Occupations and Persons Not Covered By the Illinois Workers’ Compensation Act

The Illinois Workers’ Compensation Act was enacted in order to create a comprehensive system for providing medical assistance and compensation to persons injured on the job. As such, the term “employee” as used in the Act includes the vast majority of Illinois workers. There are, however, some notable exceptions. 

Independent Contractors

Although independents contractors are not entitled to benefits, determining who is an employee and who is a contractor can, as one court has said, be a “vexing problem”, particularly since many jobs include attributes of each. In general, under Illinois law an independent contractor is a person who is hired to provide a particular service but is not directly managed by the employer/client. Rather than attempting to apply this rather vague definition to specific cases, Illinois courts have developed a list of factors to be considered on a case-by-case basis. Among these are:

• The degree of control exercised by the employer over the work.
• The relationship of the work to the business of the employer
• Method of compensation
• Who provides necessary tools and supplies
• Length of the relationship 

Certain Corporate Officers

Some senior officers of Illinois and foreign corporations may, by notifying the company’s insurance carrier, voluntarily withdraw from the coverage of the Act.

Real Estate Agents

A real estate broker, broker-salesperson, or salesperson, if compensated solely on a commission basis, is not considered an “employee” under the Act.

Volunteers 

Volunteers generally are not covered by the Act. This includes employees who volunteer to perform some task that is not part of his or her duties and is unrelated to the interests of the employer. For example, the court denied benefits under the Act to a student teacher injured while serving as a “volunteer” at a local school, even though the activity was required for her to graduate. An interesting question apparently not yet addressed in Illinois is whether 'employee" includes an intern who is treated as one in virtually all respects other than the fact that he or she is uncompensated. 

The eligibility rules under Workers’ Compensation Act is complex. If you have been injured in the course of your employment in Chicago or elsewhere in Illinois and have been denied benefits, consulting a Chicago workers compensation lawyer can help you determine if you have grounds to appeal.

Injuries to Apartment Renters in Illinois – When Is The Landlord Responsible?

In a majority of the U.S. Postal Service ZIP Codes that encompass the greater Chicago area, fifty percent or more of the available housing units are tenant-occupied. Injuries to tenants occur for the same reasons as they do in owner-occupied dwellings. However, when a tenant is injured, he or she may have a claim for damages against the landlord.

Under Illinois common law, landlords generally are protected from liability for injuries occurring in the apartment, whether the victim is the tenant or a member of his or her family or a visitor. A landlord does, of course, owe a duty to its tenants to maintain in a reasonably safe condition areas not leased to the tenant, including common hallways, courtyards and sidewalks.

There are also several exceptions to this general rule of immunity. When one of these applies, the landlord may be held liable for injuries. These exceptions include cases in which:

• The injury results from a hidden (or “latent”) defect not readily discoverable by the tenant that existed at the time of leasing, provided the landlord knew or reasonably should have known of its existence.
• The landlord was under an independent legal duty repair the premises and failed to do so. This duty may arise as a matter of contract law under the terms of the lease or independently under federal or state statutes or a local building code.
• The landlord agrees make repairs and either fails to do so or completes them in a substandard manner.
• The landlord retains control over the apartment. Whether this has occurred is a question of fact under the circumstances. Thus, for example, the court in a tenant lawsuit involving injuries inflicted by another tenant’s dog found that the landlord’s threats to evict the dog owner in order to coerce removal of the dog did not mean he had retaken control of the apartment.

Effect of the Implied Warranty of Habitability

Under Illinois law, a residential landlord gives his tenants an implied warranty that the rental space will be generally suitable for human habitation. While a breach of this warranty (for example, failure to provide adequate heat) may allow the tenant to withhold payment of rent, in the absence of one of the exceptions above, it usually will not support a claim for personal injury or property damage.

When the Government is to Blame – the Basics of Sovereign Tort Immunity in Illinois

A motorist is injured in a collision at a traffic light that has been out of order for months, despite repeated citizen complaints. A jury member slips and falls on an improperly repaired courthouse step. Many people are surprised to learn that these individuals cannot simply sue the state, county or local government as they would any private individual.

The historical so-called “sovereign immunity” of the state, federal and local governments from liability for unintentional as well as intentional torts is derived from the English common law – nobody was allowed to sue the king. It survived despite the demise of absolute monarchy out of concerns that claims by injured persons would bankrupt the public coffers.

The 1970 Illinois state constitution entirely abolished the doctrine of sovereign immunity. However, the General Assembly retained authority to create exceptions, and it has done so principally through two major laws:

• The Court of Claims Act, which created a special court with exclusive jurisdiction over tort actions against the state, its agencies and its employees engaged in the performance of their official duties. In contrast to a suit against a private party, an injured party must serve notice of his or her claim on the Illinois Attorney General and the Clerk of the Court of Claims within one year.
• Compliance with this requirement is crucial: failure to provide the proper notice in a timely fashion bars the plaintiff from ever filing suit. Most significantly, the Act generally limits the amount of damages to $100,000. False imprisonment awards are even more limited, with the maximum being $35,000. Attorneys’ fees of claimants generally are also capped at 20% of the amount recovered.     
• The Local Governmental and Governmental Employees Tort Immunity Act. In general, this Act retains absolute immunity for acts that relate to the exercise of discretionary authority or policy decisions, as opposed to the performance of “ministerial” acts. Where the line between “discretionary” and “ministerial” falls has been the subject of much litigation.

The rules governing suits against the State of Illinois or a local or county or their respective agencies or employees are complex. If you believe you’ve been injured by the act or neglect of a government official, an experienced Illinois personal injury lawyer can advise you concerning your rights and obligations.

Basic Elements of an Illinois Personal Injury Claim

Under Illinois law, a person who has suffered personal injuries due to another’s negligence may be able to recover damages. In addition to the injury itself, however, the plaintiff generally must prove several additional things.

Duty of Care

First, plaintiff must show that the defendant owed him a duty of care. In Illinois, the basic standard of care is that of a hypothetical “ordinarily careful person" or "reasonably prudent" person of average intelligence, knowledge, judgment and skill. If the court finds that an “ordinarily careful” or “reasonably prudent” person would have acted (or refrained from acting) in order to prevent a foreseeable harm to the plaintiff, the defendant had a duty to act in a similar manner.

Breach of Duty
Once the plaintiff establishes the element of duty of care, he must prove that the defendant failed to carry out that duty. The most common standard is that of the “reasonable man” (or the gender-neutral “reasonable person”. The Illinois courts have explained that a breach of duty occurs when there is a failure to do something which a person guided by ordinary considerations and knowledge would be expected to do, or refrain from doing. Factors to be considered include the foreseeability of injury, the seriousness of the possible harm and the financial or practical burden the defendant would have incurred by taking precautions.

Causation
The third element of a negligence claim is a direct (or “proximate”) “cause and effect” relationship between the defendant’s negligence and the plaintiff’s injury. Illinois courts use two tests. The first is the so-called “but for” test, under which the defendant's negligent conduct is the cause in fact of the plaintiff's injury if it injury would not have occurred “but for” the defendant's negligence.

When personal injuries result from a chain of independent events the “but for” case may be too strict, and may allow a negligent person to escape liability because it cannot be said that the injury would not have occurred without his misconduct. In such cases, some Illinois courts have instead adopted a “substantial factor” test. Under this test, the defendant's conduct is considered a cause of the plaintiff's injury if it was a substantial factor (or, in some cases, a "material element”) in causing the injury.

The skilled Chicago personal injury attorneys at Nilson, Stookal, Gleason & Caputo, Ltd. have experience handling all types of personal injury matters in Illinois. Our Attorneys are Richard P. Nilson, Marc B. Stookal, Steven M. Gleason.