New Year's Resolutions 4 of 5: Quit Smoking - What to Know About Electronic Cigarettes

     For Part 4 of Eckert & Smestad's New Year's Resolution blog series, we focus on a very popular resolution: quitting smoking.  The health risks associated with smoking are clear, as are the addictive properties of cigarettes and nicotine.  There are literally thousands of different methods, services, and products available to help people kick the habit, and one such product that is causing some confusion among Illinois restaurateurs and business owners: electronic cigarettes or e-cigs. 

     E-cigs are products which can help ease smokers off of nicotine by delivering a small amount of nicotine through inhaled water vapor rather than tobacco smoke.  There are also claims that e-cigs are healthier than traditional cigarettes because it is only water vapor rather than smoke.  Because of these claims, many restaurant and bar owners were left in the dark as to whether e-cigs were covered under the Smoke-free Illinois Act (410 ILCS 82). 

     The Smoke-free Illinois Act, which became effective on January 1, 2008, banned smoking in virtually all public places in Illinois.  With the recent introduction of e-cigs in the marketplace, man Illinois business owners were left wondering whether the use of e-cigs were permitted in public places covered under the Act.  On January 15, 2014, Chicago's City Council provided some guidance.  The City Council passed an ordinance which treated these electronic cigarettes in the same way as traditional cigarettes with regard to the City's Clean Indoor Air Ordinance - meaning that both traditional and electronic cigarettes are banned from use in most public places in Chicago.  For Chicago restaurant and other business owners, the answer is simple: if you allow your customers or employees to use e-cigs in your establishment, you will risk fines and other consequences under the Clean Indoor Air Ordinance. 

     There has yet to be any clear statewide legislation from Springfield on the topic.  For Illinois restaurant and business owners outside of Chicago, this means you should check with your local city council or a licensed attorney familiar with these laws in your area if you have any questions relating to the use of e-cigs in your establishment.  There will likely be clear guidelines on this issue coming either from Springfield, the Illinois court-system, or local governments soon, but until then, it may be smartest to avoid potential problems all together and ask that customers and patrons go outside to smoke, regardless of whether they are using traditional or electronic cigarettes. 

*This is attorney advertising, and is not intended to be taken as legal advice, nor is it intended to create an attorney-client relationship. Any advice given in the preceding statement is given as general advice and is not intended to be relied upon as legal advice for any specific scenarios. For specific advice, or for answers to your questions, call Eckert & Smestad (312-789-4810) or call a qualified attorney licensed in your jurisdiction.

New Year's Resolutions 3 of 5: Get A Better Job - The Realities of Job-Hunting and Social Media Posting

     For Part 3 of Eckert & Smestad's 5 Part New Year's Resolutions blog, we will explore the realities of job hunting and its relations to personal social media postings.  A common fear that is discussed among people searching for jobs is the fear that posting inappropriate pictures or comments on Facebook, Twitter, blogs, etc. can cost them their job, or a job opportunity.  There have been many instances in which employees have been fired, or prospective employees have been rejected for job opportunities, because of comments or photos posted on social media (see here, here, here, and here).  However, a recent development in Illinois law may give employees and job seekers some relief.  Note, "some" relief, does not mean complete freedom to post anything with no consequences.

   On January 1, 2013, an amendment, commonly known as the "Facebook Bill," to the Illinois Right to Privacy in the Workplace Act went into effect.  This amendment effectively makes it illegal for any employer or prospective employer to request or require passwords or account information for social media from employees or prospective employees in order to gain access to such social media accounts as conditions of employment.  The "Facebook Bill" also prohibits employers and prospective employers from demanding access to its employees' or prospective employees' social media accounts or profiles as conditions of employment.

 
     The amendment states that it is "unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, or conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours." (Right to Privacy in the Workplace Act, 820 ILCS 55/5).  This Act applies to all employers in the State of Illinois.  The law does nothing to prevent or limit an employers' right to set policies regarding the use of social media in the workplace, nor does it prevent an employer from seeking public information regarding an employee or prospective employee.

     This Law can give employees and job hunters some relief, however, it is worth noting that the normal rules of social interaction and business will always apply.  It is still advisable to remember that anything posted on social media should always be considered public and available to the entire world.  Therefore, if you are considering posting a picture or a comment on Facebook, Twitter, Instagram, or any other social media, you may want to take a second and think about whether it is something you want out there.

*This is attorney advertising, and is not intended to be taken as legal advice, nor is it intended to create an attorney-client relationship. Any advice given in the preceding statement is given as general advice and is not intended to be relied upon as legal advice for any specific scenarios. For specific advice, or for answers to your questions, call Eckert & Smestad (312-789-4810) or call a qualified attorney licensed in your jurisdiction.

New Year's Resolutions 2 of 5: Cut Back on Drinking - Illinois Dram Shop Basics

     For Part 2 of Eckert & Smestad's 5-part blog series based upon common New Year's Resolutions, we focus on the basics of Illinois Dram Shop, or alcohol liability, laws.  For many, New Year's is a time to promise to focus on health, which commonly takes the form of reducing one's consumption of alcohol.  This can certainly be beneficial for many obvious reasons, including the fact that the consumption of an excess amount of alcohol can result in risky behaviors which may themselves cause injury to others.  Many states, including Illinois, has enacted laws allowing injured third parties the right to recover compensation for such injuries from establishments which sell or distribute alcoholic beverages.  These laws are known as dram shop laws.

     The Illinois Liquor Control Act of 1934 (Illinois' Dram Shop law) allows an injured third party (meaning not the intoxicated individual causing the injury, nor the liquor-selling establishment) may collect financial compensation from a bar, restaurant, etc. for injuries which were caused by an intoxicated customer.  An example of such a situation would be if John's Bar sells numerous cocktails to Mark, who then leaves John's Bar, gets into his car, and while driving home, strikes a pedestrian with his vehicle, causing the pedestrian to suffer severe injuries.  Under the Illinois Liquor Control Act, the pedestrian would have the right to file suit against the owners of John's Bar, as well as the owners and/or lessors of the property on which John's Bar is located, for getting Mark intoxicated, which ultimately resulted in the pedestrian's injuries.  

      There are certain elements which the injured party must prove before his or her right to compensation is established: 1. He/She was in fact injured; 2. The injuries were caused by an act of the intoxicated person; and 3. The defendant establishment (bar, restaurant, etc) provided the alcohol to the intoxicated person which resulted in his/her intoxication. 

     The Illinois Liquor Control Act also limits the amount of money an injured individual may recover from a defendant establishment for these injuries and/or property damage.  For any incident which has occurred after January 20, 2014, a plaintiff may recover up to $64,017.86 for personal injury and/or property damage from the defendant establishment (see here).  Additional funds may be available from other parties, including the intoxicated individual him/herself.  

     It is important to note, however, that there are relevant time limits for which an injured party must bring suit, per the applicable Statutes of Limitations. 

*This is attorney advertising, and is not intended to be taken as legal advice, nor is it intended to create an attorney-client relationship. Any advice given in the preceding statement is given as general advice and is not intended to be relied upon as legal advice for any specific scenarios. For specific advice, or for answers to your questions, call Eckert & Smestad (312-789-4810) or call a qualified attorney licensed in your jurisdiction.

New Year's Resolution 1 of 5: Be a Nicer Person - The realities of a defamation/slander/libel lawsuit

     Although a little late for the beginning of 2014, we at Eckert & Smestad introduce our 5 part blog series entitled "New Year's Resolutions."  Each blog under this series will tackle a legal issue related to different popular and common New Year's Resolutions. Below, just in time for many people to start giving up on their own resolutions, is part 1:

BE A BETTER PERSON: THE REALITIES OF A DEFAMATION/SLANDER/LIBEL LAWSUIT

     A common resolution goes something like this: "I will be a better person this year." This can be an overwhelming, and sometimes too vague and big a task for many people to successfully complete. One aspect of this resolution is to refrain from speaking negatively or spreading rumors about other people. In legal terms (although there are many elements to this, as discussed below), this can lead to a cause of action for defamation, slander, or libel. The legal definition of defamation, according to this Legal Dictionary is "Any intentional false communication, either written or spoken, that harms a person's reputation, decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person." Generally, slander is defamation that is spoken, and libel is defamation that is written. 

     In order to succeed with a defamation claim, a plaintiff must be able to prove each of the following elements (keep in mind there are many defenses, intricacies, and other legal issues which are involved in defamation claims, and this article is not intended to act as a substitute for the advise of a competent and licensed attorney):

            1. The defendant made a FALSE statement of fact about the plaintiff

            2. The statement was published to a third party (it was told or written to another person besides the plaintiff)

            3. There was fault by the defendant rising to at least the level of negligence (the defendant either made the statement knowing it was false, or with negligence as to whether the statement was false or not); and

            4.  The plaintiff (or his/her reputation) was damaged by the defendant's statement.

     Many people who call attorneys with potential defamation claims call to complain because some person said something negative about them.  While this can sometimes give rise to an actionable defamation claim, there are many common problems which must first be considered before one actually attempts to bring a defamation lawsuit against another.  

     The first problem commonly encountered with many potential defamation claims is that the alleged defamatory statement is an opinion, and not a statement of fact.  Many phone calls that come through our office deal with situations in which someone "said I was dumb" or "told my boss that I was a bad employee" or "told my boyfriend/girlfriend that I was a jerk" (although jerk is often not the word used).  While these may be false, and while they may be harmful to your reputation, many of these statements do not rise to the level of fact necessary to satisfy the first element.  Keep in mind, the first thing that must be proved is that the statement was false.  If someone calls you dumb, you will first have to prove what criteria must be used to judge what "dumb" meant in this particular situation, and then prove that you do not fit that certain criteria.  A more actionable statement would be that some person "said I had an IQ of 40" or "told my boss that I was embezzling money" or "told my boyfriend/girlfriend that I was cheating on them."  These are statements that can easily be disproven.

     The second common problem with potential defamation claims is one of damages.  Even if one can satisfy all of the elements of a defamation/slander/libel claim, the plaintiff must then be able to answer the ultimate question ... so what will make you whole again?  What are the damages you seek?  If the defamatory statement is still being published, the plaintiff can certainly seek a judicial order requiring the statement to be removed from whatever media, or an order requiring the defendant to cease from publishing the statement.  However, in most cases, the defamatory statement was said once and has disappeared.  In these cases, monetary damages is the only award available.  Proving what the damage to your reputation is worth can be very difficult without something solid to lean on, such as a loss of a job due to the statement, failure to obtain a loan or financing, etc.  Without some sort of concrete evidence of the harm to your reputation, it may be difficult, if not impossible, to convince a jury to award you any money.  And that could make the whole process a waste of time and money. 

*This is attorney advertising, and is not intended to be taken as legal advice, nor is it intended to create an attorney-client relationship. Any advice given in the preceding statement is given as general advice and is not intended to be relied upon as legal advice for any specific scenarios. For specific advice, or for answers to your questions, call Eckert & Smestad (312-789-4810) or call a qualified attorney licensed in your jurisdiction.

Travel Safe this Holiday Season

     AAA has estimated that this holiday season over 30% of Americans will travel 50 miles or more to visit friends, family, or simply get away. This means that approximately 96 million people will be traveling by car or plane between December 21, 2013 and January 1, 2014. All those additional travelers mean more dangers, more risks, and of course, more travel headaches. Couple these additional travelers with snow and ice on the roads, and the risk of car accidents and other injuries increases even more.

     If you are traveling this holiday season, here are some tips to keep in mind for safe traveling:

          1. Take your time on the road. Driving too fast for conditions or traffic is a well known cause of many car accidents. In order to ensure that you can arrive on time without having to drive too fast, allow extra time before you leave.

          2. Make sure your car is prepared to travel. This means checking your brake fluids, oil, tire pressure, antifreeze, and all other necessary vehicular aspects before you travel. A few moments spent checking your car can save you a great deal of headaches later on.

         3. Prepare for a breakdown. Bring blankets, water, cell phones, chargers, and a first aid kit with you. In the event that a breakdown does occur, you will want to have all necessary materials with you to keep you safe while you wait for a tow or rescue.

         4. Map out your route before leaving. This removes any last minute decision making about how to get to your destination, and can allow you to focus on the road and other drivers.

         5. Keep focused on what's going on. This works for both driving and flying. By keeping an eye out for black ice, snow, other drivers, other travelers, and on anyone else who may be nearby, you will be able to take necessary steps to ensure the safety of yourself and your fellow travelers.

     Have a happy holiday season, and travel safe!

*This is attorney advertising, and is not intended to be taken as legal advice, nor is it intended to create an attorney-client relationship. Any advice given in the preceding statement is given as general advice and is not intended to be relied upon as legal advice for any specific scenarios. For specific advice, or for answers to your questions, call Eckert & Smestad (312-789-4810) or call a qualified attorney licensed in your jurisdiction.

Winter Comes to Chicago, and Brings Dangerous Driving Conditions

     For most people in the Chicago area, just taking a look outside will make it clear: winter is here. On Sunday, December 8, 2013, Chicago received its first snow of the season. Some predictions stated that Chicago was expected to receive between 1 and 3 inches of snow. Now while that may not seem like a large amount of snow, it can have a major impact on the roads, on travel conditions, and on the safety of motorists and pedestrians alike while traveling.

     It is important to recognize that driving can be hazardous even when the weather is ideal. As of December 8, 2013, the Illinois Department of Transportation (IDOT) states that there have been 835 reported fatal car crashes, resulting in 927 fatalities, which is higher than the number of fatalities to date last year (statistics can be found here). When adverse weather conditions, such as snow, sleet, black ice, and rain are added to the mix, the dangers of collisions resulting in injury or fatality increase because the distance required to bring a vehicle to a stop dramatically increase with such weather.

    To best prepare for winter driving conditions, it is important to winterize your car. It is advisable to schedule a maintenance check of your vehicle to check tire pressure, your tires' treads, the battery, belts, hoses, radiators, oil, brakes, etc. It is also advisable to:

          1. Increase the distance between your vehicle and vehicles or objects in front of you;
          2. Decrease the speed at which you are traveling;
          3. Be careful when driving over bridges and overpasses, as they freeze before the main road;
          4. Keep your lights on to increase your visibility;
          5. Keep your windshield and wipers clean:
          6. Use lower gears when driving to increase road traction;
          7. Whenever possible, brake gently as opposed to braking hard; and
          8. Keep supplies in your car in case of an emergency, such as a charged cell phone, blankets, road flares, or a first aid kit.

    Drive carefully this winter, and this holiday season.  Safe driving can help to guarantee more time with your loved ones this holiday season. And as always, if you or someone you know does have an accident, know your rights and find a licensed, competent attorney.

*This is attorney advertising, and is not intended to be taken as legal advice, nor is it intended to create an attorney-client relationship. Any advice given in the preceding statement is given as general advice and is not intended to be relied upon as legal advice for any specific scenarios. For specific advice, or for answers to your questions, call Eckert & Smestad (312-789-4810) or call a qualified attorney licensed in your jurisdiction.

Questions Remain About Cause of Devastating and Deadly Train Crash in New York

     New information regarding the Metra train derailment on Sunday, December 1, 2013 has come to light. According to investigators, the train was traveling at least 82 mph as it approached a curve near the Spuyten Duyvil bridge where the train derailed at approximately 7:22 a.m. The speed limit at the curve was only 30 mph. According to the investigators, the engineer, a 20-year-veteran, had the brakes fully applied for only 5 seconds prior to the derailment.

     According to  the National Transportation Safety Board member, Earl Weener, the throttle of the train was fully engaged only 6 seconds prior to the derailment.  In Weener's opinion, the brakes should have been fully applied earlier. 

     However, investigators have stated that it is unclear at this time whether human error or defective equipment was to blame for the crash. The investigation has yet to uncover whether the brakes failed or whether the engineer simply failed to slow the train down in time. In a statement made shortly after the incident, the train's engineer stated that he attempted to brake before the train hit the curve, but the brakes were not working properly. According to Senator Charles Schumer, D-N.Y., it is too early at this time to make any conclusions about the train's excessive speed at the moment of derailment. 

    Investigators are also looking into whether additional safety measures, which are available to the New York commuter train system, would have helped to prevent this tragic accident. As of approximately 11:30 pm CT on Monday, December 2, 2013, at least 19 injured people remained hospitalized after the derailment.

Information contained within this article can be found here and here. 

*This is attorney advertising, and is not intended to be taken as legal advice, nor is it intended to create an attorney-client relationship. Any advice given in the preceding statement is given as general advice and is not intended to be relied upon as legal advice for any specific scenarios. For specific advice, or for answers to your questions, call Eckert & Smestad (312-789-4810) or call a qualified attorney licensed in your jurisdiction.