News Items

Behind the Wheel of A Large Automobile

The Illinois Department of Transportation’s Division of Traffic Safety has reported that automobile accidents are the leading cause of death among young people between the ages of 15 and 20. Nearly one out of every five licensed 16-year-olds is in a vehicle crash, and, per mile driven, their fatality rate is roughly three to five times that of drivers between 30 and 50 years of age. The Division of Traffic Safety has attributed the high teen crash rate to the lack of driving experience, as well as a greater tendency to take risks. While Illinois has been reluctant to raise the minimum licensing age for new drivers, the state’s Graduated Licensing Program addresses common teen-driving pitfalls to reduce the opportunity for injury.

To address teens’ lack of driving experience, the three-tiered Graduated Licensing Program mandates that each new driver practice under a learner’s permit for a minimum of nine months, with at least 50 hours of supervised driving. The teen must also be enrolled in a state-approved driver education course. Teens are restricted from driving between 10 p.m. and 6 a.m. on weekdays, as well as between 11 p.m. and 6 a.m. on weekends. Local curfews may further limit teens’ nighttime driving.  Cell phone use is prohibited except for in cases of emergency, but then only to contact law enforcement, health care providers or emergency services. Both cell phone and night driving restrictions continue until the driver reaches 21 years of age. Any moving violation results in a nine-month waiting period before applying for a driver’s license.

The initial licensing phase begins when the new driver successfully completes the permit stage. This phase lasts for the first year of licensing, or until the driver turns 18 – whichever occurs first. To reduce distractions, a new driver may have no more than one passenger under 20 years old (other than immediate family) and may be ticketed for violating this law. Furthermore, a new driver must maintain a conviction-free driving record to six months prior to turning 18 before moving on to the full licensing stage. Thus, a conviction during the initial licensing stage may extend restrictions beyond age 18.

Once the initial licensing phase is completed, the final stage of the Graduated Licensing Program commences – the full licensing phase. If the driver receives two moving violation convictions within a 24-month period, he or she is subject to a minimum one-month driver’s license suspension. Additionally, another suspension will result for each subsequent moving violation. Once the new driver reaches 21 years of age, he or she should be well prepared to tackle the challenges of the road safely and responsibly.

    ----------------------------------------------    

Enjoy Motorcycle Riding Season

Every year, the majority of traffic fatalities involving motorcycles occurs between May and September, a time of year which has been dubbed “riding season” due to the influx of motorcyclists on the roads. In anticipation of this year’s riding season, the Illinois Department of Transportation’s Division of Safety aims to protect Illinois motorists with the implementation of the “Gear Up” campaign, a motorcycle safety initiative.  

“Motorcyclists are among the most vulnerable of highway users, and we want to work together to promote motorcycle safety and help protect all of the motoring public,” said Illinois Transportation Secretary Gary Hannig in an IDOT press release announcing the launch of the campaign. Motorcycles represent slightly less than 3 percent of total vehicle registrations. However, motorcycle fatalities represent almost 14 percent of all vehicle fatalities statewide. While the actual causes of these crashes are often difficult to determine, it has been found that there are several problem areas over which motorcycle riders themselves have a degree of control.  

Through the “Gear Up” campaign, IDOT is encouraging motorcyclists to take control of their own safety, offering these suggestions for staying safe during riding season:

• Dress with the proper riding gear.  Riders should employ the use of a quality DOT-approved helmet to protect from devastating head injuries.  Goggles or glasses constructed of shatter-resistant materials will help protect eyes.  Jackets, long pants and gloves constructed of sturdy material will help protect the rider’s body in case of a fall.  Strong over-the-ankle footwear will help protect ankles and feet.  The use of high-visibility clothing for riders is an effective tool to enhance safety by alerting other drivers of your presence.
• Utilize a reputable preventive maintenance program for motorcycle equipment.  Before the first ride of the season, motorcycles should be thoroughly inspected and serviced by a professional mechanic.
• Make sure all motorcyclists are properly licensed.  About 20 percent of motorcyclists killed in crashes are not properly licensed.
• Obey traffic laws.  Motorcyclists who obey traffic laws significantly improve their chances for a safe ride.
• DON’T DRINK AND RIDE.  The use of alcohol plays a negative role in about 40 percent of motorcycle fatalities.
• Never ride beyond your ability.  Riding skills improve with experience and training.  Riders who are patient and gain these skills before trying advanced maneuvers increase their chances for a safe ride.

In addition to these safety guidelines, IDOT is also offering free motorcycle training for all skill levels during the 2011 training season. IDOT encourages all riders to take advantage of these opportunities to improve riding skills and to learn about proven strategies for managing the inevitable risks of motorcycling. To learn about these free training courses, visit www.startseeingmotorcycles.org.

*******************

Crash Test Dummies

You may have noticed when shopping for a new vehicle that each one has a safety rating and
information available about government safety tests. Most safety ratings are the direct result of crash
tests using anthropomorphic test devices, better known as crash test dummies. These dummies have
been developed and improved over the last 60 years to respond like a human body during a crash.

In 1949, the U.S. Air Force funded the development of the first test dummy for use while testing their
aircraft ejection seats. Previous testing had been done using human volunteers until testing became too
dangerous. The automotive industry, which was using results from cadaver studies at the time, began
developing and using their own crash test dummies. The new dummies were initially used to develop lap
and shoulder seat restraints. Over the years, crash dummies have changed in form and size to include
male and female versions in adult and child sizes. The sensors inside crash dummies have allowed very
sophisticated computer analysis of crash effects with some data being measured thousands of times per
second!

Crash dummies have been integral in developing safety features found in most vehicles on the
road today including seat & shoulder belts, head restraints, airbags, antilock brakes and traction
control. Modern vehicles also sport various passive safety features built into the frame. Newer safety
developments are more about crash avoidance including forward collision and lane departure warning
systems.

Obviously, these dummies have been working hard. They may not for much longer, however, as
developments in computer software and analysis may make the dummies obsolete. For over sixty years,
though, crash test dummies have been irreplaceable for auto makers and others in advancing new
safety systems. Let's thank them for their hard work!

            ---------------

Auto Safety and You - Recent Changes to the Safety Ratings System

The National Highway Traffic Safety Administration (NHTSA) is changing its current 5-star Safety Rating System for the 2011 model year. In recent years, almost all vehicles received a 4 or 5 Star rating, essentially making the rating no longer useful. Along with new, stricter standards, the NHTSA  has added a new collision rating and included a summary rating which will make comparing vehicles on safety easier.

The 2011 models are the first to be rated under the new system. Crash tests were run using both the traditional medium-sized male dummy and a small female dummy. Also, the added collision test shows results from a vehicle hit by a pole on the side near the driver. This test simulates hitting a narrow stationary object such as a tree. Thus, the ratings are now based on four collision tests; frontal, roll-over, side-impact, and the new side pole collision. Results from the four tests will combine to form an overall safety rating for the vehicle.

Although the new testing has been done on fifty-five new 2011 models, the ratings are not yet on the vehicle window stickers. This has been delayed, in part because the EPA is revising the fuel economy portion of the sticker. Therefore, it looks like the 2012 models will be the first to show both the new safety ratings and the revised fuel ratings. In the meantime, you can see the safety ratings for 2011 vehicles online at Safercar.gov.

------------------------------------------------------------------------------------------

GPS Services Now Used for Accident Reconstruction

Thanks to the US Department of Defense, twenty-four networked satellites are orbiting the earth 12,000 miles up to provide global positioning anywhere in the world. This global positioning system (GPS) can provide the exact location on earth for a GPS-enabled receiver. This technology is what allows us to have GPS navigation systems in our cars (and elsewhere). These devices aid drivers with step-by-step directions to their destination.

Recently, GPS receivers are also being used to provide essential data for accident reconstruction. Speed and vehicle position will be recorded if a GPS device is in use at the time a crash occurs. This data can then be used by analysts to determine a vehicle’s path and speed before, and even after a collision. Most new vehicles also have an event data recorder. This provides data from rollover sensors and airbags. Thus your Garmin becomes part of the car’s “black box”, though there is no voice recorder (yet!).

When a serious accident occurs, having as much data as possible is essential to reconstruction. Using traditional reconstruction methods and new information provided by the vehicle’s event data recorder and handy navigation system, reconstruction can be done more accurately. Hopefully, this information can be used by the injured parties and those interested in traffic safety.

Staying Safe Behind the Wheel in Winter: Tips For Safe Driving

With one of the worst winter storms in Illinois history passing through early February, it has become extremely important to practice safe winter driving in order to avoid automobile accidents.  Snowy and icy conditions can easily cause your vehicle to skid off-road or into a ditch.  Roadway departures have accounted for over 53% of auto accidents in Illinois.  In 2009, the Illinois Department of Traffic reported 4,844 traffic accident injuries as a direct result of ice or snow on the roadways.  Although these statistics demonstrate that you should completely avoid driving in bad winter weather, this is not always a realistic scenario.  Here are a few beneficial tips to help you handle driving in dangerous winter condition.

• Decrease your driving speed, stay alert and leave yourself at least a ten second following space in order to maintain a proper stopping distance.  Also allow plenty of additional travel time – you should not be in a hurry under hazardous driving conditions. 
• Infrequently traveled roads, bridges and overpasses will freeze first due to being exposed or in shaded areas.  These roadways may remain icy even in temperatures that are above freezing and can develop black ice.  Black ice is a thin layer of ice that resembles a water puddle, but is one of the most slippery road conditions you may encounter.
• If you begin to notice your rear wheels are skidding, immediately take your foot off the accelerator and begin steering in the direction of your skid.  For example, if your rear wheels are sliding left, then steer left.  If your rear wheels begin sliding the other way as you recover, steer toward that side. 
• If your front wheels begin to skid, release the accelerator and shift into neutral.  Your wheels will begin to gain traction as they skid sideways, at which point you should steer in the direction you want to go.  Then shift back into drive and accelerate slowly. 
• When your car starts skidding, anti-lock brakes require that you keep a steady pressure on the brake pedal, which will repeatedly cause your brakes to pulse in order to slow down your vehicle.  If your car does not have anti-lock brakes, you must pump your brakes to stop your vehicle. 
• Do not attempt to pass a snow plow.  Snow plows have a very limited field of vision and will be unable to observe you attempting to pass them.  Also, the road conditions in front of a snow plow are likely very dangerous, so it is advisable to stay 15 car lengths behind a snow plow.
• Snow banks greatly impair visibility, especially when you are turning onto a street.  Turn slowly and carefully because not only will you be unable to see an oncoming vehicle, but they also cannot see you. 
• Keep an eye out for narrow roadways after a snowstorm.  A two lane road may become one lane or a half lane depending on where the snow is plowed.  Turning lanes may also become unusable, so expect heavy traffic conditions when this occurs. 
• Avoid distractions such as talking on your cell phone when driving in dangerous winter conditions.  Also, do not text while you are driving in hazardous weather.  Texting while driving is now illegal in Illinois as of January 1, 2010.   

                  Keeping these driving tips in mind will greatly decrease your chances of being involved in an automobile accident.  In addition to safe driving, you should check your local traffic reports for any hazardous road conditions.  Also remember to test that your car is in proper working condition to handle winter elements.  It is important to keep maintenance of your vehicle, including the wiper blades, tires, windshield fluid, brakes, etc.  However, as stated before, the best advice is to stay off the road during dangerous conditions in order to avoid potential accidents and injury.

-----------------------------

STUDY SHOWS THAT ILLINOIS DOCTORS ARE NOT FLEEING ILLINOIS, AS SOME CLAIM

Article by Ronald F. Wittmeyer, Jr. 

There have been recent media publications in Chicagoland and other parts of Illinois claiming that, based on a recent study of medical students at Northwestern University School of Medicine, physicians are fleeing the state of Illinois.  These claims simply are not supported by the evidence, or even the study itself. 

      Figures from the American Medical Association show that the number of physicians practicing medicine in Illinois has steadily increased over the last 45 years.  In fact, 12 out of 13 states surrounding Illinois have a lower per capita rate of physicians than Illinois. 

      The study referred to was really a survey conducted by the Northwestern University Feinberg School of Medicine, entitled “The 2010 Illinois New Physician Workforce Study.”  This study surveyed 561 graduating Illinois medical students about issues that affect their practice decisions.  Incidently, this survey was funded by the Illinois Hospital Association and the Illinois State Medical Society Insurance Company.  Recent media claims contend that the study showed that 70% of new physicians leaving Illinois did so due to fears of medical malpractice liability in Illinois.  In fact, the survey results are that the two primary reasons new physicians are leaving Illinois are: 1) That the Chicago physician market is over-saturated; and 2) Students are leaving the state to return to their home state to live and practice medicine. 

      Unlike the Chicagoland area, which has an over-saturated physician market, rural areas of the state do have an under supply of physicians.  However, in rural areas of the state, there are very few medical malpractice lawsuits.  For example, according to the Illinois Jury Verdict Reporter, in Rock Island, Illinois, there have been only 4 medical malpractice jury verdicts over the past 10 years. 

      Is the cost of professional liability insurance a factor new physician’s consider in choosing where to practice, along with any other costs of doing business?  Of course; 35% of students surveyed indicated that malpractice rates had some bearing on their decision where to practice.  However, that is far different than claiming that the fear of medical malpractice liability is the primary factor causing physicians to flee the State of Illinois, which never has been and is not now the case. 

-------------------------------------------

NEW ILLINOIS RULES OF EVIDENCE EFFECTIVE JANUARY 1, 2011 

By Ronald F. Wittmeyer, Jr.

Chief Justice Fitzgerald Appoints Special Committee 

      In November of 2008, then Chief Justice Thomas Fitzgerald appointed a Special Committee on Illinois Evidence and charged that committee with codifying Illinois’ Rules of Evidence.  The nineteen member Special Committee was chaired by Illinois Appellate Court Justice Donald C. Hudson, and was comprised of leading Illinois jurists, legal scholars, legislative representatives, and distinguished members of the Illinois bar. 

      Professor Michael H. Graham, the author of a leading Illinois Evidence treatise, acted as the committee’s advisor.  The committee’s purpose was to codify existing Illinois evidence law, not change the law.  Before the committee began its work, Illinois was one of only six states that had not adopted rules of evidence.  Up to this point, the Illinois rules of evidence were scattered throughout case law, statutes, and the Illinois Supreme Court rules.  The goal of the two year effort by the Special Committee was to streamline, simplify, and expedite the resolution of evidentiary issues at trial. Further, Justice Fitzgerald believed that adopting a set of rules of evidence in Illinois would provide clarity and predictability during trials, as well as more uniform application of evidentiary rulings throughout the state. 

      Beginning in November of 2008, the committee held monthly meetings, along with numerous telephone conferences and emails between meetings.  After the committee researched, discussed, and debated every rule, the process culminated in a first draft of the IRE in October of 2009, which was prepared by Professor Graham. 

      The committee then invited public comment, by conducting public hearings and reviewing written comments, which led to modifications of the initial draft of the rules.  The revised draft was then submitted with the committee’s recommendation, and adopted by the Illinois Supreme Court on September 27, 2010, to become effective January 1, 2011. 

New Illinois Rules of Evidence Patterned after the Federal Rules of Evidence 

      The structure and organization of the IRE was patterned after the Federal Rules of Evidence.  While in many cases the Illinois rules are the same or similar to the Federal rules, the intention of the committee was not to mirror the Federal rules, but rather to codify the existing body of Illinois evidentiary law.  The committee decided that it was logical to follow the time-tested organizational structure of the Federal Rules of Evidence, as had all the other forty-four states that had adopted their own state rules of evidence.  Just having the Illinois rules follow a familiar and logical organizational structure, makes researching and resolving evidentiary issues more efficient.  The new rules apply to both criminal and civil cases, unless the rules state otherwise.  However, additional criminal statutes that govern some evidentiary questions are not all included in the new rules.  

      The new rules can be found at the following website:   

          www.state.il.us/court/SupremeCourt/Evidence/Evidence.asp 

Committee Commentary Essential to Understanding New IRE 

      The committee chose not to issue commentary on each rule separately.  Rather, nine pages of committee commentary can be found at the beginning of the new rules.  Review of this commentary is essential to an understanding of the use and application of the IRE. 

      The committee makes clear in its numbered paragraph (1), that its mission was to incorporate into the IRE “the current law of evidence in Illinois whenever the Illinois Supreme Court or the Illinois Appellate Court had clearly spoken on a principal of evidentiary law within the last 50 or so years”.  For example, the IRE retains the Frye standard pertaining to expert opinion evidence, as reflected in IRE 702.  The commentary, as well as Rule 101, also make clear that the legislature is free to adopt further rules of evidence, as long as a statute is not in conflict with the new IRE or a Supreme Court decision. 

      The commentary also explains, in its numbered paragraph (3), that some updating was done as part of its process, which the committee calls “modernization”.  The committee comments indicate that in fourteen instances where there was no conflict with either statutes or recent appellate or Illinois Supreme Court decisions, and where the committee determined that a rule was universally or almost universally accepted in other jurisdictions, that updating the Illinois evidentiary law was in order.  Those fourteen instances of modernization are set forth in the commentary. 

      In numbered paragraph (4) of its commentary, the committee recommended a few changes to Illinois evidence law, only two of which were approved by the Illinois Supreme Court: 1) Allowing opinion testimony as a form of reputation testimony, as set forth in Rule 405 and Rule 608; and 2) Eliminating the requirement that a declarant be found unavailable to testify before admitting a prior statement of then existing mental, emotional, or physical condition, as set forth in Rule 803(3). 

Interpretation and Effect of the New Rules 

      Justice Hudson, in speaking at a recent ITLA seminar introducing the new IRE, pointed out that standard rules of statutory interpretation apply to the interpretation of the new IRE.  That is, the intent of the rule must first be determined from the plain and ordinary language of the rule, if that can be done.  If, however, an ambiguity exists, then it is appropriate to look to the committee comments to determine the drafter’s intent and purpose behind the rule.  Since the overall intent of the drafters was to codify existing law, case law that existed prior to the IRE could then become persuasive.   

      One of the members of the special committee, former Appellate Court Justice, Gino L. DiVito, has published an annotated guide to the new IRE.  Justice DiVito’s guide contains a side by side comparison of the new IRE with the Federal Rules of Evidence.  The colored coded guide illustrates every difference between the two sets of rules, and also contains extensive annotation and commentary by Justice DiVito.  Justice DiVito is continuing to update this comprehensive annotated guide.  This is a tremendous resource, which can be found online at Justice DiVito’s law firm website, which is www.tdrlawfirm.com .  The Illinois Bar Association, has also published a pocket size edition of the new IRE, which can be purchased for $10 from the ISBA. 

      While there will obviously continue to be ample debate over the introduction and exclusion of evidence in Illinois, the time and energy devoted (or wasted) on argument over correctly identifying the applicable Illinois evidentiary rule should be greatly reduced.  The new IRE should afford the practitioner efficiencies in adequately preparing for evidentiary issues before trial, as well as expediting the resolution of evidentiary issues during trial.  The Special Committee performed a tremendous unpaid service to the bench, bar, and citizens of the State of Illinois in creating the new Illinois Rules of Evidence.  

Ronald F. Wittmeyer, Jr. concentrates in plaintiff’s personal injury law.  He is board certified as a civil trial attorney by the National Board of Trial Advocacy.  Mr. Wittmeyer is currently Secretary of the NWSBA. 

LINKS TO LEGAL NEWS SOURCES

• The Chicago Daily Law Bulletin
• Law Journal EXTRA!, from the publishers of the National Law Journal, provides access to a variety of resources, from news to research, legal memoranda to technology reviews. Specialized Databases