by the Illinois Appellate Court clarifying what properly constitutes a termination for cause.

Personal Injury Law

Hollander Law Offices Settles Burn Case for a record $3.5 million.

The Hollander Law Offices was scheduled to try a catastrophic burn case on October 23, 2003. On the eve of trial, the parties reached a $3.5 million settlement. According to the Cook County Jury Verdict Reporter, this was the largest settlement for a burn case for an injured party in the age group of 50 or older.

Luis Ibarra, Sr., age 56 at the time, was employed as an ironworker for Midwest Fence Corporation. Midwest Fence installs industrial and commercial fences in the Chicago Metropolitan Area. In November, 2001, Pactiv Corporation, a manufacturer of specialty packaging products, contracted with Midwest Fence to have a security system installed at its Wheeling, Illinois facility. Midwest Fence's job was to install an overhead sliding gate to control truck traffic which entered and exited Pactiv's entrance off of Wheeling Road. Prior to beginning work, Pactiv's Safety Director reviewed a field sketch of the job but did not foresee any hazards.

On April 20, 2001, Midwest Fence sent a three man crew to the Pactiv jobsite - Luis Ibarra, Sr., his son, Luis Ibarra, Jr., who was the foreman, and another ironworker. The crew arrived at the jobsite at approximately 7:30 in the morning and began working. Luis Ibarra, Sr.'s job was to manually guide the security gate into place so that it snapped into a top cross beam, while his son operated a crane which had suspended the gate. At approximately 11:15, the Ibarras realized that the security gate was in the wrong position, and needed to be completely rotated.

At that time, Luis Ibarra, Jr. raised the gate approximately one foot while his father began to swivel the fence around. The sixteen foot gatepost then contacted an overhead power line on Pactiv's land which carried 34,000 volts of electricity. The electrical current surged through Mr. Ibarra, Sr.'s body and he sustained a severe electrical injury.

Mr. Ibarra was airlifted to Loyola University Hospital where he was diagnosed with second and third degree burns which covered 60% of his body. Mr. Ibarra was hospitalized at Loyola where he underwent multiple surgical procedures including extensive skin grafts. Upon discharge, Mr. Ibarra spent approximately five weeks at the Rehabilitation Institute of Chicago. Upon his return home, Mr. Ibarra was plagued by nightmares that his house was on fire. Mr. Ibarra now needs to use a cane to walk and still complains of severe pain in his legs. According to Mr. Ibarra's vocational rehabilitation expert, Mr. Ibarra will never be able to return to work again.

In his lawsuit, Mr. Ibarra contended that Pactiv failed to contact Commonwealth Edison Company to de-energize the power lines before Midwest Fence came out to the jobsite. Mr. Ibarra also contended that Pactiv increased the hazard by failing to re-route truck traffic from the Wheeling Road entrance where the men were working, to its alternative entrance on Hintz Road.

Pactiv denied that it was liable for Mr. Ibarra's injuries. The company argued that Mr. Ibarra, as an ironworker, should have seen the powerline as an obvious hazard. Thus, Pactiv argued, Mr. Ibarra's contributory negligence caused the accident. Pactiv also filed a third party action against Midwest Fence contending that if Pactiv was liable, Midwest should indemnify it. Interestingly, Midwest Fence's owners testified in pre-trial depositions that while they properly trained their workers, Mr. Ibarra Sr. and Jr. were negligent in that they placed the crane too close to the overhead powerlines.

The Ibarras retained a safety expert who testified that OSHA regulations prohibit untrained electrical workers from working within ten feet of an energized power source, and that Pactiv, as the owner, failed to insure that there was safe clearance. The Ibarras also retained the services of a human factors expert who explained that it was nearly impossible for a laborer to accurately judge the height of a power line, and that due to other tasks at hand, workers often temporarily forget about the presence of the powerlines.

After a lengthy pre-trial mediation conference, where Gene Hollander used a computer animation of the incident, the parties settled. "Mr. Ibarra is lucky to be alive," said Gene Hollander. "He is grateful that he will have enough money to pay for his future medical expenses and lost income."

Employment Law

Illinois Appellate Court Defines Termination for Cause.

Ralph Eimerman entered into an employment contract with the Brucker Company, Inc. Brucker agreed to employ Eimerman as the President of its company, which sold and distributed heating, ventilation, and air conditioning equipment. In its contract, Brucker agreed to guarantee Eimerman one year's salary. After nine months of employment, Brucker was dissatisfied with Eimerman's performance and terminated his employment. Brucker refused to honor its contract and refused to pay Eimerman the balance of his salary.

Eimerman filed suit in the Circuit Cook County and alleged breach of contract. The case proceeded to trial, and Brucker contended that it properly terminated Eimerman due to alleged performance deficiencies. The matter was heard by the Honorable Peter Flynn. After hearing all of the evidence, the court found in Eimerman's favor.

Brucker appealed, and argued that it had the right to terminate Eimerman at-will, and that even if it did not have that right, it still had authority to terminate Eimerman for cause. The reviewing court disagreed.

Specifically, Brucker argued that its own employee handbook provided that all of its employees were employed at-will, and that the handbook controlled what the employment relationship would be. The appellate court noted the inconsistency between the two documents, but found that since Eimerman negotiated with his employer for a guaranteed level of income, Judge Flynn did not err in finding an enforceable employment contract.

In reviewing Judge Flynn's findings, the appellate court found that there was remarkably little law discussing what a proper termination for cause was. In upholding the verdict for Eimerman, the appellate court held the contract contained no specifications as to Eimerman's performance, and thus, his employer's mere dissatisfaction with his performance was insufficient to justify a termination for cause.

According to Betsey Madden, associate attorney of The Law Offices of Eugene K. Hollander, who tried the case and also handled the appeal, "this was a welcome opportunity for our appellate court to clarify existing law in this area. Employees can feel more secure that unless their employment contracts require specific levels of performance, they ordinarily will not be subject to a termination for cause."

Undoubtedly, in the future, employers who include vague termination for cause provisions in their employment contracts will have a difficult time defending a subsequent lawsuit by an aggrieved employee.

Employment Evidence Reviewed

In March, 2003, James Publishing released a book authored by Eugene Hollander, Employment Evidence. The book was recently reviewed by the Honorable John M. Facciola, a federal district court judge sitting in Washington, D.C. Judge Facciola observed that "Mr. Hollander has provided us with an intensely practical and useful beginning guide to the demands of employment litigation." For more information, visit http://jamespublishing.com/books/ee.htm.

The Law Offices of Eugene K. Hollander
LEGAL TRENDS, October, 2003

About the author:

Eugene Hollander is a trial attorney with over ten years experience. Mr. Hollander has tried numerous cases in the state and federal courts, and currently heads his own law office in Chicago. The Law Offices of Eugene K. Hollander is a full service law firm, concentrating its practice in the prosecution and defense of employment discrimination claims, personal injury and medical malpractice suits, and also engages in various types of commercial litigation. For more information, contact us directly at:

The Law Offices of Eugene K. Hollander
33 N. Dearborn, Suite 2300
Chicago, IL 60602
(312)-425-9100
E-mail: EHollander@ekhlaw.com

Copyright © 2003 The Law Offices of Eugene K. Hollander. This publication may be considered advertising material under the Illinois Code of Professional Responsibility and is not intended to create any attorney-client relationship. The reader should not rely upon any statement or opinion as legal advice, but rather, should consider it as generally informative.