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Dangerous Property Archives

Some 80 Percent of Public Pools Test Positive for Health or Safety Violation

A surprising one out of every eight public pools, hot tubs and water playgrounds test positive for at least one health or safety violation, according to data released by "Mortality and Morbidity Weekly Report." 

Winter's Coming -- What Rights do you have to save that street parking spot you shoveled out?

The Law of "Dibs" by Robert A. Clifford
Reprint from the American Bar Association Litigation Journal, Fall 2015
You're patiently waiting in your car for someone to pull out of a parking spot only to have someone come out of nowhere and zip into it without any acknowledgment that you had dibs on it. George Costanza on Seinfeld would have none of that when he stood for weeks in an empty parking spot because the space was "just too good to give up." How many can relate to that - although perhaps not to that extreme?
Sometimes it can be slightly aggravating; other times, the law of "dibs" has escalated into near fist fights, or as ABC-7 in Chicago called it in February, 2015, "dibs disputes." People, especially in big, crowded towns, protect their parking spots. That's most evident during the winter when people who live on side streets shovel out a parking spot and then claim it to be theirs for weeks or perhaps even the season. They use lawn chairs, mattresses, cones, hand-made signs, hampers and other paraphernalia from their homes to call dibs.
"Dibs" is not really legal; however, the city of Chicago, for example, often looks the other way following blizzards that are all too common. In fact, Mayor Rahm Emanuel has been quoted as saying that following a blizzard, he supports the concept of "dibs." Actually, it was first endorsed by Mayor Richard M. Daley in 2001 when he was quoted in the Chicago Sun-Times as saying, "'I tell people, if someone spends all that time digging their car out, do not drive in that spot. This is Chicago. Fair warning."
Boston learned a similar lesson from the record blizzards of the winter of 2014-15 when its mayor, Marty Walsh, told the press that if you shovel out a parking spot, it is yours to keep for a while - that generally means until the city plows that street or the snow melts. At the very least, first-come-first-served means a few days.
Fights and vandalism are common in retaliation for those who dishonor the law of dibs. Cracked windshields, broken mirrors and keyed cars are just some of the hazards of violating someone's hard work on a public street. And when you place your possessions to hold the spot, the city of Chicago tacitly acknowledges the proposition of dibs because garbage crews don't haul off your place-holding stuff until spring.
Chicago Tribune columnist John Kass tried to claim dibs on the exalted title "Judge Dibs" only to have columnist Eric Zorn of the same newspaper earlier this year call himself "Chief Justice Dibs". Zorn even set rules for Chicagoans, including a 48-hour rule of dibs expiration after the last snowflake has fallen, no matter how hard you worked to clear the spot. "Snowstorms bring out the best in us - snow piles, the worst," Zorn wrote in his February 2, 2015 column. He even went on to explain that the term "dibs" itself has been used for more than 70 years to mean staking a claim to objects, privileges or opportunities that one hasn't earned.
Richard A. Epstein, a professor at NYU Law School and the University of Chicago, examined this issue in depth more than 10 years ago. See Richard A. Epstein, The Allocation of the Commons: Parking on Public Roads, 31 J. Legal Studies 515 (June 2002). He also looked at the issue of when one is in pursuit of a parking spot on a city's crowded streets. According to Epstein, curb rights are really a matter of a "bottoms-up" rule of first possession. He explains how these property rights really are formed by what is for the public good by analogizing to those in hot pursuit during a fox hunt:
One advantage of the hot-pursuit rule is that it protects the labor of the initial chaser by allowing him a clear shot to catch the fleeing animal: the alternative rule encourages freeloading, as 'saucy intruders' can carry on the chase after the initial hunter and his prey are both exhausted."
Id. at 524. Good point.
That still doesn't help when you are in a crowded parking lot or on a high-volume street and the driver in car number one has an innate instinct to yield to others but the late-comer driver number two lives with an instinct to fight for what he thinks is his. Epstein concludes, "I have little doubt that if this matter were ever brought to litigation, the first driver to arrive would win against the prior surrogate. But the stakes are usually so low that this never happens." Id. at 525.
So really, who has the rights to a parking spot or how do you gain possession of something that you don't really own? That's exactly why crowded city streets continue to be like the forests of fox hunting - we may never know the answer for sure because no one has the time or patience to litigate such an indiscretion. And the courts don't have time for it either.
-Robert A. Clifford, former Chair of the ABA Section of Litigation. 

More than One in Three Nursing Homes Receive Relatively Low Overall Ratings on Nursing Home Care

More than one third of the nation's 15,500 nursing homes received relatively low ratings of one or two stars under the federal government's recently revamped five-star Quality Rating System, according to a new analysis by the Kaiser Family Foundation. This number accounts for some 39 percent of all nursing home residents. The rating system is overseen by the Centers for Medicare and Medicaid Services and is based on deficiencies that may be reported during health inspections. The measures relate to staffing and quality of care. The purpose of the rating system is to give consumers more information when making nursing home decisions. The issues surrounding nursing homes such as inadequate staffing, fire safety hazards and substandard care was the reason for instituting a rating system and the Kaiser study, as more and more people in American rely upon nursing homes as a viable alternative for the growing elderly population. To read more about the study released by the Kaiser Family Foundation or to see the study itself, please go to: http://kff.org/medicare/press-release/more-than-1-in-3-nursing-homes-received-relatively-low-overall-ratings-on-nursing-home-compare/

Do Workplace Laws Cover Actions of Independent Contractors?

  Question: Do workplace laws cover independent contractors? Answer: Workplace law deals with the regulation of the relationship between employers and employees. Independent contractors are not considered to be employees. Generally, if an employer controls, directs and supervises the individual in the performance of his or her work, that individual is an employee. But, if the employer merely specifies the result to be achieved, and the individual uses personal judgment in the means used to achieve that result, then the individual is an independent contractor. This means that under U.S. law, an employer cannot classify you as an independent contractor, then dictate when, where and how you work. Thanks to the Illinois State Bar Association (ISBA) for this information.

Can Nursing Home Resident Place Audio/Video Recording Devices in Room?

Question: Is it legal for the family of a nursing home resident to place video or audio monitoring devices in their room? Answer: A bill passed the Illinois House in April 2015 that would allow nursing home residents and their families to place video or audio monitoring devices in their rooms to help ensure their safety and quality care. If the bill passes the Illinois Senate and is signed by the Governor, it will become law.   For more information about Illinois law, visit www.illinoislawyerfinder.com. If you have a legal question, send it to illinoislawcolumn@isba.org.

Another Tragic Grain Bin Incident - Four Men Injured in Northwest Indiana

Four men reportedly were injured when a grain bin in northwest Indiana exploded. Media reports indicate that a powerful blast in a grain elevator in LaCrosse, Indiana, injured four men Thursday (April 16, 2015) about 9 a.m. Residents as far as 15 miles away reported they could hear the blast in the 175-foot-tall bin and some even felt their houses shake like an earthquake, according to media reports. The blast blew out large holes on both sides of the feed mill, according to eyewitnesses. Tragically, four men who work for Co-Alliance LaCrosse Feed Mill, just east of U.S. 421, were taken to hospitals with injuries. An investigation into the cause of the blast is being conducted by the Indiana State Fire Marshall's Office, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives and the Occupational Safety and Health Administration (OSHA), according to the LaPorte County News. Authorities also told reporter Stan Maddux that the area has been sealed off due to the risk of a collapse of the structure that may be beyond repair. Clifford Law Offices has successfully worked on several grain bin cases, the latest being a record verdict obtained by partners Kevin P. Durkin and Sean P. Driscoll who obtained a $16 million verdict again Con Agra Foods on behalf of two families who lost their sons when they became entrapped in a grain bin. The story received coverage across the country, including the Chicago Tribune: http://articles.chicagotribune.com/2014-02-07/news/chi-grain-bin-death-victims-families-awarded-16-million-20140207_1_wyatt-whitebread-will-piper-haasbach-llc The verdict was the largest ever in Carroll County, Illinois, and each family received a record amount in the state outside of Cook County. The previous record in that county was a $220,000 verdict in 1989 and a $1.1 million settlement in 2006, according to the Jury Verdict Reporter. Durkin told the press that about 1,600 grain bin entrapments are reported every year in this country with sometimes several of them tragically resulting in death. Clifford Law Offices takes great pride in representing people from across the state, the Midwest and the country, painstakingly researching every detail and attaining the best experts in order to go to trial prepared and knowledgeable about every aspect of the case. That is clear what happened in the case involving the two families in Carroll County so that justice was served. Following the incident involving the cases that Durkin and Driscoll handled, the OSHA issued warning letters to the grain industry on Aug. 4, 2010, to address and emphasize the dangers of entering storage bins and safety procedures that must be in place. Among those safety measures is that employers must provide workers who enter the bin with a type of lifeline to prevent them from sinking into the bins.

Partner Colin Dunn Pens Monthly Article on Premises Liability and the Open-and-Obvious-Danger Rule

In his October 6, 2014 article for the Chicago Daily Law Bulletin, Clifford Law Offices Partner Colin H. Dunn wrote about a common issue raised in premises liability claims in Illinois: the open-and-obvious-danger rule. A landowner owes an invitee a duty to protect him or her from unreasonably dangerous conditions, unless the danger is open and obvious. However, Illinois cases have recognized exclusions to the open-and-obvious-danger rule, including the distraction and deliberate-encounter exceptions, both of which identify certain circumstances for which a possessor of land should anticipate injury from a dangerous condition although the condition may be open and obvious. Specifically, the "distraction" exception applies when a property owner should anticipate an invitee's attention being distracted from the open and obvious danger thus increasing the reasonable foreseeability/probability of injury. With this framework in mind, Dunn analyzes a recent Illinois Supreme Court decision in Bruns v. City of Centralia, 2014 IL 116998, where the Court applied these rules to a situation in which a woman tripped over a defect in a sidewalk as she was walking. The plaintiff claimed she was "distracted" while staring at the front door of a medical clinic. While sidewalk defects have been held as open and obvious dangers, the court's analysis did not end here. To read Colin Dunn's entire article on how the Illinois Supreme Court applied the "distraction" exception to the open-and-obvious-danger rule in Bruns, click here.

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