Chicago Injury Lawyer Blog

Two witnesses say that crossing lights and gates were not working when an Amtrack train hit an SUV killing Katie Lunn, a dance instructor at a crossing in University Park. (Chicago Tribune, 4/18, J. Gorner). One witness, who is also a Cook County prosecutor, was driving the car in front of Lunn as they were leaving a dance competition, and asserted that the train missed her by just a few feet. She said that there were two sets of tracks and, “there was no way for a car to know the train was coming. No indication whatsoever, until it honked.”

Witnesses agreed that there was no indication that a train was approaching. The gates were not down and were not coming down, there were no warning bells, and the intersection was not well lit and those who knew it well said it was difficult to navigate. Work crews spent Friday clearing the wreckage and installing new signal arms.

This incident is disturbing to all Chigoans who cross train tracks daily, relying on signals for work, and as a personal injury attorney in Chicago, I’m hopeful that all cities will ensure that their crossing signals are functional property to avoid injuries in the future.

At Hurley, McKenna, & Mertz, we are well aware of the trauma that accompanies wrongful death of children in foster care, as we have both experience and success with such cases. A recent article in the University of La Verne Law Review authored by Daniel Pollack and Gary L. Popham, Jr. illustrates the severity of the cases involving wrongful death of foster children (Pollack and Popham, LaVerne Law Review, Vol 31:1). Please feel free to e-mail dpollack@yu.edu for a pdf copy of the article.

The U.S. Department of Health and Human Services reports that an estimated 1,460 children died from abuse or neglect during the fiscal year 2005. This shockingly large number is only the tip of the ice burg when it comes to foster care issues. However, it is difficult to generalize a problem such as wrongful death of foster children since state laws regarding who can bring suit and what damages may be sought vary from state to state. Furthermore, while the goal of foster care is to “provide a stable, nurturing, and non-institutionalized environment” for children who have been removed from their biological parents, the system of foster care has proven to be notoriously hard to monitor adequately. Sadly, sixty percent of children who enter foster care do so as a result of abuse or neglect from their biological parents. For some of these children, the abuse and neglect only continues.

Evelyn Pesante was the biological mother of four-year-old Angelica who was killed while in foster care. Ms. Pesante brought a wrongful death suit seeking damages for pain and suffering. Angelica and her half brothers were removed form Ms. Pesante’s care as a result of neglect and placed in foster homes. While in foster care, Angelica was severely injured by her foster parent’s thirteen-year-old, 180-pound son who tackled the four year old causing her to lacerate and rupture a liver. After receiving no medical care and essentially bleeding to death internally, Angelica became disoriented and fell down the stairs in the home, causing her death. This is only one case, but the article goes on do describe many other cases that are just as disheartening.

Such irresponsible foster care is a nationwide problem. As a Chicago personal injury attorney who has argued a similar case in Illinois, I am outraged that abuse and neglect is a continuous problem in foster care situations. For many of these children, abuse and neglect is all they have ever known, something we simply cannot tolerate.

Recently, the story surrounding three deaths and eighteen injuries caused by spending time in a “sauna-like sweatbox” has lead to a homicide investigation of the October 8 “Spiritual Warrior” program by self-help expert James Arthur Ray at the Angel Valley Retreat Center near Sedona, Arizona (CNN, 10/18). Ray is widely known for leading programs that “claim to teach individuals how to create wealth from all aspects of their lives -- financially, mentally, physically and spiritually.”

At the program, up to 65 participants, ranging from 30 to 60 years of age, “spent up to two hours inside the sweatbox, a dome-like structure covered with tarps and blankets, the sheriff's office said. Hot rocks and water are used to create steam in the enclosed environment… Fire and rescue officials received an emergency call from the resort and transported the injured by air and land ambulances to nearby medical facilities, the sheriff's office said. Two people were pronounced dead shortly after arrival at a local medical center.”

As a Chicago personal injury attorney, I am concerned about the incidents leading to the three deaths and eighteen injuries. One should consult with their doctor before engaging in any sort of activity or exercise at extraordinarily hot and humid conditions.

In 2006, Hurley McKenna & Mertz secured $12 million in damages for three children abused in a foster home in a settlement with Catholic Charities of the Archdiocese of Chicago. As a personal injury lawyer with experience in this area, it is mind boggling that foster children can be victimized on a serial basis for years without a place to turn to for justice. The Osborn case absolutely represents a failure by the Courts to justly compensate Louise Osborn’s estate for her wrongful death.

On April 10, 1992, Louise and Sean Osborn were taken into Department of Child and Family Services (DCFS) custody after their parents were incarcerated for writing bad checks. They were placed with foster parents Matt and Sarah Augsburger, who had three young children of their own (Pantagraph, Brady-Lunney 6/29).

On July 29, 1993 Sarah Augsburger “told Police she fell asleep downstairs and Louise likely crawled into the cupboard in an upstairs closet. She said when she checked on the child more than two hours later, she found Louise unresponsive on the floor near the cabinet.” Louise was rushed to the hospital with a 105 degree fever and died shortly thereafter. She was three years old.

Over a year later, the DCFS Office of Inspector General investigated a complaint against the Child Welfare Agency and issued a report that was highly critical of Youth Services. The most damaging find was “that Youth Services staff was instructed to handle allegations of abuse within the agency, rather than reporting them to the state as required by law.”

In May, the Illinois court of claims decision that DCFS was not liable for Louise’s death reversed the previous $640,000 jury award in the original 1998 trial and the 2001 retrial, and exhausted all avenues for appeal for the attorney’s representing Louise’s estate. Proceeds from the lawsuit would have gone to her brother, Sean Osborn.

Now, attorney Doug Koth is “calling on Illinois lawmakers to correct what he considers a series of mistakes by Illinois courts in the Osborn case that effectively extends parental immunity to foster parents and protects them from lawsuits involving the supervision of children placed in their care.”

As a result of this unfortunate ruling, the accountability of both foster care agencies and foster parents is now virtually eliminated, which inhibits incentive mechanisms from encouraging both parties to take the necessary level of care in placing children in foster homes and caring for them once they are there. This disappointing verdict paves the way for increased carelessness in foster care and will likely lead to “a higher prevalence of abused and neglected foster children.”