author: JANN, J. Jann, J.

text:
    (Nos. 81-CC-0548, 87-CC-3553 cons.
    Daniel Hines et al., and Robert Osborne, Claimants, v. The State of Illinois, Respondent.

      Opinion filed October 14, 1998.

      Order on petitions for rehearing filed March 25, 1999.

    Thomas & Weintraub (Melissa M. McGrath, of counsel), Beckett & Webber (J. Steven Beckett, of counsel), and Johnson, Frank, Frederick & Walsh (Jeffrey D. Frederick, of counsel), for Claimants.
    Jim Ryan, Attorney General (Darin L. Rasmussen, Assistant Attorney General, of counsel), and Hartmann & Finke (Jeffrey Finke, of counsel), for Respondent.
   OPINION

JANN, J.

These claims arise out of events occurring on November 29, 1979, at which time the Claimants were convicted felons in the custody of the Illinois Department of Corrections. The Claimants and other prisoners were being transported, by bus, from one Department of Corrections facility to another.

The bus in question was stopped within the confines of the Vandalia Correctional Center when said bus caught on fire. The inmates were shackled to a chain inside the bus in question, and despite efforts of rescue by Department of Corrections personnel, the fire resulted in the death of one inmate and various injuries to the Claimants herein.

The complaint against the State of Illinois alleges, in substance, that:

1. All windows on the bus in the area occupied by the Claimants were sealed and barred.

2. All emergency exits, including the roof escape hatches, were sealed and unusable.

3. A chain link partition with a locked gate separated the committed persons from the area at the front of the bus occupied by the guards.

4. Each inmate was handcuffed to a chain running between the seats and the inmates were at all times chained and cuffed and restricted to their seats.

5. At no time were the inmates advised, briefed or drilled with respect to emergency evacuation procedures.

6. Supervisory personnel failed to promulgate adequate fire prevention measures for the bus.

7. The supervisors failed to establish adequate emergency evacuation procedures in the event of a fire.

8. The Department of Corrections used a bus of unsafe design or manufacture, which was negligently modified or maintained for transporting the Claimants.

9. The supervisors failed to have adequately trained personnel aboard the bus.

10. The guards failed to inspect the bus for fire hazards before using it to transport inmates.

11. The guards failed to advise, brief or drill the Claimants as to emergency evacuation procedures.

12. The guards failed to "unwind the chain to which certain of the Claimants were cuffed and a mentally disturbed inmate had wound said chain around a bus seat prior to the fire. The guards knew or should have known that the chain in that condition would inhibit any attempt at evacuation from the bus.

Claimants allege that the proximate cause of their injuries is attributed to the above acts or omissions by Respondent.

This cause has had a tortured and long history in federal and state courts as well as the Court of Claims. The parties agreed to waive hearing and stipulated to the records generated in the federal and state court claims. Both parties filed briefs.

A hearing was held on Respondents motion to dismiss for failure to exhaust remedies on April 21, 1990. Claimants asserted that the State was estopped from raising the exhaustion defense since it had agreed to waive its statute of limitations defense as a condition to dismissal of the federal action. Claimants interpreted that the statute of limitations defense included all procedural defenses. Our order on the motion to dismiss reserved judgment on this factual issue for trial. Oral argument was requested and held on November 1,1994, at which time the exhaustion issue was again raised.

A review of the record, affidavits and arguments indicates the following facts:

1. Claimants filed suit against both the manufacturer and modifier of the bus in question. Both suits, involving 21 Claimants and five law firms representing the Claimants, were voluntarily dismissed after “extensive discovery, investigation and consultation with expert witnesses” per Claimants’ attorneys’ statements. Claimants assert pursuing said claims would have subjected them to sanctions for filing frivolous suits under state and federal rules.

Claimants argue that under the doctrine of strict liability there is no requirement of privity of contract between a manufacturer or seller of the product and the person injured. However, there is a requirement that the product must be, in the case of a suit against a manufacturer, unreasonably dangerous when it leaves the control of the manufacturer. Further, it must be in the same condition as it was when it left the control of the manufacturer when the injury occurs. Pierce v. Hobart Corp. (1st Dist. 1987), 159 Ill. App. 3d 31, 512 N.E.2d 14, 111 Ill. Dec. 110; Ill. Pattern Instructions 400.02; Restatement of Torts, sec. 402.A.

Here, the bus was manufactured by Prevost in Canada but modified by Blitz Corporation in Illinois to State specifications which included sealing off all exits, adding a chain link fence between the driver and passengers and adding bars to all windows. The bus was in a materially changed condition from when it left the control of the manufacturer which gave the manufacturer an absolute defense against Claimants in strict liability. The affidavit of W. Loren Thomson, attorney for Claimants, at paragraph five, indicates that he believed there would be jurisdictional problems and problems in collecting any potential judgments from Prevost and that pursuing the litigation would have engendered significant expenses for expert witnesses and/or trial in Canada. Mr. Thomson opined that to proceed with such a claim would not be economical and could result in the aforementioned sanctions. Mr. Thomson also argues that as the bus was modified by Blitz allegedly to the States design specifications, the Claimants’ case would surely fail against Blitz. It is unclear to the court that this contention is supported by fact and law.

2. The State’s prison officials (the individual defendants) were found liable in a federal District Court jury trial based upon deprivation of civil rights. .

That decision was reversed on appeal and remanded. The Appeals Court found that the trial judge had erred in dismissing the pendant negligence claim. The statute of limitations had run on the pendant negligence claim. The Appeals Court directed the District Court judge to retain the pendant negligence claim unless the defendants agreed to waive their statute of limitations defense in state court. The State subsequently waived its statute of limitations defense against tire individual defendants and the District Court case was dismissed by agreement.

3. The State argues Claimants were then obliged to file suit in circuit court against the individual State Respondents to exhaust remedies. We agree with the State that the waiver of the statute of limitations was not a waiver of all procedural defenses as argued by Claimants. However, it is also clear that the true party in interest was the State and that filing suit against the individuals previously named in the federal suit in Circuit Court would have led to dismissal for lack of jurisdiction. The States petition for certiorari filed with the United States Supreme Court in the 7th Circuit case acknowledges that “lawsuits on the identical claims against the same officials may not be brought in Illinois state courts of general jurisdiction.” The petition also stated that the prisoners could sue the State in the Illinois Court of Claims. Therefore, the States arguments that Claimants should have filed in Circuit Court are, at best, disingenuous.

4. Respondents also argued that Claimants should have sued the unidentified inmate(s) who the State claims started the fire. The State’s allegation is based upon the findings of the State Fire Marshall. The Fire Marshall determined the fire was caused by inmates pushing lit cigarettes through a ventilation grille. The report surmised that the cigarettes fell into a storage area below the passenger compartment where prison records were stored and transported on the day in question. The cigarettes ignited the records and caused a smoldering smoky fire according to the Fire Marshall. However, the Fire Marshall’s report was not properly admitted into evidence. The report was specifically excluded by the judge in the Federal District Court. The stipulation and order herein stated this case would be tried on the basis of the record in the Federal District Court. See order dated October 21,1991.

5. We next address tire States motion to dismiss the claim of the estate of Ben Cantrell for failure to file a notice of intent to sue for personal injury within one year as required by section 22 — 1 of the Court of Claims Act. (705 ILCS 505/22 — 1.) (Mr. Cantrell died during the pendancy of this suit. A suggestion of death was filed and adopted by the Court.) Even if the federal court complaint were construed as notice, it is not timely as it was filed September 25, 1981, almost two years after the incident in question. While we find the States failure to raise this defense until briefs were submitted extremely poor practice, we cannot waive the statutory requirement which has always been strictly construed by the Court. See Slepcevich v. State (1989), 41 Ill. Ct. Cl. 197, 199 and Vela v. State (1984), 36 Ill. Ct. Cl. 336, 337.

Based upon the foregoing we find:

1. The claim of the estate of Ben Cantrell is hereby dismissed for failure to comply with section 22 — 1 of the Court of Claims Act. The Federal District Courts order regarding the waiver of the statute of limitations was narrowly drafted and not a blanket waiver of procedural defenses. Additionally, Claimant Cantrell could have filed in a timely manner in the Court of Claims (as did the other Claimants) while the federal and state suits were pending. Claimant Cantrell’s suit is hereby dismissed with prejudice.

2. Respondents may not rely upon the findings of the State Fire Marshall’s report which is excluded from evidence by stipulation of the parties. Thus, Claimants had no duty to sue other inmates alleged to have caused the fire.

3. Claimants were not obliged to file suit in Circuit Court against individual employees of Respondent pursuant to the waiver of said actions by the State to induce Claimants to dismiss the pendant negligence claims in federal court.

4. The weight of the testimony/evidence herein indicates Claimants chose not to pursue suits against the manufacturer and modifier, respectively, of the bus. The evidence adduced at trial indicated that the fire was caused by an electrical short in the luggage compartment which ignited emergency flares. The smoke from the flares was sucked into the air conditioning system of the bus which was still running at the time and resulted in dense smoke permeating the bus. The evidence of record indicates that said electrical short was the probable result of a manufacturing or design defect and/or negligence and would result in foreseeable harm to passengers. Claimants’ decisions to voluntarily dismiss their suits against said parties and rely upon the stipulated record was at their own risk as regards exhaustion of remedies in the Court of Claims. Claimants have not convinced the Court that their decisions to dismiss suits against alleged joint-tortfeasors was well founded based upon fact and law. It appears their decisions were based upon economic concerns which though understandable, are not a defense to exhaustion of remedies unless a party is clearly judgment proof. See Boe v. State (1984), 37 Ill. Ct. Cl. 72; Soutilli v. State (1989), 42 Ill. Ct. Cl. 192; and Smith v. State (1990), 42 Ill. Ct. Cl. 19.

Respondent’s motion to dismiss for failure to exhaust remedies is hereby granted and these causes are dismissed with prejudice as to Claimants Hines and Osborne. We note that Mr. Osborne’s claim in No. 81-CC-0548 is hereby consolidated as Osborne was named as a Claimant and represented by Mr. Thomson at oral arguments herein under No. 87-CC-3553.

Assuming, arguendo, that Respondents motion were to be denied, the findings in Duckworth v. Franzen (1985), 780 F.2d 645 (7th Cir.) do not support a finding, based upon the preponderance of the evidence, that the negligence of Respondent proximately caused the injuries to Claimants nor that Respondent had actual or constructive notice of the hazardous condition claimed. The guards were exonerated of civil rights violations in the jury trial and negligence was not litigated. Additionally, we note the record is devoid of evidence regarding procedures used in other prison systems to protect inmates transported by bus or the testimony of experts regarding appropriate training of personnel, inmates and establishment of institutional procedures. Claimants herein have relied upon the emotional impact of the admittedly terrifying circumstances and result of the fire to impute liability. In summary, the District Court did not make findings of negligence against Respondent and Claimants have failed to prove their claims by submission of proofs or testimony herein.

Wherefore, these claims are dismissed with prejudice.

ORDER

Jann, J.

These causes come on to be heard on Claimants’ petitions for rehearing of the denials of their respective claims and Respondent’s reply in opposition to the grant of rehearing. Both parties’ representatives filed memoranda in support of their positions with citations and argument.

Claimants assert that the Court erred in both its assessment of the evidence and application of law herein. No new evidence or arguments were presented in Claimants’ petition.

The Court has carefully reconsidered the evidence of record and applicable case law herein as presented most ably by both parties.

We hereby find:

1. Claimants’ arguments were fully addressed in our original opinions denying the pertinent claims. Claimants have asserted the existence of negligent actions arising solely from the conduct of Illinois Department of Corrections personnel. As stated in our previous opinion, assuming, arguendo, that Claimants had exhausted remedies as required, they failed to prove that Respondents breached duties owed Claimants. No testimony of record supports the conclusions of fact and law argued by Claimants as to appropriate procedures, training of personnel and instruction of inmates as to safety procedures in similar circumstances.

We hereby deny Claimants’ petitions for rehearing and affirm our orders of denial and dismissal of the claims herein with prejudice. Respondents’ motions to deny rehearing are granted.


source: Caselaw Access Project

author: Frederick, J.

license: Public Domain

text:
    (No. 86-CC-1419
    Danny L. Dixon and Celia T. Dixon, Claimants, v. The State of Illinois, Respondent.

      Opinion filed October 30, 1998.

    Isadore M. Rernstein and Grazian & Grazian (Douglas W. Graham, of counsel), for Claimants.
    Jim Ryan, Attorney General (Sebastian N. Danziger, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimants, Danny L. Dixon and Celia T. Dixon, filed their complaint sounding in negligence on December 9, 1985. Claimant, Danny L. Dixon’s claim is a claim for personal injuries he received in a motorcycle accident and Claimant, Celia T. Dixon’s claim is for loss of consortium. The cause was tried before one of the Court’s Commissioners.

This cause of action comes before the Court for final decision on the claims of Danny L. Dixon and Celia T. Dixon (hereinafter collectively referred to as “Claimants” or “Claimant Dixon”) for personal injuries sustained by the Claimants due to the alleged negligence of the Respondent, State of Illinois, by and through its agents and employees of the Department of Transportation in maintaining one of its roadways. The incident occurred on September 9, 1985, on an on-ramp to the Stevenson Expressway from Highway 171 (also known as First Avenue) in Cook County, Illinois.

By agreement of the parties and the approval of the Commissioner, the hearing of this claim was bifurcated as to liability and damages. The trial on March 2, 1998, dealt solely with the issue of liability. The parties have agreed that damages are to be considered at a second hearing to be scheduled should a decision in Claimants’ favor on liability be rendered by this Court.

The Facts

On Monday, September 9, 1985, the Claimant, Danny Dixon, was riding his Honda motorcycle home from his workplace as he had done for a number of years. Claimant’s motorcycle was his preferred mode of transportation. His regular route was to take Joliet Road to an entrance ramp of the Stevenson Expressway.

As Claimant proceeded onto the ramp, the Claimant suddenly identified a large pothole in his path. He was behind other vehicles. Claimant believes the dimensions of the pothole were approximately three feet by five feet in width and length and four to six inches deep. Claimants motorcycle went into the pothole and struck the distant edge with enough force to bend the front forks of his wheel. After hitting the pothole, the Claimant was unable to control his motorcycle and struck the side of the on-ramp bridge. When Claimant’s vehicle struck the side of the bridge, the motorcycle stopped, and Claimant was thrown forward and seriously injured. At the time of the accident, the Claimant was traveling between 40 and 45 miles per hour, which was at or near the posted speed limit.

On Friday, September 6, 1985, the Claimant had traveled the very same route and had not encountered or seen any pothole. The first time that Claimant observed the pothole was when he hit it.

The testimony of State employee Kenneth Chlebicki indicated that the Illinois Department of Transportation s (IDOT) Stevenson yard was responsible for the maintenance of the area of highway where Claimant had his accident. Various crews left the Stevenson yard on September 9, 1985, in order to perform various jobs. It appears that those crews took the same route from the yard to the expressway and used the same on-ramp where Claimants accident occurred.

Part of the responsibilities of those road crews would be to report road conditions, such as a large pothole. The IDOT procedure was that after a report of a pothole from a crew member or the public, Mr. Chlebicki or a foreman would investigate the scene and determine what, if any, work was necessary. A road crew would stop and patch a large pothole upon observation of such a condition, even if that was not their specific task that day. A written report would not necessarily be generated if a crew patched a pothole en route to another job or if a complaint was phoned into the yard. Mr. Chlebicki agreed that IDOT had patched the pothole in question at some time, but could not give the specific time frame when the repair was done, how that repair was accomplished, or any other specifics regarding the type of repair.

IDOT had no written record as to any prior complaint of a pothole or other dangerous condition in the area where the Claimant had his accident, nor did IDOT have any record of a prior patching or filling being performed on a pothole in the area. Additionally, IDOT had no record of any complaints of this pothole on September 9,1985.

Both the Claimants and Respondent called experts to testify. Louis S. Jacobs, Ph.D., testified for Claimants that the standard of care required a machine compaction when utilizing asphalt patching on a pothole on a concrete roadway. In his opinion, an improperly compacted asphalt patch, i.e. one tamped by hand, would stay in the pothole only three to four days, depending on traffic. In Mr. Jacobs’ opinion, and depending on the traffic conditions, it is possible that a “new” pothole could be formed in a concrete roadway in two months.

Respondent’s expert, Fred Ludtke, testified that a pothole that was filled and subsequently hand-tamped would meet the standard of care for road construction and maintenance. Temporary measures, such as a cold/ hot mix asphalt patch, can meet the standard of care under most circumstances. He further opined that putting a barrier up to warn motorists at the location of Claimant’s accident would be hazardous given the location of the pothole. Claimants presented no evidence of any prior notice of this pothole to IDOT.

The Law

The fact that a defect in a highway may have caused the accident is not determinative of negligent conduct on the part of the Respondent. In order for a Claimant to recover for injuries suffered as a result of an accident on a State highway due to a pothole, the Claimant must prove, by a preponderance of the evidence, that the State was negligent, that the State’s negligence was the proximate cause of the injuries, that a dangerous condition or defect existed, and that the State had actual or constructive notice of the dangerous condition or defect. (Scroggins v. State (1991), 43 Ill. Ct. Cl. 225.) The Claimant bears the burden of proving by a preponderance of the evidence that the State was negligent in its duty to maintain the roadway in question and that the State’s negligence proximately caused Claimant’s injuries. (Skinner v. State (1975), 31 Ill. Ct. Cl. 45.) The State has a duty to exercise reasonable care in maintaining its highway so that defective and dangerous conditions do not exist. (Baren v. State (1974), 30 Ill. Ct. Cl. 162.) However, the State is not an insurer of the safety of those persons who travel upon its highways. Trotter v. State (1993), 45 Ill. Ct. Cl. 165.

Under the facts of this case, the threshold question that must be answered is whether the Respondent had actual or constructive notice of the defect alleged to have damaged the Claimants motorcycle causing it to hit the bridge. If the question is answered affirmatively for the State and against the Claimant, there is no need to resolve the remaining issues raised by Claimants’ pleadings. However, if the State is found to have actual or constructive notice of the defect or dangerous condition, the issues of duty, proximate cause and comparative negligence must be analyzed.

A thorough review of the evidence leads the Court to the conclusion that the Respondent, by and through its agency, the Department of Transportation, did not have actual notice of the pothole which caused Claimant to crash his motorcycle into the side of the bridge. Claimant provided no actual notice of the pothole. The Court further finds that the Respondent did not have constructive notice of the dangerous condition. This finding is based primarily upon the testimony of Claimant, Danny Dixon. Mr. Dixon testified that the very large pothole that caused his accident and injuries on September 9, 1985, was not in existence at 4:00 p.m. on Friday, September 6, 1985. Therefore, the pothole existed for a maximum period of 72 hours, but more .likely for a shorter period of-time. Claimant presented no IDOT records of prior complaints of a pothole in the area between September 6, 1985, and September 9,1985. No additional testimony or exhibits were offered by the Claimants that established actual or constructive notice of the alleged dangerous condition or defect that caused Claimants accident.

Whether the State had constructive notice depends on the facts of each case. (Stills v. State (1989), 41 Ill. Ct. Cl. 60.) It must be shown that the defect was substantial enough and must have existed for such a length of time that reasonable persons would conclude that immediate repairs should be made or, in the alternative, that warning signs should be posted. (Siege v. State (1971), 27 Ill. Ct. Cl. 399.) Mr. Chlebicki testified that a large, shallow pothole, as he considered this one, was not the type of road irregularity that would be cause for immediate repair or other action by his department.

With regard to duration, it was explicitly established by Claimants testimony that this defect existed for a period of less than 72 hours. This time period is considerably less in comparison to that which was presented in the case of Blair v. State (1994), 47 Ill. Ct. Cl. 108, where testimony established that the large, deep, unpatched pothole existed for a minimum period of two months. This court found constructive notice of the dangerous condition established in Blair, supra. However, we cannot find that the pothole in this case existed long enough to impute constructive notice to the State.

The Claimants seek to establish that the Respondent had constructive notice of the defect because the pothole had been repaired by IDOT at some prior time and that, therefore, Respondent had a duty to diligently maintain that repair. Claimant relies upon Mr. Chlebicki s testimony that, hypothetically, if the pothole was repaired prior to September 6,1985, IDOT would have done those repairs. Mr. Chlebicki viewed the photographs which showed the apparent presence of asphalt patch in the post-accident photos. However, these were post-accident photos and there was no proof the pothole had been in existence prior to Claimants accident.

Claimants rely on the decision in Immordino v. State (1995), 47 Ill. Ct. Cl. 78. Immordino, supra, is similar to the case at hand, but distinguishable because in Immordino, supra, an IDOT employee testified that he had inspected the “chuck hole” that caused an accident. That employee admitted the hole appeared to have been patched by IDOT with cold patch which did not stick in the hole. Such an admission by the Respondent is not present in the instant case. In' this case, there was no proof that IDOT was aware of the pothole before Claimants accident. In fact, there is no credible evidence presented that any pothole patching had been done by IDOT in this area prior to this occurrence, whether it be with cold patch or hot patch, hand tamper, or machine tamper. What is clear is that Claimant took this very route home every work day for a period of almost ten years and he failed to observe the large three-foot by five-foot by four- to six-inch deep pothole at any time prior to the time of the accident. The first time he saw the pothole was when he hit it. It is also significant that Claimant had ridden his motorcycle to and from work for approximately one year, yet had no recollection of running over such a pothole during that time. The testimony of the experts for both Claimants and Respondent indicates drat a pothole in concrete develops over a long period of time. Claimant offered no testimony that anyone was aware of a pothole developing on this portion of roadway during the years preceding this accident.

The conclusion we must draw from the evidence presented is that Claimants have failed to prove that Respondent had actual or constructive notice of the pothole which caused Claimant’s injuries. Because of the vast highway system, the Respondent is only responsible if it has actual or constructive notice of a dangerous or defective condition and fails to reasonably repair the condition or notify the public of the danger. To rule otherwise would hold Respondent to be an insurer of the safety of those using its highways. The law is clear that Respondent is not such an insurer. Claimants have failed to meet their burden of proof.

Since we find that Mr. Dixon has failed to prove his claim by a preponderance of the evidence, Mrs. Dixon’s derivative claim must also fail.

For the foregoing reasons, it is the order of the Court that Claimants’ claims be and hereby are denied.


author: Epstein, J. Epstein, J.

text:
    (No. 86-CC-3448
    Goodman’s Peppermill Restaurant, Claimant, v. The State of Illinois, Respondent.

      Order filed July 10, 1995.

      Opinion filed January 11, 1999.

    Roger C. Goble, for Claimant.
    Jim Ryan, Attorney General (Tomas A. Ramirez, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Epstein, J.

This 1986 claim is before us on the States motion to dismiss tire Claimants amended complaint which was filed in February 1995 after eight and one-half years of unexplained and seemingly unwarranted delays. The Claimant has not responded to the States motion, which was filed immediately after the amended complaint in February 1995. The States motion to dismiss is jurisdictional and must be decided on its merits despite Claimants failure to respond.

The State’s motion to dismiss contends that this Court lacks jurisdiction, presumably subject matter jurisdiction, over this eminent domain action because (1) jurisdiction over “eminent domain actions” is “vested in the Circuit Court # # by the [1970] Illinois Constitution,” and (2) this Court lacks jurisdiction over a case that can be or could have been litigated in the courts of general jurisdiction of Illinois.

Although (1) it is far from clear that subject matter jurisdiction over eminent domain actions is constitutionally vested in the Circuit Court any more or any less than over other lands of justiciable controversies, and although (2) as a general matter this Court has held and adheres to the second principal now invoked by the State, it is unnecessary to reach any application of either principal in this case because it is clear that the claim asserted in the amended complaint is not an eminent domain action.

The State’s motion mischaracterizes the pending claim, which is not ah action by a condemning authority to exercise eminent domain powers. The amended complaint is a damages claim by a landowner alleging a de facto taking by the State, which is an inverse condemnation claim predicated on a cognizable loss or damage to property. Whether the amended complaint is adequate, or whether Claimant can prevail on this difficult claim, is not before us. But the basis of the States motion is plainly incorrect, and there seems little, if any, doubt that an inverse condemnation action against the State, which is how this case is now pleaded, lies in this Court and not in the Circuit Court.

Accordingly, the States motion to dismiss must be, and is, denied.

This cause is remanded to Commissioner Griffin with directions to set a final trial date, a final motion date, and to direct the State to file a departmental report as soon as feasible.

OPINION

Epstein, J.

This 1986 claim, which is styled as both an inverse condemnation action and as a constructive eviction action, seeks recovery of economic damages allegedly suffered by Claimants restaurant business as a consequence of the Respondents prolonged 1983-84 highway reconstruction work on Route 41 at Clavey Road in Lake County, Illinois. The case is finally before us for decision following its 1997 trial to Commissioner Howard Kane, who has filed his report to the Court.

The Facts

For many years the Claimant owned and operated a restaurant, known at times as Bobby G’s Restaurant, on. leased property at the north end of the Edens Expressway in Lake County, i.e., the point where the limited access Edens Expressway ends and the road continues north as Route 41, a semi-limited access four-lane highway. Claimants restaurant was situated on the northwest side of the Route 41 (Skokie Highway) — Clavey Road intersection. At that point, Skokie Highway served as an exit ramp for the Route 41 traffic.

Claimant s restaurant was profitable for over 10 years. Claimant says that the restaurant was situated at a significant location because it was at the first “easy exit” to food service for northbound travelers from Chicago and was the last readily accessible stop for commuters heading south into the city. Claimant maintains that the restaurant maintained a strong breakfast business due to its location and accessibility. None of this was disputed at trial.

In 1983, Respondent, through its Department of Transportation (“IDOT”), implemented a major reconstruction project on Route 41, including the segment adjacent to the Claimants Restaurant, where Route 41 became the Edens. The project included widening of the roadways, redesign of the entrance and exit ramps, and improvements in the road infrastructure. The project took at least two and one-half years according to Claimant; IDOT acknowledges that the project extended over both the 1983 and 1984 construction seasons.

The evidence at trial indicates that IDOT and its contractors did not completely obstruct ingress to or egress from the restaurant site. However, our commissioner concluded that the construction work did make access to the restaurant more difficult, a finding we accept. The Claimant does not contend, and did not prove, that IDOT or its contractors used or invaded his leased property or physically altered it in any way.

IDOT’s witnesses testified to their efforts to mitigate the impact of the project on adjacent landowners, particularly businesses, and to minimize the amount of work actually done in the vicinity of the restaurant, as well as the overall amount of time during the project period when traffic was substantially altered on Route 41. However, the essential facts are not materially disputed.

The Legal Arguments Advanced

Although Claimant initially pleaded a “constructive eviction” theory in its complaint, this claim was tried and argued solely on the Claimants alternative inverse condemnation theory. Claimant has abandoned its constructive eviction theory, which we will not further address.

The Claimant attributes the undisputed decline in the restaurants business during the road reconstruction project to: (1) diversion of regular commuter and Wisconsin traffic to alternative routes; (2) the restriction of traffic to reduced numbers of lanes and consequent slowing; and (3) the enhanced difficulty during construction of exiting at Clavey road, reducing or eliminating a major attraction to the restaurant (i.e., visible and easy access). To recover the economic losses attributed to these causes, Claimant advances two theories asserting a liberally compensatory view of property rights and of eminent domain law.

First, Claimant urges a liberal construction of the Illinois Constitutions guarantee of compensation for “private property * * # damaged for public use.” (1970 Ill. Const., Art. I, §15.) (Emphasis by Claimant.) Claimant relies on the settled caselaw under the 1870 and 1970 Constitutions, commencing with Rigney v. City of Chicago (1881), 102 Ill. 64, that recognizes access to adjacent public roadways as a “private property right inherent in ownership of real estate abutting a highway” that requires just compensation for a taking or material impairment.

Second, based on decisions of the U.S. Supreme Court and of sister states’ courts, Claimant argues that the law now recognizes as a compensable “taking” or “damaging” various non-invasive, non-possessory, indirect injuries to — or inhibitions on — the use of private land due to governmental actions.

Claimant cites Griggs v. County of Allegheny (1962), 369 U.S. 84, and United States v. Causby (1946), 328 U.S. 256, which both involved persistent low aircraft overflights; Knight v. City of Billings (Mont. 1982), 642 P.2d 141 (diminished value of property held compensable due to adjacent construction activities); Knight v. City of Missoula (Mont. 1982), 827 P.2d 1270 (interference with land use by nearby public construction project held compensable); Harding v. Department of Transportation (Dist. Ct. App. 1984) 205 Cal. Reptr. 561 (allowed damages for diminution of land value due to widening of abutting highway); Lambier v. City of Kennewick (Wash. App. 1989), 783 P.2d 596 (damages for collapse of house caused by adjacent highway construction); Thomsen v. State of Minnesota (Minn. App. 1969), 170 N.W.2d 575 (possible loss of lateral support due to adjacent construction warranted “damages” trial; claimed “taking” of unused highway access rights dismissed); Board of Education v. Palmer (N.J. Supr. Ct. 1965), 212 A.2d 564 (allegation of total destruction of beneficial use of school land due to adjacent construction requires trial on “taking” theory).

In defense, the Respondent contends that no inverse condemnation action lies for business interruption losses due to traffic diversion and access inhibition, because there is no property right that has been “taken” or “damaged” in contemplation of the Illinois Constitution (1970 Ill. Const., Art. I, Sec. 15) or the United States Constitution (Amendments V, XIV). Respondent cites three of this Courts decisions, Spur Distributing Co. v. State (1943), 13 Ill. Ct. Cl. 94; Nauyoks v. State (1941), 11 Ill. Ct. Cl. 542; and Grothe v. State (1937), 10 Ill. Ct. Cl. 49, as well as to two of our Supreme Court: Chicago Flour Company v. City of Chicago (1910), 243 Ill. 218; and Peck v. Chicago Railway Co. (1915), 270 Ill. 35. For the proposition that business losses due to traffic diversion are noncompensable as a matter of constitutional law because of the absence of a property right in the traffic flow, Respondent relies on Department of Public Works v. Bloomer (1963), 191 N.E.2d 245, and Winnebago County v. Rico Corp. (2d Dist. 1973), 11 Ill. App. 3d 882, 296 N.E.2d 867.

Analysis

This case does not turn on resolution of difficult fact issues. This case turns on the (disputed) state of the law of compensable injury to property, and its application to the particular facts of this case where vehicular access to the Claimants commercial (leased) property was significantly impaired but not prevented for a significant but temporary period.

Claimant is correct that Illinois recognizes road access, at least on adjacent roadways, as a property right and that its “taking” or elimination, as well as material permanent reductions, are compensable in eminent domain proceedings (for “takings”) or in inverse condemnation proceedings (for “damages” to property not taken). Rigney v. City of Chicago, supra; Department of Public Works and Buildings v. Wilson and Co. Inc. (1975), 62 Ill. 2d 131, 340 N.E.2d 12. The Illinois standard was articulated in Rigney, 102 Ill. 64, at 78:

“Under the [former] constitution * * 8 it was essential to ° ' recovery * * * that there should be a direct physical injury to the corpus * * * of the - property * * *; but under the present constitution it is sufficient if there is a direct physical obstruction or injury to the right of user or enjoyment, by which the owner sustains some special pecuniary damage in excess of that sustained by the public generally, which by the common law, would, in the absence of any constitutional or statutory provisions, give a right of action.”

This standard “has stood unchanged and unmodified since Rigney was decided” in 1881, “has been approved by the highest court of this country [citations omitted] * * * [and] has influenced development of American law. [citations omitted].” Citizens Utility Co. of Illinois v. Metropolitan Sanitary District of Greater Chicago (1st Dist. 1974), 25 Ill. App. 3d 252, 322 N.E.2d 857, 861 (Leighton, J.).

This principle was applied to access rights in Rigney (loss of access due to construction of viaduct presented a just compensation for “damages” issue for the jury), and has found repeated application in cases of taking or “material impair[ment]” of access to adjoining or adjacent streets, Wilson and Company, supra, 340 N.E.2d at 16 (citing numerous decisions). However, as the Supreme Court also stated in Wilson (ibid.):

“Not eveiy limitation of access is compensable. It has been held that a property owner is not entitled to damages resulting from the vacation of a [non-adjacent] street s * * where his free access is not impaired even though the closing of the street " * * may result in inconvenience and circuity of travel, [citations omitted.] In such cases the inconvenience to the property owner is deemed to be no different in kind than that experienced by the public in general, as distinguished from the closing of a street in front of the abutting owners property which leaves it on a “blind-court.” (citations omitted.) Similarly, a property owner has no property right in the flow of traffic along the street which abuts his premises ([Department of Public Works and Buildings v.] Mabee[, 22 Ill.2d 202, 205; 174 N.E.2d 801]); nor, if his right of access is not materially impaired, can he complain of public improvements which either accelerate traffic flow [citation omitted], or have the effect of diverting traffic to other avenues (Hohmann [v. City of Chicago, 140 Ill. 226, 231, 29 N.E. 671 (1892)]) ° * *.
0 9 0
The decisions thus indicate that the “right of access” ” 0 0 is a private property right inherent in ownership of real estate abutting a highway. When such access is taken or materially impaired by action of the State the property owner is entitled to compensation. If, however, there is no physical disturbance of the right of access vis-a-vis the abutting highway, then any damages which may result to tire property owner as a consequence of a change in the use of the highway by the public are damnum absque injuria even though such damages may be very substantial.”

The foregoing views are still the law of Illinois today, and dispose of Claimants inverse condemnation claim for economic damages occasioned by the diversion of traffic away from its location and due to the inhibited access to the restaurant site caused by IDOTs construction activities. Claimant has asserted, and rested its claim upon, a kind of damages that are noncompensable as a “taking” or “damaging” of property rights — including access rights— in Illinois: damnum absque injuria in the classic language of our law.

We are unpersuaded by Claimant’s authorities that this Court could (or if it could that it should) adopt or “recognize” a more liberally compensatory view of “damages” to property in order to redress economic losses caused by nearby State construction activities that are non-destructive, non-possessory, non-invasive and that do not involve “physical disturbance of the right of access” (Wilson and Co., Inc., supra (emph. added)).

First, the U.S. Supreme Courts decisions in Griggs, supra, and Causby, supra, are inapposite here, although they are authoritative constructions of the Fifth Amendment “taking” clause. Those cases involved no “access” issue; and the cognizable taking in Griggs and Causby were caused by extreme and constant aircraft noise that was itself invasive of the property and different from the general public injury caused by the nearby public airport.

Second, the cited Montana and California decisions (Knight v. City of Billings, supra (Mont. 1982); Knight v. City of Missoula (Mont. 1992), 827 P.2d 1270; and Harding v. Department of Transportation (Cal. Dist. Ct. App. 1984)) reflect different, more liberal standards of compensable injury under the laws or constitutions of those states. Absent a change in Illinois law by legislation or decision of our Supreme Court, we are bound to apply this state’s settled caselaw and must decline to follow those foreign decisions. The other foreign decisions cited by Claimant do not reflect a more liberal standard of “property rights” or compensability.

Finally, our own precedents are fully in accord with the settled caselaw. The decisions cited by Respondent are exemplary. In Grothe v. State (1937), 10 Ill. Ct. Cl. 49, this court reaffirmed its holding in Grassle v. State (1934) , 8 Ill. Ct. Cl. 151, that:

“Inconvenience, expense or loss of business necessarily occasioned to the owners of abutting property during the * * ° construction of a public improvement, do not constitute damage to property not taken, within the meaning of the Constitution, but merely a burden incidentally imposed upon private property adjacent to a public work, and without which such improvements can seldom be made and therefore give no cause of action °

In Nauyoks v. State (1941), 11 Ill. Ct. Cl. 542, which was a consolidated opinion on 19 claims, this Court reiterated the rule of Rigney v. City of Chicago, supra, but observed: “The owner of property has no guaranteed assurance against diversion of traffic away from his place of business” (11 111. Ct. Cl. at 562) and we reaffirmed the unrecoverability of damages for “inconvenience, expense, or loss of business” to abutting properties that are caused by temporary access and traffic disturbance caused by nearby public works projects (id., at 564). Spur Distributing Co. v. State (1943), 13 Ill. Ct. Cl. 94 is to the same effect.

This Court has enforced property rights, and has awarded compensation to landowners when their property rights were taken or materially impaired, see, e.g., Harbeck v. State (1943), 13 Ill. Ct. Cl. 70; Benvenuti v. State (1965), 25 Ill. Ct. Cl. 207. And this Court has awarded damages for ongoing material injury to access rights, when the injury has been shown to depreciate the value of the property, e.g., Crites v. State (1964), 25 Ill. Ct. Cl. 26. But the injury must be material and more than temporary to warrant compensation, and the Claimant must satisfy the governing measure of damages — the loss of value of the property — neither of which were proven by this Claimant.

Conclusion

For the foregoing reasons, we find that the Claimant has not established a compensable injury to his property in this case, and has failed to prove cognizable damages to his property occasioned by actions of the Respondent within the ambit of Article I, section 15 of the Illinois Constitution of 1970. Accordingly, this claim is denied and forever barred.

       In Rigney, our Supreme Court gave a strongly remedial construction to the then-new “damages" clause of the 1870 Constitution's eminent domain clause (Art. II, Sec. 13), on the basis that the 1870 text had the added words “or damaged” that had not appeared in the 1848 Constitution. See Rigney, 102 Ill. at 74-75, discussed infra.

       Those cases appear to be straightforward — but inapposite — applications of existing standards to direct physical damage claims occasioned by off-site governmental construction activities (Lambier v. City of Kennewick, supra (Wash. App. 1989), and Thomsen v. State of Minnesota (Minn. App. 1969)) or to an alleged total destruction of land’s useability (Board of Education v. Palmer (N.J. Supr. Ct. 1965)).

        Grothe cited extensive precedent in this court: Stein v. State (1934), 8 Ill. Ct. Cl. 251; Glenbard Golf Club, Inc. v. State (1935), 8 Ill. Ct. Cl. 651; Morlock v. State (1935) , 9 Ill. Ct. Cl. 92; and in the Supreme Court: Osgood v. City of Chicago (1894), 154 Ill. 194, 41 N.E. 40; Lefkovitz v. City of Chicago (1908), 238 Ill. 23, 87 N.E. 58; Chicago Flour Co. v. City of Chicago (1910), 243 Ill. 268, 90 N.E. 674; Peck v. Chicago Railways Co. (1915), 270 Ill. 34, 110 N.E. 414; City of Westchester v. Ring (1924), 312 Ill. 544, 144 N.E. 333.


author: Raucci, C.J.

text:
    (No. 87-CC-0819
    Martin Pitts, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 23, 1999.

    Dorian B. Lasaine & Joseph M. Gibson, for Claimant.
    Jim Ryan, Attorney General (Brian J. Dees, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, C.J.

This cause comes on for hearing upon the Commissioners recommendation, the Court being fully advised in the premises, the Court finds:

A hearing was held on August 13, 1998, with both parties present by their attorneys and the facts were adduced as follows:

On December 12, 1979, the Claimant was paroled from the Illinois Department of Corrections. On December 24, 1981, he was released from parole.

On April 19, 1984, parole officer Robert Ames sent a letter to the Claimant at 1027 Adams in Peoria, IL, stating that there was an error in the parole discharge date and requested the Claimant to report to the parole office. On May 7, 1984, Warrant Officer James Doss caused an arrest warrant for Claimant to be issued, alleging escape from Vandalia.

On November 3, 1984, the Claimant was arrested in Peoria County, taken into custody and held in the Peoria County Jail.

Claimants lawyers filed a habeas corpus petition and he was released from custody on November 9, 1984.

The Claimant testified that during the course of his parole he met with his parole officer a total of 24 times and never gave him an address of 1027 Adams. The address he gave to his parole officer was his address of 309 Morton St. He further testified that he never received the letter of April 19,1984.

The Claimant further testified that he was working at Georges garage at the time for $325 per week and he lost that job while in custody. He also testified about the deplorable conditions at the Peoria County Jail at the time, which is undisputed as the county was in the process of building a new jail and the old jail had been condemned. He testified about the fear of being there and the fear of being returned to prison. His wife, Darlene Pitts, testified that, at the time of her husbands arrest, they had a young child confined to a wheelchair as a result of cerebral palsy and they were preparing her for surgery in December of 1984. She also testified that she sold assets, such as a truck for $500, a stove and refrigerator for $250, a TV, a stereo and miscellaneous jewelry to hire an attorney. She testified that this totaled $3,000.

All of the Claimants testimony was undisputed, including the facts leading up to the arrest which were introduced by stipulation.

The issue is whether the State of Illinois may be held hable for negligent false imprisonment without proving willful and wanton misconduct on the part of the State. The Claimant filed a timely brief in support of his position. The State did not file a brief in response.

Many decisions involving false imprisonment are based on the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1 et seq.), under which local public entities and their employees are protected from liability arising from the operation of government, except for willful and wanton conduct. However, this Act does not include the State and, as a result, the requirement of willful and wanton conduct may not be inferred from this Act.

The Claimant makes the argument that willful and wanton conduct did occur and cites numerous cases to support his position. However, none of the cases cited are on point in this case. In any event, we find that there is no requirement of proof of willful and wanton conduct.

An illegal restraint raises the right to recover at least nominal damages so long as the restraint is shown to be improper. Shelton v. Barry (1st Dist., 1946), 328 Ill. App. 497, 66 N.E.2d 696.

In Adams v. Zayre Corp. (2d Dist., 1986), 148 Ill. App. 3d 704, 499 N.E.2d 678, 102 Ill. Dec. 121, the Appellate Court did not question the $2,500 in compensatory damages awarded for a 5 to 15 minute detention of the plaintiff by store security personnel. And, in Velez v. United States (S.D.N.Y., 1988), 693 F. Supp. 51, 58, the Court awarded damages of $25,000 for a three day improper detention. The Court stated that “the principal element of damages is the loss of freedom, although the court also takes into account, to a modest degree, the fear and nervousness suffered as a result of the detention.”

The Claimant proved actual damages of $3,000 plus the loss of his employment.

We find that, based upon the particular facts of this case, the Claimant is entitled to an award of $7,500.

It is therefore ordered, adjudged and decreed that Claimant is awarded seven thousand five hundred ($7,500) in full and complete satisfaction of this claim.


text:
    (No. 87-CC-1044
    Richard Margolis, Individually, and as Administrator of the Estate of Michelle Margolis and Joshua Margolis, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 4, 1998.

    Cooney & Conway (Michael J. Lubeck, of counsel), for Claimant.
    Jim Ryan, Attorney General (Diann K. Marsalek and Robert T. Lane, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Frederick, J.

The original Claimant, Marjorie Ocasek, special administrator of the estate of Michelle Margolis, filed her complaint sounding in negligence in the Court of Claims on November 13, 1986. A second amended complaint was filed on April 11, 1991, by Richard Margolis, individually, and as administrator of the estate of Michelle Margolis, deceased, Joyce Margolis, and Joshua Margolis. The second amended complaint alleges that on May 19, 1986, the Respondent negligently maintained a portion of Route 45 in Lake County, Illinois, which was the proximate cause of the death of Michelle Margolis who was driving in a southerly direction on Route 45 that early morning. Claimant alleges that the Respondent negligently caused the roadway to be constructed in a dangerous and defective condition, caused the road to curve so that a driver would easily lose control, failed to give notice of a dangerous curve to drivers, allowed the road to remain in a dangerous condition, and failed to repair the roadway. Claimant seeks substantial damages for the heirs of the decedent. The cause was tried by one of the Courts Commissioners.

Facts

At about 2:00 a.m. on May 19, 1986, the Claimants decedent, 19-year-old Michelle Margolis, was driving her parents’ Oldsmobile station wagon southbound on Route 45 north of Grass Lake Road in Lake County, Illinois. Claimant’s decedent and two college friends, Kathy Kirchardt and Julie Weiss (Wynveen), were returning from Wisconsin where the three young ladies had been drinking at a bar called “Horsin’ Around.” The girls were in “Horsin’ Around” for several hours. Michelle Margolis was drinking “Blue Hawaiians” and beer. Upon leaving the bar at about 1:00 a.m., they found that Michelle’s vehicle had been towed from the parking lot. A Kenosha police officer then transported all three young ladies to the tow yard. Claimant’s decedent was permitted to retrieve her vehicle and she started driving home. They started for home at about 1:30 a.m. on Monday morning. Julie Weiss (Wynveen) suggested that they take Route 45 back to her house in Grayslake instead of back-tracking to Route 83. Claimant’s decedent agreed to the route, however, she was unfamiliar with this road.

As Claimant’s decedent’s vehicle drove south, the weather was damp and hazy. The road was wet from rain. Claimant’s decedent was speeding, and at times, was driving as fast as 85 miles per hour. Michelle was laughing and said, “I can’t believe I’m going this fast.” The rural road was dark without any street lights or reflectors. Although Michelle was speeding, the vehicle safely negotiated a slight left curve north of Grass Lake Road. As Claimants decedents vehicle came out of the left curve and she was on a straight part of the roadway, the right wheels dropped two to three inches from the asphalt road surface to the gravel west shoulder. Claimant’s decedent screamed, “Julie!” Julie said, “Michelle, slow down.” The car traveled with its right tires on the gravel shoulder for a distance of 77 feet along the edge of the pavement. After traveling 77 feet, the vehicle went back on the roadway, went into a broadside 90 degree skid, and slid across the two lanes of Route 45. The vehicle then skidded across the east gravel shoulder and into a ditch where it struck some small trees, bounced off a utility pole, and came to rest in the northbound lanes of Route 45. Claimants decedent was thrown into the back seat and was killed instantly.

The first person on the scene was Tom Erlenborn. Mr. Erlenborn, a long-time resident at 49202 North Highway 45, testified that he had heard many accidents on Route 45 from his house that were similar to the accident that took the life of Claimants decedent. Mr. Erlenbom testified that most accidents he had seen began with vehicles traveling southbound that missed the curve. He testified that at times the vehicles hit his driveway and sometimes they didn’t. Claimant’s decedent’s vehicle did not miss the curve but went beyond the driveway of Mr. Erlenborn.

Mr. Erlenborn testified that several years before this accident, following a fatal accident involving a young man named Harrison from Lindenhurst, Mr. Erlenborn contacted Frank Gronn of the Illinois Department of Transportation to request that the State address the dangerousness of the road. Mr. Erlenborn noticed no changes in the road or the signage of the road following his first conversation with Mr. Gronn. Mr. Gronn did not recall this call from Mr. Erlenbom. Mr. Erlenbom testified he contacted Mr. Gronn a second time three months after the Margolis accident, again asking the State to address his concerns for the safety of the drivers on the road. In response to this call, Mr. Gronn inspected the curve. As part of his inspection, he performed a ball bank test. This test was designed to measure the severity of a highway curve at a given speed. If the ball bank test measures “10” or greater during the test, an advisoiy sign is erected. When Mr. Gross tested the curve complained of by Mr. Erlenbom, the highest reading was “three.” However, in an effort to satisfy Mr. Erlenbom’s concerns, Mr. Gronn had a sign erected.

Responding Officer Edward Davis testified in his evidence deposition that the west shoulder of Route 45 was two to three inches lower than the road surface at the point where the right tires of the Margolis vehicle left the roadway. A tire mark along the shoulder indicated that the vehicle traveled 77 feet along the edge of the road before going back on the highway. The police report, submitted by Respondent as part of its departmental report, confirms the drop-off and path of travel. The road was striped, but there were no delineators, no pavement reflectors, and no warning signs of any kind for southbound traffic entering the curve.

Claimant’s expert, Gordon White, an engineer, testified that three specific defects in the road contributed to the accident which took Michelle Margolis’s life. First, the two to three inch drop-off caused the right tires to scmb along the edge of the roadway, preventing the Margolis vehicle from regaining the road in a controlled manner. Second, the absence of reflectors created a deficit in the positive guidance necessary to permit and assist Ms. Margolis in following the course of the road, and, third, trees in the “clear zone” alongside the highway created an obstruction.

The Respondent presented the testimony of Michael Hankey, an engineer and road expert, to testify as to the condition of the highway in question. In Mr. Hankey s opinion, a two to three inch drop-off was not a hazard, and if such a drop-off did exist, it was reasonably safe. Also, Mr. Hankey testified that there was no evidence of what Gordon White described as “scrubbing” in any of the documents. As evidenced by the police report and Deputy Sheriff Edward Davis’s evidence deposition testimony, the tires left the roadway, traveled 77 feet, and reentered the highway at a point where the shoulder was flush with the highway. At no point did the tires “scrub” or otherwise get hung up when re-entering the highway.

Mr. Hankey also testified that the road markings, consisting of yellow center lines and a white edge line, were sufficient positive guidance. He pointed out the fact that guidelines included in the Uniform Manual on Traffic Control are not mandatory requirements but instead are guidelines that are to be employed using the road engineers’ judgment and discretion.

Mr. Hankey also testified that the clear zone is the distance from the edge of the adjacent lane where a vehicle is traveling into a roadside or to an area outside of the lane. Here, where the Margolis vehicle slid/skidded across the road, the edge of the adjacent lane in this case is the center line of Route 45. Similarly, while Dempsey Leith, the officer in charge of accident investigations for the Lake County Sheriff’s Office, did not use the term “clear zone,” he indicated in his coroner’s inquest testimony that the measurement from the roadway starts at the center line, as opposed to the edge of the road on the other lane. Mr. Leith testified at the coroner’s inquest that the trees were approximately 23 feet from the center line of the roadway. If one measures the “clear zone” from the edge of the adjacent lane as Mr. Hankey and Mr. Leith suggest, the trees are 23 feet from the center line and outside the 20 feet Mr. White estimates to be sufficient for the clear zone.

Michelle Margolis was 19 years old and had just completed her freshman year at Northern Illinois University at the time of the accident. She is survived by her father, Richard, her mother, Joyce, and her younger brother, Joshua.

The Law

The State is not an insurer of the conditions of the highways under its control but does have a duty to the public to use reasonable care in maintaining its roadways. (Cataldo v. State (1983), 36 Ill. Ct. Cl. 23.) To prevail, the Claimant must prove the State was negligent, that the negligence of the State was the proximate cause of the injury, and that the State had actual or constructive notice of the alleged defect in the roadway where the accident occurred. (Edwards v. State (1984), 36 Ill. Ct. Cl. 10.) The Court will also consider comparative negligence of the Claimant in adopting an award. Alvis v. Riber (1981), 85 Ill. 2d 1; Guffey v. State (1987), 40 Ill. Ct. Cl. 179; Koepp v. State (1993), 46 Ill. Ct. Cl. 344.

The State also has a duty to maintain the shoulder of its highways in a manner reasonably safe for its intended purposes, but the standard of care is higher for a highway than the shoulder since the reasonably intended use of the highway requires a greater level of care than the shoulder. (Siefert v. State (1989), 42 Ill. Ct. Cl. 8.) The evidence in this case indicates the shoulder drop-off was two to three inches over a very short length of roadway. While each case must be considered on its own facts, this Court has rejected claims where the shoulder drop-offs were considerably greater than two to three, inches and continuous for longer stretches of roadway. (Hill v. State (1978), 32 Ill. Ct. Cl. 482; Alsup v. State (1976), 31 Ill. Ct. Cl. 315; Lee v. State (1964), 25 Ill. Ct. Cl. 29.) A shoulder that is a few inches lower than the pavement does not amount to negligence, per se. The Court has consistently held in prior cases involving a shoulder drop-off that the driver was obligated to slow down before attempting to re-enter the highway. (Alsup, supra at 312 citing Lee v. State (1964), 25 Ill. Ct. Cl. 29, 34.) The State does not have a duty to maintain the shoulders of its highways in a manner that would insure the safety of vehicles turning off onto a shoulder, for whatever purpose, and then attempting to return to the roadway while traveling at the same speed. Alsup at 320. ■

In the case at bar, there was no testimony or evidence that Claimant attempted to slow down before reentering the highway after the car went off onto the shoulder. Instead, the evidence indicates that, while there are tire marks for 77 feet on the west side of Route 45, no skid marks appeared in the gravel shoulder until it had crossed the road and was exiting the highway on the east side and was headed toward the trees and utility pole. Therefore, based on the minimal drop-off, the lack of evidence indicating the drop-off impeded the vehicle from re-entering the road, and the absence of evidence indicating Ms. Margolis attempted to slow her vehicle down before re-entering the roadway, we find that the shoulder drop-off was not a proximate cause of the accident.

Claimant’s engineer testified that raised pavement reflectors were available in 1986 and would have provided sufficient guidance. Mr. White based his opinion on the recommendations included in the Uniform Manual on Traffic Control Devices. However, he conceded that the manual did not consider the reflective dehneators to be a mandatory requirement.

Mr. Michael Hankey, the States highway engineer, testified that the road markings consisting of yellow center lines and a white edge line on each roadway edge were sufficient positive guidance. He also pointed out the fact that guidelines included in the Uniform Manual on Traffic Control Devices are not mandatoiy requirements, but instead are guidelines that are to be employed using the road engineers’ judgment and discretion.

The evidence indicates that the Margolis vehicle had left a slight curve and had come onto a straight level portion of the roadway when the vehicle veered off onto the shoulder. The vehicle had completely exited the curve when the accident occurred. We, therefore, find that the absence of reflectors.as positive guidance was not a proximate cause of the accident.

Also, based on the ball bank test performed by Mr. Gronn, we find that the Respondent was not negligent in regard to any signage or lack of signage at or before the slight left curve on die roadway.

Gordon White, Claimant’s expert, testified that the clear zone should be 20-30 feet from the pavement edge. However, Respondent’s witness, Mike Hankey, testified that the clear zone is the distance from the edge of the adjacent lane where a vehicle is traveling into a roadside or to an area outside of the lane. Investigator Leith testified at the coroner’s inquest that the trees were approximately 23 feet from the center line of the roadway. If you measure the “clear zone” from the edge of the adjacent lane as Mr. Hankey and Mr. Leith indicate, the trees are 23 feet from the center line and outside the 20 feet Gordon White testified to be sufficient for the clear zone.

The Claimant has also failed to prove by a preponderance of the evidence that the Respondent had notice of the alleged dangerous condition. In order for Claimant to recover, it must be proven by a preponderance of the evidence that the State had actual or constructive notice of the dangerous condition that allegedly existed. (Feldman v. State (1984), 36 Ill. Ct. Cl. 158.) The mere fact that a dangerous condition existed is not, by itself, sufficient to constitute an act of negligence on the part of the Respondent.

The Claimant relies on Tom Erlenborn, a resident of Route 45, the road where this accident occurred, to establish notice. In his testimony, Mr. Erlenborn stated that he personally had witnessed about 25 bad accidents in the area. Mr. Erlenborn testified that in the majority of the accidents, the cars missed the curve and went off of the roadway. Additionally, he testified that he had called the Department of Transportation on two occasions as previously outlined. Mr. Erlenborn testified that the accidents he witnessed usually involved automobiles missing the curve. However, the Margolis accident was substantially different. Ms. Margolis had traveled completely through the curve at the time the car left the roadway. This was not a case where the driver missed the curve and went off the road.

Claimant next argues in regard to notice that the Commissioner erroneously excluded police reports concerning other “similar accidents” which occurred in the area. The Claimant, as an offer of proof, attached three police reports pertaining to other accidents that occurred on Route 45. The accidents in the reports either happened at a different location on Route 45 (Julie Taylor— five tenths mile north of Grass Lake Road instead of two tenths mile north), or the reports cited to an independent cause for the accident (Lloyd Tomasiewicz — reaching for a cassette tape; Duane Scaggs — avoiding an oncoming car in his lane.)

The Commissioner did not err in his ruling barring the introduction of the police reports. Evidence of other sufficiently related accidents, although not competent for the purpose of showing independent acts of negligence, may be admissible to show notice to Respondent of a dangerous condition and that the unsafe condition caused other accidents. However, in this case, the accident reports offered by the Claimant fail to establish that a shoulder drop-off, insufficient positive guidance, or insufficient clear zone resulted in, or contributed to, any of those accidents which produced the police reports Claimant sought to introduce. Despite Claimants assertion that the other accidents are similar, the accidents referenced in the police reports occurred at a different location or were caused by other factors. The Claimants offered reports fail to establish a similar dangerous condition in the roadway. Therefore, the Commissioners ruling disallowing the introduction of the police reports was not an abuse of discretion.

The Claimants decedent was speeding considerably over the speed limit on a dark, wet roadway. She was not familiar with the roadway and it was the middle of the night. The Claimants decedent drove off the roadway. The Court, therefore, finds that Claimants decedent was negligent in failing to keep her vehicle on the highway. The cause of this accident and injury was Claimants decedent negligently speeding and driving off the roadway. We find that it was Claimants decedents negligence that caused the injury and was, therefore, the proximate cause of Claimants decedents injuries. Scarzone v. State (1990), 43 Ill. Ct. Cl. 207.

Claimants decedent had a duty to keep her vehicle under control and to drive at speeds reasonable and proper under the conditions that existed. (Harris v. State (1986), 39 Ill. Ct. Cl. 176.) This Court has held that the adoption of the doctrine of comparative negligence in the State of Illinois did not extinguish the requirement of proximate cause. The failure to establish proximate cause of an injury precludes liability, negating the need to compare fault. (Nunley v. Village of Cahokia (1983), 115 Ill. App. 3d 208.) It is clear to the Court that the proximate cause of the accident was the negligent driving of Claimants decedent. She could have avoided the accident by driving within the speed limit and driving on the roadway instead of the shoulder, and by slowing down and stopping prior to trying to drive back on the roadway when she did drive on die shoulder. Calvert v. State (1985), 38 Ill. Ct. Cl. 104.

While the death of Michelle Margolis was tragic and unnecessary, her speeding and careless driving were the proximate cause of this fatal accident. The Respondent was not negligent and Respondents actions or lack of actions were not the proximate cause of this accident. The Claimants have failed to meet their burden of proof, as Claimants have failed to prove by a preponderance of the evidence that Respondent was negligent, that Respondents actions or inactions were a proximate cause of the injuries, and that the Respondent had actual or constructive notice of this specific alleged dangerous condition.

For the foregoing reasons, it is the order of the Court that Claimants claim be, and hereby is, denied.


author: JANN, J.

text:
    (No. 88-CC-0108
    Stanley D. Parr and Gracie Parr d/b/a Redwood Motor Inn, Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 12, 1999.

    Hall Law Firm (Charles C. Hall, of counsel), for Claimants.
    Jim Ryan, Attorney General (Terence J. Corrigan, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

This matter was heard on the Claimants’ amended count II and amended count III. An order was entered on March 25, 1993, granting Respondent’s motion for summary judgment on the original counts I through III. On rehearing the Court allowed the Claimants to file amended count II and amended count III. Amended count II alleges an interference with the Claimants’ business expectancy and amended count III alleges the disturbance of the Claimants’ right to the use of their land and is based on a theory of nuisance and resulting property damage.

On August 10, 1988, a writ of injunction was issued in the Circuit Court of Vermilion County, Danville, Illinois, in Parr v. Neal, No. 86-CH-56, enjoining the Department of Corrections from firing weapons upon or at the Danville Correctional Center Weapons Firing Range at its present location, adjacent to Claimants’ property. The injunction was affirmed by the Fourth District Appellate Court.

The facts of the case were presented through transcripts of testimony from the hearing on injunctive relief in the Circuit Court of Vermilion County, which transcripts were introduced as Claimants’ exhibit nos. 10, 11 and 12; testimony presented at the Court of Claims hearing; and exhibits filed with the Court.

Evidence Presented at Hearing

In April of 1986, the Claimants owned and managed the Redwood Motor Inn located at 411 Lynch Drive, Danville, Illinois, having owned the motel since July of 1978. At the time in question, the motel occupied over 40 acres, and 59 buildings were located on the premises. There were 94 rooms available for rent, a storage bam, a metal shed, a swimming pool, a covered swimming pool, a restaurant/lounge building, the motel office and a gas station building. The motel offered A-framed chalets, regular rooms, and deluxe executive rooms.

In the early 1980s, the Danville Correctional Center, an institution of the Illinois Department of Corrections, was built north of the Redwood Inn. Located between the correctional center and the Redwood Inn property were 2214 acres of farm land, also owned by the Claimants. The firing range at the Danville Correctional Center was located on the south side of its property next to the farm land owned by the Claimants. The firing range was approximately 900 feet from the deluxe executive rooms which were located at the rear of the motel property. In addition, the sewer plant and wells for the motel were located on the farm land between the motel and the firing range.

In April of 1986, the Department of Corrections began using the firing range, and on several occasions used it for firing throughout the night time hours. When the firing at the range started, the Redwood Inn lost business on a daily basis. On at least one occasion, Mr. Parr remained on the premises overnight and heard firing in the middle of the night that was very loud and which woke him out of a sound sleep.

Mr. Parr testified that he had previously met Warden Michael Neal of the Danville Correctional Center during tire building of the correctional center but that when he attempted to contact the Warden to complain of the noise, his telephone calls were not returned.

On at least one occasion, when the Redwood Inns maintenance man went out to service the sewer plant, the sheriff came by to check his identity. The Claimants assumed that the prison officials had called the sheriff, but they did not have any evidence that this was so. However, the Claimants were told by the sheriff not to go on the farm land without contacting the prison and the Claimants felt constrained in the use of their land by this.

In November and December of 1986, Mr. Parr found projectiles some 50 feet into his land. In March of 1987, he found a shell casing some 75 to 100 feet into his land, and on June 24, 1987, he found a projectile approximately 25 feet into his land.

Mr. Parr testified that, prior to the opening of the firing range, they had for several years done business on a regular basis with young, professional people coming from abroad to do programming work at the TeePak plant which was located in Danville, and that the Redwood Inn had often rented ten to 12 rooms for periods of two to three months each to TeePak people. After the firing started, the TeePak business ceased entirely and the motel did not get their business back.

Mr. Parr offered exhibits and testimony concerning the occupancy figures for the motel and the losses which occurred after April of 1986. These matters will be addressed in greater detail later in our opinion.

The transcript of the testimony of Robert Lucas, an expert for the Claimants who had testified in the Vermilion County case, and whose background was in law enforcement and security design and training, including firing ranges, was introduced. Mr. Lucas went into great detail concerning the layout and the procedures in place for the firing range, including the berm whose purpose was to contain the rounds fired at the range. He was greatly concerned about the dangers posed by the use of rifles at the range. The type of rifle used at the range had a “killing range” of nearly one mile, well within the area occupied by the Redwood Inn. Also, the dangers were compounded by the presence of a tower at the range from which the employees practiced firing. The tower was nearly as high as the berm, and an unintended firing from the tower had the potential for great danger. The projectiles found by Mr. Parr matched those regularly fired at the range and Mr. Lucas considered this as evidence that the Department was not successful in keeping the projectiles fired at the range within the confines of the range.

Count II

Interference with Claimants’ Business Expectancy

Amended count II rests on a claim of interference with business expectancy. The elements of the tort of interference with a business relationship that the Claimants must prove are:

(a) The existence of a valid business relationship or expectancy;

(b) Knowledge of the relationship or expectancy on the part of the interferer;

(c) An intentional interference inducing or causing a breach or termination of the relationship or expectancy;

(d) Resultant damage to the party whose relationship or expectancy has been disrupted.

Fryman v. Board of Trustees (1989), 42 Ill. Ct. Cl. 132, 166, further held that Illinois law requires the interference to be “intentional, unjustified, and malicious.” In order to prevail, the Claimants must prove each element of the tort by a preponderance of the evidence. In this case, the Claimants did prove that they had a valid business relationship or expectancy with both regular, repeat clients of the motel and people who might utilize their services in the future, and they proved that the warden of the correctional center was aware of their business in that he had met with Mr. Parr during the construction of the institution and discussed being a “good neighbor.” In addition, the Claimants proved that they had suffered damages as a result of the interference. However, Claimants presented no evidence that the interference was intentional, unjustified, and malicious.

This case is similar to that of Parkway Bank and Trust Co. v. City of Darien (1976), 43 Ill. App. 3d 400, 357 N.E.2d 211, 2 Ill. Dec. 234, in which the plaintiffs sought damages from the rezoning of their land. The Court in Parkway stated that interference with a business relationship is a purposely caused tort and found that there were no facts stated that would suggest that the Defendants had as their purpose the interference with plaintiff’s real estate business. (43 Ill. App. 3d at 403, 404, 357 N.E.2d at 214, 215, 2 Ill. Dec. at 237, 238.) Here, there was no evidence presented that the purpose of the Department of Corrections in operating the firing range was to interfere with the Claimants’ business. In fact, the evidence was clear that the purpose of the operation of the firing range was to qualify and maintain the qualifications of the employees of the Department of Corrections for their firearms ratings and training. There was nothing to show any intention on the part of the Respondent to do any damage to the Claimants’ business.

Count III

Nuisance

Amended count III is based upon a theory of nuisance in the disturbance of the Claimants’ rights to the use of their land. The Circuit Court of Vermilion County, Danville, Illinois, in Parr v. Neal, No. 86-CH-56, found that the range was a danger to personal safety and a private nuisance. These findings were upheld by the Fourth District Appellate Court. Decisions of the Circuit Court are res judicate as to the same issues in the Court of Claims. McNeil v. State (1995), 47 Ill. Ct. Cl. 432; and Lehman v. State (1991), 44 Ill. Ct. Cl. 178.

In addition, the evidence presented is sufficient to uphold the Claimants’ burden of proof. This case is similar to that of Schatz v. Abbott Laboratories (1987), 51 Ill. 2d 143, 281 N.E.2d 323. In Schatz, the Illinois Supreme Court upheld the award of damages to a movie theater business which were suffered as a result of noxious odors emitted from the Defendant’s manufacturing plant in North Chicago. Here, the actions of the Respondent in placing the firing range in the location in question created a nuisance, damaged Claimants’ business, and caused a loss of enjoyment in the use of their land. The sound of the weapons firing at various hours of the day and night disturbed people staying at the motel and caused a decrease in business, especially the repeat business from TeePak and others which the motel had formerly enjoyed. In addition, there was danger of injury from the firing range, both to people at the motel and on the agricultural land located north of the motel.

Robert Lucas, the Claimants’ expert witness who had prepared designs for the safe layout of firing ranges, identified the projectiles found by Mr. Parr as being of the type fired from the range and it was his opinion that these projectiles had been fired from the range. Lucas was concerned because the rifles fired at the range had a killing range of nearly one mile, well within the distance from the range to both the agricultural land and the motel property. The danger of unintentional fire was increased by the location of the tower which was used to simulate firing from a guard tower. Although the safety procedures and the overall layout of the range were within general safety parameters, the location of the range so close to an occupied area made it a danger in Lucas’ opinion.

This danger, along with the excessive noise from the range, constitutes a nuisance and the Claimants have upheld their burden of proof under the tort of nuisance.

Damages

In determining damages for nuisance, there are two types of nuisances: temporary or permanent. A permanent nuisance is one characterized as continuing indefinitely and a temporary nuisance is one which is occasional, intermittent, or recurrent and is remediable, removable or abatable. (Tamalunis v. City of Georgetown (1989), 185 Ill. App. 3d 173, 183, 184, 542 N.E.2d 402, 409, 134 Ill. Dec. 223, 230). In Tamalunis the Fourth District Appellate Court held that, “In addition, a nuisance which is caused by the negligent construction of a legal enterprise or the negligent manner of its operation is generally considered temporary (58 Amjur.2d Nuisances sec. 118 (1971).)” 185 Ill. App. 3d at 184, 542 N.E.2d at 409, 410, 134 Ill. Dec. at 230, 231.

The measure of damages for a temporary nuisance is the personal inconvenience, annoyance, and discomfort suffered on account of the nuisance (Tamalunis, 185 Ill. App. 3d, at 184, 542 N.E.2d at 410, 134 Ill. Dec. at 231), and, where damages flow from a loss of business, the loss of profits suffered because of the nuisance. Schatz v. Abbott Laboratories (1972), 51 Ill. 2d at 148, 281 N.E.2d at 326.

Claimants offered evidence concerning the loss of revenue suffered by them. This evidence was in the form of testimony by Mr. Parr concerning his day-to-day observations of regular customers not returning, including the TeePak people, his log of month-to-month room sales from 1983 through 1989 (Claimants’ exhibit no. 9), and his testimony that, between 1984 and 1988, the number of motels in the Danville area remained the same. Also, Claimants presented the testimony of Joel David Martin, a certified public accountant with Fox & Crowder, Ltd., a Danville accounting firm. Mr. Martin testified as an expert witness concerning his determination of the lost net profits for the Redwood Inn for 1987 and 1988.

In making his determination, Mr. Martin relied upon the City of Danville hotelAnotel tax revenues from 1984 to 1989, the room sales records of the Redwood Inn for that same period, the 1987 and 1988 tax returns for the Redwood Inn, information concerning the number of additional rooms sold in the area in 1987 because of the TeePak fire (which rooms would have all been rented by the Redwood Inn because of its arrangement with TeePak, if the TeePak people had not gone elsewhere because of the noise from the firing range), calculations of the Redwood Inn’s net profit per room sold for the two years in question, and his projection of room sales for the Redwood Inn based upon the percentage increase in the City of Danville hotel/motel tax revenues.

Based upon his calculations, to a reasonable degree of accounting certainty, Mr. Martin estimated that the Claimants’ lost income for 1987 was $66,518 and for 1988, $65,143.

Respondent introduced into evidence the Redwood Inn’s occupancy rates and room revenues for 1990 to 1995 (Respondent’s exhibit no. 1) but this information is not relevant since new motels were built at Danville in 1989 and 1990 thus rendering these figures not suitable for comparison purposes.

In addition, the Claimants sought damages for loss to the 2216 acres of agricultural land located between the firing range and the motel property. Claimants called an expert witness, Kenneth W. Cunningham, a certified general real estate appraiser for the states of Illinois and Indiana. Mr. Cunningham testified that, in his opinion, the Claimants suffered a loss of $16,000 for the two years in question because they lost the opportunity during that period to sell the land for its highest and best use. Mr. Cunningham did not take into account the fact that the land in question was rented for agricultural purposes during 1987 and 1988 for $1,500 per year, and he had made no calculations as to any loss of profits from a recreational vehicle park that Mr. Parr had testified they were thinking about establishing on this land before the firing began at the range.

Since this is a temporary nuisance which has been enjoined, the Claimants’ measure of damages for the 22Mj acres in question is limited to the loss of use and income for the period in question. Mr. Cunningham’s testimony as to his opinion as to loss of value during the period 1987-1988 is based on his estimation of loss in value for the property during that time, which is not one of the measures of damages for a temporary nuisance. The purported loss in value from 1989 on is not relevant. Claimants have failed to prove any loss for the 22]A acres as there was no evidence that the actual income to the land, the $1,500 per year from renting it out for farming, was any less during the period in question than it had been before. The Claimants’ plans to possibly develop the land for an RV park appears to have been only a thought on the Claimants’ part and not any type of developed project that was thwarted by the Respondent’s actions. No evidence was offered by the Claimants as to expenses, projected profits, and losses for the project, and any loss that might be claimed from this project would be pure speculation.

The Claimants did apparently suffer some inconvenience in not being able to tend to their sewer plant and well which were located on this land without letting the prison know that workmen would be out there, but the evidence does not contain any specificity concerning how prevalent this inconvenience was, what steps they had to take to cope with it, and how they were affected by this.

In determining the measure of Claimants’ damages, we find the total damages are $131,661. The firing range was in operation from April of 1986 to August of 1988, a period of slightly more than two years. The figures presented by the Claimants for 1987 and 1988 lost profits appear to establish their loss within the “fair degree of probability” required by Schatz, 51 111. 2d at. 148, 149, 281 N.E.2d at 326.

As the Claimants’ damages are limited to $100,000 by the provisions of section 8(d) of the Court of Claims Act (705 ILCS 505/8(d)), under which jurisdiction the complaint was brought, and the proven damages are in excess of that amount, it is hereby ordered that $100,000 be awarded to the Claimants in full satisfaction of their claims.

This cause is dismissed.