Articles

LEGAL TRENDS, April 2004

Legal Trends Highlights Record Snowmobile Verdict and New Employment Law in Illinois.

In this issue of Legal Trends, we focus in on a record breaking jury verdict for a snowmobile case in Wisconsin and discuss a recently enacted law to protect whistleblowers in Illinois.

Personal Injury Law

Hollander Law Offices Nets Record Jury Verdict in Wisconsin.

On January 13, 2004, The Hollander Law Offices achieved a record jury verdict for reported snowmobile cases in the state of Wisconsin. On that date the jury returned a net verdict for just over $570,000 in favor of David Stamm, Jr.

On the evening of February 18, 2000, David Stamm, Jr., age 24 at the time, went snowmobiling with three friends, Randy Spahos, Jeff Prochnow, and Jeff's brother, Brian. The group decided to go snowmobiling near David's father's lake cottage in East Troy, Wisconsin. The area was well known to David, but was unfamiliar territory for the defendant Jeff Prochnow.

At about 9:00 P.M., the group stopped for dinner. Shortly afterward, they continued snowmobiling northbound on Trail No. 9 in Walworth County. Just before midnight, the group stopped at an intersection along the trail, and debated whether to return to the cottage or continue snowmobiling. They elected to continue, but agreed on a turnaround point further north up the trail, at the base of a large hill.

Stamm led the group on the trail and through a densely wooded area. Spahos was immediately behind Stamm, followed by Jeff and his brother. When Stamm and Spahos emerged from the woods, they followed the trail along the west edge of the hill and arrived at the meeting spot. In the interim, the Prochnows got separated from the other two riders. When Jeff Prochnow exited the forest, he elected to leave the marked trail, and proceed on an unmarked path.

At that point, Stamm proceeded slowly up the north side of the hill to look for the remainder of his group. When Stamm was about 15 feet from the top, Jeff crested the hill from the opposite side, becoming airborne. The evidence at trial showed that Jeff was travelling between 30 to 35 miles per hour. Jeff saw Stamm's headlight, but could not stop. He landed on top of Stamm's snowmobile, causing David to be ejected from his sled.

Stamm's friends found him lying face down in the snow. When they turned him over, they thought he was dead. Stamm had been foaming at the mouth and could not communicate. The friends loaded Stamm on a snowmobile and frantically sought help. A Walworth County Sheriff saw them and radioed for assistance. Stamm was airlifted to a hospital. Dr. John Weigelt, a trauma surgeon, assumed primary care of Stamm. Dr. Weigelt doubted David would survive due to the multiple rib and vertebrae fractures that he sustained, in addition to internal injuries to his liver, lung and spleen. David was admitted to intensive care and had a lengthy hospital stay.

David was discharged to the care of his mother, who initially provided round the clock care to her son. After a several month recovery at home, David returned to work as a financial analyst and recently married. While David outwardly appears normal, he is plagued with permanent shoulder and hand injuries.

Suit was originally initiated against Jeff Prochnow in Dane County, Wisconsin. Upon a defense motion to transfer venue, however, the court transferred the case to Walworth County, a far more conservative jurisdiction.

At trial, Jeff Prochnow testified that he believed that he was on the marked trail all along, and never saw the reflective trail marker sign which was posted on a tree by the hill. Stamm's safety and engineering expert, however, testified that the trail marker was plainly visible as one exited the woods, and that Prochnow violated basic snowmobile operating procedures by failing to slow down as he reached the crest of the hill. The defense had an expert of their own who contended that the trail was poorly marked, but conceded that Prochnow was travelling too fast for conditions.

The jury found in favor of Stamm, and awarded him a gross total of just over $814,000, but found Stamm 30% comparatively at fault. Post-trial motions were filed by both parties and were denied. Prochnow's insurance carrier paid the judgment.

Employment Law

Illinois Expands Liability For Whistleblowers.

Effective January 1, 2004, a new Illinois law expanded liability for whistleblowers. The new law prohibits an employer from enacting a policy or regulation which would prohibit an employee from disclosing information to a government or law enforcement agency if the employee has reasonable cause to believe that the employer has violated a federal or state law, rule or regulation. The new statute also prohibits the employer from retaliating against the employee who makes such a disclosure. The last new substantive provision bars the employer from requiring the employee to participate in activities which violate state or federal law.

In addition to providing criminal penalties for a violation of the law, the statute provides for civil remedies. A successful plaintiff may recover backpay, actual damages, attorney's fees and costs, and may also seek reinstatement.

Previously, aggrieved parties had to rely upon the Illinois common law claim of retaliatory discharge to pursue such claims. Courts, however, were reluctant to expand the scope of that law, and held that it only applied in limited situations, such as when an employee was fired after filing a workers' compensation case. The new law is different from retaliatory discharge claims in that the employee can recover his attorney's fees and seek his job back; in a retaliatory discharge case, however, one cannot get attorney's fees but can obtain punitive damages.

The new law applies to employers with one or more employees, but does not apply to governmental entities. We expect that the new law will allow more aggrieved parties greater access to the courts.

EEOC Charges Drop First Time In Five Years

For the first time in five years, the number of charges filed with the EEOC dropped. In fiscal year 2003, 81,293 charges were filed, compared to 84,442 filed with the federal agency in 2002. Race claims made up the biggest percentage of those charges filed, representing 35.1% of the total. Gender claims made up the next biggest sector, which accounted for 30% of all charges filed. The most charges filed within the last ten years was 1994 when 91,189 charges were filed.

Less than 10% of those charges resulted in settlements, while almost two thirds, or 63.1%, resulted in "no cause finding," meaning that the EEOC could not conclude that the employer violated a federal employment law. In such a situation, however, the EEOC sends the employee a "right to sue letter," allowing the employee to pursue her claim in federal court.

The EEOC may file suit directly on behalf of a charging party or may file suit concurrently with a private attorney. The EEOC, however, rarely takes such action. In fiscal year 2003, the EEOC filed only 393 such suits, or less than one half of one percent of all charges filed.
Employment Evidence Supplement Available

In April 2004, James Publishing released the 2004 supplement to Employment Evidence, authored by Eugene Hollander. The supplement provides the latest updates in case law for this wide body of federal employment law and provides additional insight and tips for practitioners. For more information, visit http://jamespublishing.com/books/ee.htm.

About the author

Eugene Hollander is a trial attorney and currently heads his own law office in Chicago. Mr. Hollander has tried numerous cases in the state and federal courts. The Law Offices of Eugene K. Hollander is a full service law firm, concentrating its practice in employment discrimination claims, personal injury and medical malpractice suits, and various types of commercial litigation. For more information, visit our web site at: http://www.ekhlaw.com/, or 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@lawinfo.com

Copyright © 2004 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.