author: Sommer, C.J.

text:
    (No. 86-CC-1455
    David Suhrbier, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 27, 1994.

    Isadore M. Bernstein, Ltd., for Claimant.
    Roland W. Burris, Attorney General (Colleen McCloskey, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

The Claimant seeks $75,000 in damages from the State for injuries he sustained when he was struck by a motor vehicle.

On September 3, 1985, Claimant alleges that Respondent was the owner of a food service truck and was negligent in double-parking its van in a no-parking zone, thus causing Claimant’s view to be obstructed, which resulted in his inability to see an approaching vehicle which struck him while on his bicycle. Claimant further alleges that the aforesaid negligent act of the Respondent was the direct and proximate cause of his personal injuries and pecuniary damage.

Claimant filed a lawsuit in the circuit court of Cook County against the driver of the car that struck him and it is entitled: David Suhrbier v. Mathew Zell, No. 85 L 25030. Claimant was awarded a judgment in his favor for $7,500. Claimant did not appear at the trial of this claim because he was serving in the Army. At his evidence deposition of June 11, 1991, Claimant stated that he had received active duty orders for an army internal residency program at Brook Army Medical Center in Fort San Antonio, Texas. Claimants counsel stated that Claimant was in the Army, somewhere in the East. In pursuance to Illinois Supreme Court Rule 212(b)(2), due to his said absence from the county, the transcript of Claimants evidence deposition, together with the exhibits therein attached, was introduced and admitted into evidence.

The evidence presented consists of the report of the proceedings, filed May 15, 1993. The evidence deposition transcript of Claimant held on June 11, 1991, department report, deposition exhibits 1, 2, 3, 4, being medical records and briefs of both parties.

In his evidence deposition, Claimant stated that he was riding a bicycle to class at the University of Illinois Medical School when he was struck by an automobile, causing him to suffer multiple injuries. He was taken by ambulance to the Carle Foundation Hospital in Urbana, Illinois. There he received medical treatment including x-rays of the knee, arm, shoulder, head and neck. A shoulder harness was placed on his upper right arm, a cast was placed on his forearm and his upper right arm, and a sling placed on his right arm, and he was hospitalized for two days.

Claimant testified that he was physically unable to maintain a full curriculum as prior to his accident and that it took him two years to complete his studies for his masters degree instead of one. He also stated that he was off work at the Ground Round Restaurant where he was employed at the time of the accident for about one year, and that his medical bills were approximately $2,300.

Claimants testimony disclosed that the accident occurred on Mathews Street, a one-way northbound street in Urbana. There are bicycle paths on both sides; the west side path only runs south. At approximately halfway down Mathews Street, this bicycle path ends. At this point, a diagonal bicycle path marked on the pavement connects the bicycle paths from the west side to the east side of Mathews Street, and when it reaches the east side of the street it resumes its northbound direction. The entire length of the crossing is marked with painted lines and at no time was he outside those lines before being hit by the vehicle travelling on Mathews Street. Upon reaching this crossing path and before entering on to same, he saw a white van of the State double-parked on the west side of Mathews Street in the lane of ongoing northbound traffic, which obscured his vision. Claimant got off his bicycle to look around the parked van, to observe any traffic that may have been approaching the bicycle path. Seeing none, he mounted his bicycle and entered the bicycle path to cross Mathews Street. Halfway through the crossing path, he was hit by a vehicle.

The Claimant must prove by a preponderance of the evidence that the State was negligent in the double-parking of its van and that such negligence was the proximate cause of the accident in order to prevail on his claim. The obstruction of Claimants vision to observe traffic before attempting to cross Mathews Street was the cause of the resulting accident. Certainly, unimpeded vision of oncoming traffic would have permitted Claimant to determine if it would be safe to cross the busy thoroughfare on a bicycle without endangering his personal safety. Further, it must be concluded that double-parking of the States van is prima facie negligence in Illinois. French v. City (1976), 65 Ill. 2d 74; Dini v. Naiditch (1960), 20 Ill. 2d 406.

Proximate cause has been defined as any cause which, in a natural or probable sequence, produced the injury complained of. It need not be the only cause; it is sufficient if it concurs with some other cause acting at the same time which, in combination with it, causes the injury. The position of the Respondent that the independent act of a third person, namely the driver of the car that hit the Claimant, inflicted the injury, is not persuasive. Authorities cited by the Respondent are not on point. The case of Sheehan v. Janesville, cited by Respondent, involved the plaintiff sustaining injuries when he swerved his car to avoid a collision and crashed into a truck parked in a no-parking zone. The Court therein held that such parking in a no-parking zone would not have been reasonably foreseeable. In the case at bar, the States double parking in the path of moving traffic, obscuring the vision of persons wishing to cross is foreseeable.

Claimant, a physician, described the accident in his evidence deposition, and he gave a detailed description of his multiple injuries. The negligent act of the Respondent was the proximate cause of the accident. Invoices submitted as exhibits indicate the injuries and the treatment of same support the nature and extent of the same.

Claimant suffered injuries, pain and suffering, his medical expenses, loss of time, additional cost of college attendance and loss of wages, totalling $25,000. However, pursuant to section 790.60 of the Illinois Court of Claims Regulations (74 Ill. Adm. Code 790.60), pertaining to “Exhaustion of Remedies,” the amount of $7,500, being the amount of the judgment awarded to Claimant in the circuit court case against the driver of the vehicle that struck him, is herewith deducted, for a net award of the claim herein, to $17,500.

Wherefore, it is hereby ordered that the Claimant be awarded $17,500 in complete and full satisfaction of the instant claim.


source: Caselaw Access Project

author: Patchett, J.

license: Public Domain

text:
    (No. 86-CC-2302
    Walter Stewart, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 23, 1994.

    Harris & Berlin, for Claimant.
    Roland W. Burris, Attorney General (Sandra Castillo, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

Claimant, Walter Stewart, is an inmate in custody of the Illinois Department of Corrections. Mr. Stewart has pled guilty to a charge of murder and had been sentenced to death.

On March 2, 1984, Mr. Stewart was incarcerated at Menard Correctional Center. At about 1:30 p.m., he was in the recreation yard with two other death-row inmates. Mr. Stewart was attacked. During the attack, he blacked out. When he regained consciousness, he was inside a building, lying on the floor with correctional staff and medical staff around him. He does not remember being stabbed.

He was transported to the Chester Memorial emergency room with a neck wound to suture. He was returned to Menard within two hours. Mr. Stewart was in the prison hospital from March 2, 1984, to March 6, 1984. He was then returned to death row. He was provided with bandages and gauze to change the dressing. After three weeks, his stitches were removed.

The evidence showed that the Claimant sustained a superficial wound that went through the skin. The wound healed well. It did not involve any major muscle structure, and the only physical deficit remaining from the injury is a scar.

Mr. Stewart has a well-healed scar on the left side of his neck. The scar is V-shaped with the apices of the V projecting anteriorly. The upper limb measures approximately 2Vz inches, while the lower limb measures approximately 2 inches. The scar involves the skin and subcutaneous tissue. The scar is supple; it can slide over the deeper structures of the neck, i.e., it is not attached to the deep structures. There is no evidence of keloid formation.

This Claimant was attacked by a fellow inmate. The State is not normally held liable for intentional torts committed by its inmates. (Long v. State (1986), 40 Ill. Ct. Cl. 39.) However, the State consistently refused to answer discovery in this case. This case was originally filed in 1986. On April 20, 1990, this court entered an order which stated, in relevant part, as follows:

“[w]ith respect to claimant's renewed motion to require compliance with discovery requests and orders and for sanctions, respondent is ordered to comply with or object to all outstanding discovery requests within forty-five (45) days of the date of this order. This is the third such order this Court has entered on this subject. If respondent does not comply with this order, the Court will consider claimant’s request for a default judgment.”

Despite the fact that this Court entered such an order, the State did not respond. Therefore, on December 7, 1990, this Court entered an order granting judgment on the issue of liability to the Claimant as a sanction for consistent failure to respond to the discovery requests.

Because of the order of December 7, 1990, the trial held before a commissioner of this Court was only on the issue of damages. Although Mr. Stewart claimed substantial physical and emotional damages as a result of the attack, he has failed to prove it. There was no major muscle or nerve damage. There is nothing in the record to support Mr. Stewarts claim for substantial damages. As this court stated in In re Application of Lopez (1987), 39 Ill. Ct. Cl. 315: “[Djamages may not be awarded on the basis of conjecture or speculation.”

However, Mr. Stewarts testimony clearly showed that he did have pain and suffering and permanent scarring. However, since Mr. Stewart spent only two hours at the emergency room and his sutures were removed in three weeks, we can conclude that the pain and suffering was not extreme.

For the reasons stated above, we award the Claimant two thousand five hundred dollars ($2,500).


author: Mitchell, J.

text:
    (No. 86-CC-3287
    Ann Fejes, Executrix of the Estate of Joseph M. Fejes, Deceased, Claimant, v. The State of Illinois, Respondent.

      Order filed February 2, 1990.

      Opinion filed May 13, 1994.

    Zimmerly, Gadau, Selin & Otto (John Otto, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Karen McNaught, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Mitchell, J.

The claim for damages in excess of $100,000 was brought by Claimant, Ann Fejes, executrix of the estate of Joseph M. Fejes, alleging that Respondent was negligent in causing the death of Joseph Fejes. The claim arises out of an accident involving a single motor vehicle driven by Mr. Fejes striking a bridge abutment on U.S. Route 45, approximately three-tenths of a mile south of Champaign County Road 2300N on June 27, 1984.

In the complaint, Claimant states that “Respondent owed Plaintiff a duty to exercise reasonable care in maintaining, repairing and improvement of highways within the State.” (Complaint, par. 3.) Claimant alleges that Respondent breached its duty by committing one or more of the following negligent acts or omissions:

1. Negligently failed to place a guard rail around a certain bridge abutment on U.S. Route 45 in Champaign County, Illinois between the municipalities of Urbana and Rantoul.

2. Failed to provide or post adequate warning of the presence of said unguarded bridge abutment to the users of said highway at the above place.

The complaint includes a bill of particulars in paragraph 13, detailing damages as $193,440 for loss of income, $150,000 for loss in value of business and $4,289.90 for funeral expenses, for a total of $347,729.90.

A hearing was conducted on December 23, 1991. After the close of Claimants case in chief, Respondent moved for a directed verdict which was taken under advisement and Respondent proceeded with its defense without waiving its motion.

Claimant's Case In Chief

In the presentation of her case in chief, Claimant called four witnesses: Douglas A. Reifsteck, an occurrence witness; Terry A. Klutts, the State trooper responsible for investigating the accident; Jongin Cragg, a former real estate broker; and Matt Fejes, the son of decedent. Ann Fejes testified as a rebuttal witness. The testimony of Charles D. Sanders, Respondent’s witness, is used by Claimant in her brief to support her case.

Claimant presented 27 exhibits of which 25 were offered into and admitted into the record. Claimants exhibits nos. 1 through 23 are photographs depicting various views of the northbound and southbound lanes of U.S. Route 45 at or near the subject bridge abutment. Claimants Exhibit No. 24 is the Illinois State Police Traffic Accident Report No. 6877834. Claimants Exhibit No. 25 is an October 4, 1984 letter signed by Cragg confirming that Matt Fejes and Joe Fejes received and turned down an offer of $750,000 to purchase the building and business of the Town & Country Steak House. Claimants exhibits nos. 26 and 27 were used to refresh the recollection of Matt Fejes, but were not offered into or made a part of this record. Exhibits nos. 26 and 27 are attached to the transcript.

Claimant presented a certified copy of the Life Tables, dated 1978 and published by the U.S. Department of Health and Human Services. The parties stipulated that the 1978 table indicated a life expectancy of an average white male of the age of Mr. Fejes at his death was 11.6 years. The Commissioner took judicial notice of the stipulation and information, and the tables were not made part of the record.

The unrebutted testimony presented in Claimants case in chief is as follows:

Mr. Fejes was traveling to Rantoul by himself on June 27, 1984, in his daughters car, a 1967 Volvo. Mr. Fejes had trouble shifting the car because it was a stick shift and he had never driven it on the highway.

Douglas A. Reifsteck, a farmer from Tolono, witnessed the accident on U.S. Route 45 that resulted in the death of Mr. Fejes at about 10:50 a.m. on June 27, 1984. Mr. Reifsteck was hauling grain with a tractor-trailer from an elevator in Thomasboro, a small town between Urbana and Rantoul. Mr. Reifsteck first observed Mr. Fejes turning around in Thomasboro and heading south, the direction Mr. Reifsteck was traveling. U.S. Route 45, where the accident occurred, is a four-lane divided highway, two lanes being for southbound traffic.

As Mr. Reifsteck picked up speed going south out of Thomasboro, Mr. Fejes passed him, going about 45 to 50 miles an hour. Mr. Fejes passed Mr. Reifsteck about half a mile before the accident occurred. Mr. Reifsteck watched as the car Mr. Fejes was driving veered into the passing lane, and then moved off to the right and hit a concrete bridge abutment, all in about two seconds time. Mr. Reifsteck stopped his truck, put on his four-way flashing lights and called for police and ambulance on his citizens band radio. The abutment hit by Mr. Fejes is identified as survey station 2573 on U.S. Route 45 between Thomasboro and Urbana.

On cross-examination, Mr. Reifsteck stated that he did not see any brake lights and did not see the vehicle skid. He did not see any movement back to the left by the vehicle to try to get it back on the road.

State Police trooper Terry Klutts was one of the police officers who responded to the call. Trooper Klutts observed that Mr. Fejes had collided with the bridge abutment. He determined that Mr. Fejes was not breathing and had no pulse, and he administered CPR until the ambulance came. The coroner’s physician determined that Mr. Fejes died within seconds of the accident.

After Mr. Fejes was taken away by ambulance, trooper Klutts took measurements and interviewed witnesses. Trooper Klutts determined that Mr. Fejes had left the road 173 feet before he hit the abutment. Klutts determined that it would take a vehicle traveling 60 miles an hour between two and three seconds to travel 173 feet.

According to trooper Klutts’ measurements, the southbound lane of the road at the bridge where Mr. Fejes was killed was 25 feet 10 inches wide, wall to wall. The pavement of the southbound lane was 22 feet wide and the bridge wall was one foot, ten inches from the edge of the pavement. On cross-examination, Klutts reviewed his report and stated that the roadway at the bridge was 25 feet 10 inches from curb to curb, therefore the bridge walls would then be a total of 29 feet 6 inches apart. The bridge abutment itself was 3 feet 10 inches high and 11 inches wide. A rain gutter, four inches deep, extends along the side of the roadway north from the bridge, about 130 feet 9 inches.

There were guardrails at three of the four approaches to the bridge, but none at the corner of the bridge abutment that Mr. Fejes hit.

There was a driveway or an entrance to a field on the west side of U.S. Route 45 and approximately 10 feet to the north of the bridge. The field had no fences, but was open, without any demarcation lines from the ditch that ran under the bridge all the way north to County Road 2300N. County Road 2300N is about three-tenths of a mile north of the accident scene.

In the beginning of 1984, while Mr. Fejes was still alive, Jongin Cragg, a real estate broker employed by Norrick and Morrow, conveyed an offer to purchase the Town & Country restaurant for $750,000 from Yen Ching, Inc. The offer to purchase was turned down because Mr. Fejes thought the business was worth more. After the death of Mr. Fejes the real estate was sold for $600,000 on March 1, 1985, to the same people who had made the previous offer. Although Claimant asserts that both offers were for the business and real estate, Cragg testified on cross-examination that at the time of the sale the business was closed. She then stated that the closure would not affect the purchase price because the buyers were buying “real estate not business.”

Matt Fejes, son of the decedent, testified that the Town & Country restaurant was owned by J.M.J. Associates, which was a partnership consisting of Mr. Fejes, Matt, and his brother-in-law, Jim Splitic. Mr. Fejes had put $290,000 into the business; Jim Splitic had put $85,000 into the business and Matt Fejes had put $8,000 into the business. He also stated that basically the three were one-third partners.

Matt Fejes stated that at the time of Mr. Fejes’ death, there was a business debt of about one million dollars. In any sale, the proceeds were to be divided up with Mr. Fejes getting back his $290,000, Mr. Splitic getting back his $85,000, and Matt Fejes getting back his $8,000. If there was a reduction in sales proceeds, the biggest loser was Mr. Fejes, who had put $290,000 into the business.

Mr. Fejes took a salary of $15,000 a year out of the business, and in addition the business paid for an automobile, entertainment expenses and food for Mr. Fejes, so that the total value of the compensation he took out of the business was from $25,000 to $30,000 a year. On cross-examination, Matt Fejes stated that the salary paid to Mr. Fejes was for Mr. Fejes and his wife, the Claimant, who worked as hostess.

During the time that Mr. Fejes owned and operated the restaurant, he arranged with a State agency to provide jobs for mentally-retarded children, doing janitorial work in the restaurant. From 15 to 20 mentally-retarded children were trained at the restaurant by the Fejes family.

On cross-examination, Matt Fejes acknowledged that Mr. Fejes had been hospitalized recently and had a lung biopsy performed. He was diagnosed with Wegners granul omatosis, was on medication, had ulcer problems and high blood pressure.

The life expectancy for white males 69 years of age, Mr. Fejes’ age, was 11.6 years pursuant to Life Tables dated 1978.

Respondent’s Motion for Directed Verdict

The Respondent moved for a directed verdict at the close of Claimant’s case in chief. The Commissioner ruled that the motion would be taken under advisement and that Respondent could present its defense without waiving the motion.

The Court in Secor v. State (1991), 44 Ill. Ct. Cl. 215, ruled:

“When considering a motion for directed verdict, the evidence presented in claimant’s case must be viewed in its aspect most favorable to the opponent of the motion. The motion should be granted when all of the evidence, viewed most favorably to claimant, totally fails to establish one or more essential elements of the cause of action. [Citations omitted.]
The claimant must prove the Respondent had a duty to claimant, breached its duty and the breach proximately caused his injury.” Secor at 217.

In deciding a motion for directed verdict, the Court must look solely to the evidence presented by Claimant in his case in chief. Stanley v. Board of Trustees of the University of Illinois (1985), 39 Ill. Ct. Cl. 107.

The record shows that the Commissioner, upon an inquiry by Claimant’s counsel prior to the presentation of Claimant’s case in chief, stated that the departmental report was made a part of the record and would be considered as evidence in the case. There was no objection made by Respondent to this ruling. Under the circumstances presented here, the Court will allow the evidence included in a departmental report to be utilized when deciding on a motion for directed verdict.

On the element of Respondents duty to the Claimant, the Claimant did not present any testimony or other evidence that the Respondent is “responsible” for the maintenance, repair and improvement of U.S. Route 45 in Champaign County, as alleged in paragraph 2 of the complaint. A liberal reading of paragraphs 2 and 3 of the complaint together could be interpreted to form the basis of an allegation that Respondent owed Claimant a “duty” to exercise reasonable care in maintaining, repairing and improvement of U.S. Route 45 at or near the scene of the accident.

This liberal interpretation of the allegations is supported by Claimants argument I in its brief, that, “The State of Illinois Was Negligent In Not Providing A Guardrail At Survey Station 2573, The Bridge Abutment Hit By Mr. Fejes.”

There is no doubt Claimant presumed that Respondent was responsible for, and had a duty to exercise reasonable care in, maintaining, repairing and improvement of U.S. Route 45. None of the witnesses testified to any facts that, if proven true, would establish that Respondent had a duty, or even a responsibility, for maintaining, repairing and improvement of U.S. Route 45. No exhibit offered by the Claimant demonstrates that the Respondent had any duty or responsibility in regards to U.S. Route 45 and the respective bridge abutment. Although the evidence viewed most favorably to Claimant as presented in Claimants case in chief fails to establish the Respondent had any duty, there is sufficient evidence in Respondents departmental report that indicates Respondent had a duty, or responsibility, for maintenance and repair of U.S. Route 45 and the abutment. Viewing the material included in the departmental report in its aspect most favorable to the Claimant, the Court finds that Claimant does not fail to establish the element of duty.

In relation to the second element that the Respondent breached its duty, Claimant has presented evidence of a motor vehicle striking a bridge abutment along U.S. Route 45. Claimant asserts that the abutment was approximately one foot and ten inches from the edge of the roadway pavement.

No evidence was presented to indicate that Respondent should or could place a guardrail at the abutment. Claimant did not present any evidence, nor does she cite any legal authority or acceptable safety standards, that would specify that a guardrail should be placed at the abutment.

The nexus of the first prong of Claimants argument is that Respondent should have designed and constructed the bridge abutment, and the highway, to include a guardrail at the place of the accident. The second prong of Claimants argument is that Respondent failed to provide adequate warning of the presence of an unguarded bridge abutment to the users of the highway.

It is clear that the basis of the first prong of Claimants claim is not that Respondent failed to maintain or repair the bridge abutment. Claimant makes no allegation the condition of the unprotected abutment caused the injury, but instead alleges that the location of the unprotected abutment caused the injury. It is not alleged that a defect existed in the condition of the abutment that proper maintenance or repair could have corrected.

It is not clear what is meant by Claimants allegation that Respondent breached its duty to exercise reasonable care in the “improvement” of the highway, but it is reasonable to conclude Claimant is asserting that at a point in time subsequent to the original design and construction of the abutment and highway a guardrail should have been installed. No evidence was presented in Claimants case in chief, or in the departmental report, that would show that acceptable safety standards would have required a guardrail, or that subsequent to the original construction a guardrail would have been required. The only relevant evidence on the element of breach of duty is that: (a) the abutment on the east side of the approach to bridge has a guardrail, but the abutment on the west side of the bridge does not have a guardrail; and (b) there is a field entrance (or driveway) approximately 10 feet north of the abutment. Claimant does not cite any authority which stands for the propositions that an unprotected abutment approximately one foot ten inches from an edge of the pavement of a highway is as a matter of law a breach of a duty on the part of the entity responsible for the condition, or that it creates a per se hazardous condition.

Claimants theory as to the breach of duty is essentially as follows: guardrails are attached to the bridge abutments on the east and west side of the northbound lane of U.S. Route 45. A guardrail is attached to the bridge abutment on the east side of the southbound lane of U.S. Route 45 but there is no guardrail attached to the abutment on the west side of the southbound lane. Claimant therefore maintains that the existence of guardrails at three of the four bridge abutments demonstrates that Respondent was aware of the hazard of unguarded abutments at the location. Claimant also presented evidence of a driveway or field entrance immediately (approximately 10 feet) north of the abutment and in the location where she asserts that Respondent should place a guardrail. Claimant did not present any evidence as to ownership of the field entrance or the reasons for its existence or whether it is legally entitled to be located at that place.

The allegation that Respondent was negligent because it failed to exercise reasonable care in the “improvement” of U.S. Route 45 may be construed liberally to mean that Respondent should have constructed a guardrail as an improvement of the highway and abutment. The Court may find that the evidence, i.e., an absence of a guardrail, in Claimants case is sufficient to withstand the motion for directed verdict. The Court has previously noted that the duty of a public authority may be breached when it does not erect railing or barriers along the highway at places where they are necessary to make the way safe and convenient for travelers. Among the material facts to be considered are the character and amount of travel, the character of the road itself, its width and general construction, the character and extent of the slope or descent of the bank, the direction of the road at the place, the length of the portion claimed to require a railing and whether the danger is concealed. Nass v. State (1979), 32 Ill. Ct. Cl. 487, 494.

In considering the material facts as stated in Nass, specifically the width and character of the highway, and because the Claimants evidence tends to show the abutment to be within two feet of the pavement, the Court finds Claimants evidence does not fail to establish the element of breach of duty. Nass at 487.

The Court finds the evidence on the element of causation is sufficient to withstand the motion. The report of coroners physician states the condition which gave rise to immediate cause of death and it shows that the striking of the abutment was a cause.

On the element of damages, there is evidence that the decedent was earning a salary, therefore the evidence is sufficient on the element of injury or damage. Based upon the foregoing, the Court denies Respondents motion for a directed verdict.

Respondents Case in Chief

The Respondent presented Charles D. Sanders, a policy development engineer in the Bureau of Design, Department of Transportation, responsible for the preparation of policies, including the use of guardrails and other safety policies on interstate highways. The Commissioner found that Mr. Sanders is an expert in policy design.

Mr. Sanders testified that an effective guardrail could not have been designed at the location of the accident. The 10 feet of space between the abutment and the field entrance is not enough room to construct a guardrail.

There was a warning sign, referred to as. a “hazard marker,” on the bridge to warn motorists of a hazard. Mr. Sanders opined that the Respondent made a reasonable effort to warn the decedent.

Although decedent left the pavement over 170 feet from the abutment, there was no attempt to recover. The coroners report indicates Mr. Fejes was on medication and had been advised not to drive.

Sanders explained that the two guardrails attached to the east and west side abutments of the northbound lanes and the abutment on the east side of the southbound lane, were installed according to design standards that were in effect at the time of construction. The purpose of the guardrail was to redirect the motorist from hitting the abutment. The field entrance, located north of the subject abutment, could not be blocked, therefore an effective guardrail could not be installed. The design standards permit the Respondent to move the field entrance if the entrance does not have to be moved onto another persons property.

Sanders stated that according to todays design standards, a couple hundred feet was necessary to put an effective guardrail at the location. At the time the abutments were originally constructed 100 feet was necessary to install an effective guardrail. The design standards do not permit a guardrail to be installed within the 10 to 15 feet between the field entrance and the abutment.

Sanders did not have any personal knowledge as to why the field entrance was not moved. The departmental report included two memoranda, one dated August 19, 1985, and the other July 18, 1986, on that question. Both memoranda indicate that a guardrail was not installed at the abutment in question because it would block access to the property north of the stream (or bridge) and there was no history of accidents at the bridge. If the entrance was not necessary, Respondent would have placed a guardrail at the location. An improperly installed guardrail, one with too short of a taper, becomes a greater hazard.

In 1982, when the bridge was last worked on, the design standards did not require the installment of a guardrail at the abutment in question.

Rebuttal Witness — Claimant

Ann Fejes testified as a rebuttal witness. She was with Mr. Fejes the last time he saw a doctor. She did not know of any restrictions placed by any doctor in terms of Mr. Fejes’ ability to drive.

Case Law

Claimant cites several cases in her brief. The cases do not address the issue of when or where the Respondent may be negligent for the failure to construct a guardrail.

Claimant argues that it is reasonably foreseeable that a motorist would hit a bridge abutment one foot ten inches from the pavement. Claimant cites Keller v. State (1982), 36 Ill. Ct. Cl. 99, in support of her argument. In Keller, a motor vehicle left a highway and slid into a previously-damaged guardrail. The claimants in Keller alleged that Respondent was negligent in permitting the dangerous condition (the previously-damaged guardrail) to exist for over three months. (Keller at 101.) Keller, unlike the circumstances in the present dispute, is a case where there was evidence of a failure in Respondents maintenance duty.

Claimant cites Seifert v. State (1988), 42 Ill. Ct. Cl. 8, for the propositions that it is reasonable to assume that vehicles leave the paved surface of the highway from time to time and that the Respondent has a duty to maintain the shoulder of the roadway in a reasonably safe condition. In Seifert, it was undisputed that the shoulder was in a general state of poor repair. (Seifert at 10.) The case at bar is styled, regardless of the allegations, as a case where Claimant is alleging improper design or construction, not maintenance. Claimant has not cited any case addressing the issue of when the State is liable for not designing or installing a guardrail.

In Brockman v. State (1975), 31 Ill. Ct. Cl. 53, Claimants alleged that Respondent was negligent in designing a highway. The Brockman court noted the well-settled law that the State is not an insurer of the safety of all persons who use its highways. (Brockman at 56.) The Brockman claimants presented no testimony to indicate that the design of the highway and drains were not in conformity with accepted standards in the industry at the time they were constructed. The Court ruled that a single instance of a drain becoming clogged is not proof of negligent design. Brockman at 57.

The case at bar is similar to Brockman because Claimant did not present any testimony or exhibit that indicated that the design of the highway and the abutment were not in conformity with accepted standards in the industry at the time they were constructed. The Claimant did not present any evidence that the failure to place a guardrail at the location in question violated any accepted standards in the industry at the time of the accident.

The Court has addressed the issue of whether the State was negligent for not constructing a guardrail at other locations.

In Nass v. State (1979), 32 Ill. Ct. Cl. 487, the Court found that Respondent was not negligent in failing to erect a guardrail at the site where a car left the highway. In Nass, the testimony established that when the highway was built, a guardrail was not mandated at that location. (Nass at 495.) The Court, in denying the claim, stated that there was no evidence the State violated design criteria in not erecting a guardrail.

In Vaughn v. State (1985), 38 Ill. Ct. Cl. 27, the Court entered an award where a dip in the highway caused a vehicle to leave the road and crash into a lake. In Vaughn, Claimant called a State trooper as a witness and he testified that there had been other accidents at that location and he had talked to the highway department about putting up protection or a guardrail to keep people from running into the lake. Vaughn at 29 and 30.

The Vaughn case is distinguishable from the case at bar because the Vaughn claimant left the highway because of a condition, the dip, on the highway. In the present case, there is no apparent reason why Mr. Fejes’ motor vehicle left the highway. Contrary to the facts presented here, in Vaughn there was evidence of prior similar incidents and the opinion of a State trooper that a guardrail should have been present.

Although no cases have been located wherein a motorist struck an abutment not protected by a guardrail, Hodge v. State (1981), 35 Ill. Ct. Cl. 50, involves a fact scenario where a motorist struck the concrete headwall of a culvert. The Hodge claimant alleged that the location and construction of the concrete culvert was negligent and introduced evidence that highway standards in existence on the date of the accident were such that concrete culverts were obsolete. The evidence showed that the culvert met the construction standards at the time of construction. The Court found that there was no evidence that the headwall should have been removed. The Court noted:

"Further, it is not unreasonable to conclude that monetary limitations would prevent the State from completely redoing every State highway at any time that the State adopts new construction standards for reconstructed or new highways. The impossibility of such a responsibility both from the standpoint of public finances and available manpower militates in favor of a rule that would not require the State to undertake massive reconstruction of existing facilities.” Hodge v. State (1981), 35 Ill. Ct. Cl. 50, 55.

In the present case, there is no evidence that would prove the Respondent was not in compliance with accepted safety standards, either at the time the abutment and the highway were initially constructed, or on the date of the accident. Claimant argues that the Respondent has not demonstrated that the field entrance could not be relocated. Respondent does not need to demonstrate that the field entrance could not be relocated. The only relevant testimony on compliance with safety standards was by Sanders. The Court finds that Sanders’ testimony establishes that the absence of a guardrail did not violate accepted safety standards.

Furthermore, the Court finds that Respondent did not breach its duty to the decedent by failing to warn him of the nonexistence of a guardrail. The case cited by Claimant in support of her argument was in relation to the State failing to post a second speed limit sign on an exit ramp designed in an “S" configuration. (Starcher v. State (1988), 36 Ill. Ct. Cl. 144.) The State posted a speed limit sign for the first curve of the “S” configuration but not the second curve. The State knew from prior testing that the maximum safe speed of the second curve was significantly less than the maximum safe speed posted for the first curve. The present case is distinguishable, because the State in Starcher did not just fail to warn, but the warning the State gave misled the motorist to believe the posted speed was safe for the entire “S” configuration. 36 Ill. Ct. Cl. 144, 146.

Claimant did not present evidence of what type of warning should have been present, although she baldly asserts that, “the State should have erected a warning sign warning motorists of the lack of a guardrail, so that the motorist would be properly alerted to take special precautions in crossing the bridge.” In the case at bar, the evidence indicated that a warning (hazard marker) sign was placed immediately north of the subject abutment. The Respondent’s expert, Mr. Sanders, opined that Respondent made a reasonable effort to warn decedent. Based upon the evidence, including the clear weather conditions, it is reasonable to conclude that the abutment and the warning sign were readily visible to decedent.

For the foregoing reasons, the Court holds that the Respondent did not breach a duty to decedent because of the absence of a guardrail and an additional warning sign. The Court further holds that Claimant failed to prove by a preponderance of the evidence that Respondent was negligent. Therefore, the claim is denied.


text:
    (No. 86-CC-3406
    Shirley Crider, Administrator of the Estate of James Crider, Deceased et al., Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 13, 1994.

    Bryan J. O’Connor III, for Claimant.
    Roland W. Burris, Attorney General (Gregory Abbott, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Mitchell, J.

On January 11, 1985, 27 year-old James Crider’s (James) decade-long battle first with drugs and alcohol and ultimately with severe schizophrenia ended when he escaped from the Elgin Mental Health Center (EMHC) and apparently froze to death in a farm field less than one-half mile from the facility.

This cause comes before the Court on the claim of James’ mother, Shirley Crider, for damages under the Survival Act, damages under the Wrongful Death Act, and for funeral and burial expenses, including claims by James Crider’s parents and siblings for loss of consortium and society.

A default judgment was entered in Claimant’s favor on the issue of liability. Therefore, the only question for this Court is the amount of the damages.

Detailed testimony was heard from each of the members of the family concerning their relationship with James, both as he was growing up and after the onset of his mental illness. Having heard all testimony and viewed the detailed Claimant’s exhibits, it is clear that James grew up in a supportive environment and that even if James’ father’s work caused him to sacrifice some family time in order to support his family of eight, there were obviously many good times shared by James with his family before the serious problems of chemical dependency and mental illness set in.

The Crider family was worn out from riding the roller coaster of emotions caused by having a mentally-ill family member. (James was hospitalized for 1,174 days but that means he must have been home for nearly 2,000 days between hospitalizations during that last decade of his life.) They would be less than human if, upon learning of James’ death, they did not feel at least to a small degree a sense of relief both that James’ battle with the demons within him was finally over, and that their own conflicting emotions over what James had been and what he had become could be put aside and grieving over the loss of the former begun. Further, it was impossible for the Crider family to detect when James’ behavior caused by chemical dependency changed into actual mental illness from which no amount of detoxification could save him.

Because the sole question before us is damages, we must limit our holding to that area.

We find Claimant’s comparison to Copland v. State (1989), 41 Ill. Ct. Cl. 125, inappropriate as regards the amount of monetary damages.

In Copland, the decedent was a hopelessly retarded but very loving boy whose life revolved around his relationship with his family, who exhibited an almost incredible outpouring of affection for this boy who would remain a perpetual infant, but was at least capable of returning a child’s love.

By contrast, James Crider was no longer able to profit from the love or affection of his family as his illness became more pronounced and his withdrawal from the real world more complete.

Family reaction in the two cases is likewise dissimilar. Scott Copland’s family had no reason to expect Scott’s death; James Crider’s family knew of his self-destructive behavior. James Crider’s family understood that their efforts were largely futile, and for the most part, with the exception of his mother, visited him only ancillary to visits to the home when James happened to be there. It was a logical reaction to a painful situation which they felt helpless to reverse. Nonetheless, the comparison to Copland is inappropriate.

James Crider, although obviously not in his right mind, walked into subfreezing temperatures wearing only a thin nightgown. We can only hope that he was not aware of the suffering his body endured in freezing to death. A large portion of the loss occurred before James' death because of his mental illness, for which the State of Illinois is not liable, and the amount awarded reflects that fact. For the pain and suffering decedent suffered prior to death, we award to the estate of James Crider the sum of $50,000, including expenses of funeral and burial. To Shirley Crider, who remained a regular visitor to James and, even in the face of his threat upon her life, suffered the pain of watching him deteriorate, we award the sum of $50,000 for loss of society. To his father, George Crider, we award the sum of $20,000 for loss of society. To his sister, Linda Keasler, we award the sum of $10,000 for loss of society. To his brother, Michael Crider, we award the sum of $10,000 for loss of society. To his sister, Gail Rasmussen, we award the sum of $10,000 for loss of society.


author: Frederick, J. Frederick, J. Frederick, J. Frederick, J.

text:
    (No. 87-CC-0048
    M. Jamil Hanifi, Claimant, v. The Board of Regents of the Regency Universities System of The State of Illinois, Respondent.

      Opinion filed September 20, 1993.

      Order filed January 21, 1994.

      Order filed March 17, 1994.

      Order filed May 12, 1994.

    M. Jamil Hanifi, pro se, for Claimant.
    Griffin, Winning, Lindner, Cohen & Bodewes (George M. Shur and R. Mark Mifflin, of counsel), for Respondent.
   OPINION

Frederick, J.

The Claimant, M. Jamil Hanifi, filed his amended verified complaint in the Court of Claims on November 17, 1986. Claimant alleged that the Respondent, Board of Regents of the Regency Universities System of the State of Illinois, breached the Claimants contractual and due process rights to a hearing in relation to employment discharge proceedings after Claimants resignation of his employment with the Respondent and that the resignation of the Claimant was coerced by Respondent and involuntary and, therefore, invalid.

The cause was tried by Commissioner Whipple, who was assigned to this case.

The Facts

The Claimant, M. Jamil Hanifi, had been employed with Northern Illinois University since 1969. It is undisputed that the Claimant plagiarized his doctoral thesis, which he obtained from Southern Illinois University in 1969. In addition, Claimant later published the plagiarized material in a book. Included in the Claimants book and doctoral thesis was plagiarized material from a book written by Mr. Manfred Halpern and material from an essay written by Professor Robert Bellah. Three of the nine substantive chapters of the Claimants book were plagiarized. The plagiarized doctoral thesis and book were used in conjunction with Claimants application to obtain tenure on the faculty of Northern Illinois University.

Professor Robert Bellah first became aware of Claimants plagiarism in 1976. Claimant testified that Professor Bellah wrote to him by letter of June 29, 1976. Claimant claims that he discussed this letter with Professor Ronald Provencher, the then chairman of the Department of Anthropology at Northern Illinois University. Mr. Hanifi claims that Professor Bellah accepted his apology and assurance that there would be no repetition of his plagiarism. Claimant also testified that Professor Provencher ultimately indicated that he did not like the way that Professor Bellah had handled the case and he tore up his copies of the letters from Professor Bellah and put them in the wastebasket.

Professor Provencher testified that he had been called by Professor Bellah in 1976 and that he had asked Professor Bellah to write a letter to Mr. Hanifi, detailing the plagiarism and to send Professor Provencher, as the chairman of the Department of Anthropology, a copy of this letter. Professor Provencher indicated that he never received the follow-up letter detailing the allegations from Professor Bellah and, therefore, the matter was dropped at that time. Professor Provencher denied that he ever told Mr. Hanifi that he did not approve of Professor Bellah s handling of this matter. Professor Provencher also denied that he tore up any letters from Professor Bellah.

The publisher for Mr. Manfred Halpern had first confronted Mr. Hanifi concerning the plagiarism of the Halpern material in 1977. At that time, Mr. Hanifi paid a financial settlement of $750 and apologized for his plagiarism of the Halpern book. Mr. Hanifi did not inform Southern Illinois University, where he had obtained his doctoral degree, or Northern Illinois University, where he was then employed, of the Halpem plagiarism in 1977. In 1981, Southern Illinois University became aware of the Claimants plagiarism of the Halpem book. The then acting dean of Southern Illinois University, Mr. John Jackson, confronted Mr. Hanifi with the charges of plagiarism of the Halpern book by letter dated January 16, 1981. Mr. Hanifi responded to Dean Jackson by admitting that he had plagiarized the Halpern book in a letter to Dean Jackson dated January 22, 1981. Acting on behalf of Southern Illinois University, Dean Jackson further inquired of Mr. Hanifi as to whether or not there had been any plagiarism in addition to the Halpern book. Mr. Hanifi responded, in writing, to Dean Jackson, assuring him that there was “No other plagiarism involved in the dissertation.”

By letter dated April 24,1981, Southern Illinois University formally advised Northern Illinois University of Mr. Hanifi s plagiarism of the Halpern book. At the time of the disclosure of the plagiarism to Northern Illinois University, Mr. Hanifi s application for the chairmanship of the Anthropology Department at Northern Illinois University was being considered. Mr. Hanifi met with the chairman of the department, Stanley Witkowski, who recommended that Mr. Hanifi withdraw his application for the chairmanship of the department. Mr. Hanifi testified that he met with chairman Witkowski on May 4, 1981, and was advised by Witkowski that the dean of Northern Illinois University wanted Mr. Hanifi to withdraw his application for the chairmanship of the Department of Anthropology. Chairman Witkowski denied that Dean Norris of Northern Illinois University had requested the withdrawal. Mr. Hanifi sent a letter to Dean Norris, withdrawing his application for the chairmanship of the Department of Anthropology. Dean Norris formally acknowledged the fact that Mr. Hanifi had withdrawn from the candidacy for the chairmanship of the Department of Anthropology by letter dated May 7, 1981. Dean Norris testified that he had not solicited Mr. Hanifis withdrawal from the candidacy for the chairmanship, nor had he discussed Mr. Hanifis withdrawal with any other individuals involved prior to the Claimants withdrawal.

Mr. Hanifi testified that he met with Dean Norris on May 8, 1981, and the dean told him at that time that his resignation from the chairmanship of the Department of Anthropology was sufficient discipline with reference to his admitted plagiarism. Dean Norris specifically denied that he ever told Mr. Hanifi that his withdrawal from the chairmanship candidacy was sufficient punishment for his admitted plagiarism. Dean Norris had not investigated the charges of plagiarism and, thus, had no opinion as to whether or not Mr. Hanifi should withdraw from the chairmanship prior to the time that Mr. Hanifi withdrew his candidacy.

John LaTourette, the current president of Northern Illinois University, who was the vice-president and provost of that university in 1981, acknowledged that plagiarism is “probably the most serious charge against a faculty member that one could imagine.” The president of the university in 1981, William Monat, similarly acknowledged that plagiarism is “probably one of the greatest offenses that can occur in the academic community.” Mr. Hanifi, himself, has written to others and admitted during his testimony that plagiarism involves “a complete lapse in professional judgment, moral sense and respect for academic ethics,” “a most serious violation with dishonor, shame and guilt,” “unethical conduct,” “dishonorable and unprofessional conduct,” and “dishonorable act and reprehensible and condemnable,” “a violation of basic scholarly activity and serious misconduct,” “a despicable act and a serious mistake.” Mr. Hanifi acknowledged that the plagiarism is not erasable.

After Mr. Hanifis withdrawal from the candidacy for the chairmanship of the Department of Anthropology, Mr. Hanifi went out of town to Washington, D.C. While Mr. Hanifi was out of town, in accordance with the instructions of Dean Norris, Professor Donn Hart investigated and confirmed the allegations of plagiarism which had been included in Dean Jacksons letter from Southern Illinois University to Northern Illinois University. Upon receipt of this information, Dean Norris wrote to Mr. Hanifi, indicating that the two of them should meet right away.

In response to the letter from Dean Norris, Mr. Hanifi telephoned the dean from Washington, D.C. on June 13, 1981. During the course of the hearing, Mr. Hanifi testified that Dean Norris raised the issue of his resignation during this telephone conversation. The statement, however, is contrary to statements made during the prior deposition of Mr. Hanifi, during which he indicated that Dean Norris had not mentioned resignation during this telephone conversation. On cross-examination, Mr. Hanifi acknowledged that he had, himself, first raised this issue of resignation in his letter of January 22, 1981, to Dean Jackson at Southern Illinois University when the Halpem book plagiarism had first come to light. In this letter, Mr. Hanifi specifically acknowledged that he was prepared to accept the decision and consequences of Southern Illinois University and asked only that he be advised of the decision before it was made public so that he could “resign if need be * * ° and return to Afghanistan.” Dean Norris testified that Mr. Hanifi first raised the possibility of his resignation with him at their meeting held on July 7, 1981.

Following this telephone conversation with Dean Norris on June 13, 1981, and before Mr. Hanifi returned to Northern Illinois University from Washington, D.C., Mr. Hanifi spoke with a colleague of his, Professor Cecil Brown, concerning this matter. Mr. Hanifi testified that Professor Brown told him that he should resign for the sake of the department and that Southern Illinois University was looking to Northern Illinois University to take action and the Board was looking to Northern Illinois University to take action. Professor Brown acknowledged that he had recommended to Mr. Hanifi that he resign. However, Professor Brown specifically denied that he told Mr. Hanifi that Dean Norris, Southern Illinois University, or the Board of Regents wanted his resignation or wanted Northern Illinois University to take action against Mr. Hanifi.

Mr. Hanifi met with Dean Norris on July 7, 1981, upon Mr. Hanifis return to Northern Illinois University from Washington, D.C. According to Mr. Hanifi, Dean Norris indicated during this meeting that he had two items for Mr. Hanifi. One was a resignation letter and the other was an envelope containing “the machinery to dismiss you.” Mr. Hanifi testified that Dean Norris told him he could see what was in the envelope if he did not sign the resignation letter. Mr. Hanifi testified that Dean Norris told him that the Board was looking to secure Mr. Hanifis resignation or to fire him and that Southern Illinois University was looking to Northern Illinois University to take action against Mr. Hanifi. Mr. Hanifi also testified that he was overwhelmed by the dean’s statements and was absolutely intimidated. Mr. Hanifi testified that he did not want to resign, but he went ahead and signed the letter of resignation. Mr. Hanifi testified that he did not read the letter of resignation but he did indicate that he asked that the phrase “for personal reasons” be inserted into the letter. Mr. Hanifi testified that he was not shown a letter to him from the provost, which detailed the charges of his plagiarism and which referred to Mr. Hanifi s rights under the university constitution and by-laws, including a summary of the evidence and witnesses against him and containing the recommendation of the provost that Mr. Hanifi be discharged for cause immediately.

Mr. Hanifi testified that he was not told of his right to a hearing at this meeting with Dean Norris on July 7, 1981, and that he was not aware of his right to a hearing notwithstanding his position of professor at Northern Illinois University and having been employed there since 1969. However, on cross-examination, Mr. Hanifi admitted that in a letter which he wrote on February 24, 1982, to Professor Carroll Riley at Southern Illinois University that Mr. Hanifi had acknowledged that Northern Illinois University had offered him the option of an open hearing which he declined because “it would have made public the stain on Southern Illinois University, my department here, and would have led quite likely to my immediate dismissal.” The letter of resignation is a one-paragraph letter which simply states Mr. Hanifi resigns his position for personal reasons effective May 15, 1982. Mr. Hanifi testified that he was not aware that he would be allowed to teach the upcoming academic year when he signed the letter on July 7,1981.

Dean Norris testified that he specifically read the letter from the provost to Mr. Hanifi, which detailed the charges of plagiarism, during this meeting between Mr. Hanifi and Dean Norris on July 7, 1981 and that he gave a copy of the letter to Mr. Hanifi at that time. This letter included reference to Mr. Hanifis rights under the university constitution and by-laws. Dean Norris also had a copy of the constitution and by-laws available for Mr. Hanifi. Dean Norris testified that Mr. Hanifi asked if the hearing would be secret and that Dean Norris indicated that the proceedings were confidential, but the fact that the hearing was going on would probably not be able to remain confidential. Mr. Hanifi indicated to Dean Norris that he was concerned about the impact of a public hearing on his family.

Dean Norris then asked Mr. Hanifi to sign a receipt for his copy of the charges detailed in the provosts letter. Mr. Hanifi then asked if there was any way that these proceedings could be avoided and Mr. Hanifi raised the possibility of his resignation. Dean Norris advised Mr. Hanifi that if he resigned from the university, the issue would be moot. Dean Norris testified that as a result of his conversation with Mr. Hanifi, the dean asked his secretary to prepare a letter of resignation, which Mr. Hanifi then signed. Dean Norris denied that the resignation letter had been typed prior to his meeting with Mr. Hanifi. Dean Norris indicated that the effective date of May 15, 1982, resulted from Mr. Hanifis request. Mr. Hanifis son graduated from high school in May of 1982. Dean Norris officially accepted the letter of resignation from Mr. Hanifi by letter dated July 10,1981.

Dean Norris specifically denied the allegations of Mr. Hanifi with reference to comments made about Southern Illinois University and the Board of Regents. Dean Norris testified that neither the Board of Regents nor Southern Illinois University was requesting the resignation of Mr. Hanifi, nor had they requested Northern Illinois University to take action against Mr. Hanifi. Further, Dean Norris specifically testified that he had not told Mr. Hanifi that the Board of Regents or Southern Illinois University was requesting his resignation or was requesting that action be taken against him.

In accordance with the letter of resignation, Mr. Hanifi taught his regular course load the next 1981-1982 academic year. However, Mr. Hanifi testified that he was “in a daze” from July through the fall semester of 1981. In December, he met with the president of Northern Illinois University to review the procedures followed in his resignation and to inquire about pressure from the Board of Regents. By letter dated January 19, 1982, President William Monat of Northern Illinois University responded that he refused to review the resignation or to reverse the actions of the dean. Significantly, President Monat testified that “the seriousness of plagiarism is probably one of the greatest offenses that can occur in an academic community,” and that it was his sense that Mr. Hanifi would have been discharged had he not resigned. This is true even though the charges brought related exclusively to Mr. Hanifis plagiarism of the Halpern book. Dean Norris was not aware of Mr. Hanifis plagiarism of Professor Bellahs work until three years after the resignation of Mr. Hanifi.

Mr. Hanifi did nothing further until April of 1982 when he went to see Dave Murray, the chairman of the Board of Regents at the time. Mr. Hanifi testified that Mr. Murray told him that he should not have resigned and that he had legitimate reasons to pursue a legal case against Dean Norris and Northern Illinois University. Mr. Hanifi also testified that Mr. Murray told him that he knew of a case of plagiarism in the Department of Foreign Language at Illinois State University where the individual continued to teach. Mr. Murray recalled the meeting differently. Mr. Murray testified that he had absolutely not told Mr. Hanifi that he thought Mr. Hanifi had legitimate reasons to file suit and that he would never, and did never, express any opinion of Mr. Hanifis lawsuit. Mr. Murray denied telling Mr. Hanifi that he should not have resigned and denied telling him that he thought Mr. Hanifi should pursue this matter in the courts. Instead, Mr. Murrays testimony was that he simply told Mr. Hanifi that he should see an attorney and do whatever the attorney said and he referred Mr. Hanifi to an attorney. Mr. Murray denied advising Mr. Hanifi that an Illinois State University professor accused of plagiarism continued to teach and, in fact, testified that it was his recollection that the Illinois State University professor accused of plagiarism was either terminated or resigned.

The Law

Claimant has the burden of proving by a preponderance of the evidence that he had contractual and/or due process rights to a hearing prior to discharge by the Board of Regents of the Regency University System of the State of Illinois after his resignation was accepted by the Respondent. The Claimant must also prove that such contractual or due process rights were violated by Respondent and that he suffered damages thereby. For the reason that Claimant did resign, a threshold question concerning the voluntariness of the resignation must be addressed prior to considering any other issue. If the Claimants resignation was voluntary and not coerced, he cannot recover and we do not reach the issues as to contractual or procedural rights, a violation of those rights and damages.

From the lack of authorities cited in the briefs and our research, we find this particular factual situation to be one of first impression in the Illinois Court of Claims. However, the threshold issue we must first determine has been litigated in the civil courts and is an issue of voluntariness and coercion or lack thereof that can be determined from the evidence presented and from determining the credibility of the witnesses, including the Claimant.

There is no question from the evidence that Claimant resigned. If the resignation was voluntary by this public employee then it was effective and binding for all time when received by Respondent. (Weber v. Board of Fire and Police Commissioners (1990), 204 Ill. App, 3d 358; Stearns v. Board of Fire and Police Commissioners (1978), 59 Ill. App. 3d 569.) “When one voluntarily submits a resignation, he thereby divests himself of any legal interest in his former employment.” Whitaker v. Pierce (1976), 44 Ill. App. 3d 148.

We recognize that a resignation can be involuntarily coerced and therefore legally equivalent to a discharge. When a person is severed from his employment by coercion, the severance is effected by the supervisor and not by the will of the employee. A person forced to resign is in reality discharged and not a person who exercises his own will to end his employment voluntarily. (Piper v. Board of Trustees (1981), 99 Ill. App. 3d 752.) The issue is whether Claimants judgment was merely influenced or whether his mind was so dominated by Respondent as to prevent the exercise of an independent judgment. (Piper, supra at 758.) If an individual’s will was overborne or if his resignation was not the product of a rational intellect and free will, then his resignation is a discharge. The question of whether a resignation is voluntary depends on the circumstances under which it is made.

From a thorough review of the evidence in this case, we find that the Claimant has failed to prove that his resignation was involuntary, coerced or the product of duress. The testimony of Claimant and Respondent’s witnesses is at loggerheads. To believe Claimant’s testimony as to coercion, duress and involuntariness, we would have to disbelieve numerous other witnesses and find some grand conspiracy among the top officials at Northern lili-

nois University to injure Claimant, which would include mass perjury. Claimant has presented no compelling evidence to corroborate his testimony and therefore in light of the credible testimony disputing his claim, we find his testimony incredible. Frankly, we do not believe this admitted plagiarizer when he claims his will was overcome and he did not know what he was doing.

The Claimant has failed to pass the threshold question. He has failed to prove by a preponderance of the evidence that his resignation was not voluntary. Claimant made a voluntary and knowing resignation when faced in his mind with the options of seeking a hearing or resigning. Claimant alone made the choice to resign. The Respondent did not coerce the Claimant into resigning. Once Claimant voluntarily resigned, he had no right to a hearing and may not complain of an alleged illegal discharge.

For the foregoing reasons, it is the order of the Court that this claim is hereby denied.

ORDER

Frederick, J.

This cause coming on the Claimant’s motion for reconsideration, and the objection thereto, and the Court having reviewed the pleadings and testimony, and the Court being fully advised in the premises.

Wherefore, it is ordered that the motion for reconsideration is denied.

ORDER

Frederick, J.

This cause coming on the Claimant’s request to reopen and remove Claimant’s attorney, Respondent’s objection to request for extension of time, and Claimants objection to the objection to request for extension of time.

Wherefore, the Court finds:

1. That on September 20, 1993, the Court rendered an opinion denying Claimants claim.

2. That the opinion was signed by four judges of the Court of Claims.

3. That the Commissioner assigned to the case did not write the opinion.

4. That the opinion indicated that Claimant had failed to meet his burden of proof. Issues of credibility were resolved adversely to Claimant in great part leading to the opinion of the Court.

5. That on January 21, 1994, the Court denied Claimants petition for rehearing. In ruling on the petition for rehearing, the Court reviewed the entire court file and transcripts and the determination of credibility and findings of fact and findings of law. The Court believed the opinion was properly entered, was properly based on the evidence and law, and the Court did not change its opinion. The petition was denied.

6. That pursuant to sections 790.220 and 790.230 of the Court of Claims Regulations (74 Ill. Adm. Code 790), the Claimant has requested a rehearing and same has been denied.

7. That the regulations state, “Neither the claimant, nor the respondent, shall be permitted to file more than one application or petition for rehearing.” Section 79.230.

8. That the pro se request to reopen filed February 14, 1994, is an impermissible attempt to seek a rehearing a second time.

9. That Claimants objection to request for extension of time is not well taken. This Court ruled on the evidence. This Court did not consider in any way Claimants race, creed or culture. The Court ruled based solely on the evidence and the law.

10. That Claimant filed his claim, presented his case at trial, and did not obtain the result he had hoped for. He is not entitled to a second trial.

Therefore, it is ordered:

A. That Claimants request to reopen is denied.

B. That the motion for extension of time is denied.

ORDER

Frederick, J.

This cause coming on for hearing on Claimants petition for a rehearing filed March 18, 1994, and Claimants revised petition for a rehearing filed March 28, 1994, and the Court having reviewed the pleadings, and the Court being fully advised in the premises, wherefore, the Court finds:

1. That on January 21, 1994, the Court denied Claimants first petition for rehearing.

2. That pursuant to sections 790.220 and 790.230 of the Court of Claims Regulations (74 Ill. Adm. Code 790), the Claimant has previously requested a rehearing and the request has been denied.

3. That the regulations state, “Neither the claimant nor the respondent, shall be permitted to file more than one application or petition for rehearing.” Section 790.230.

4. That the March 14, 1994, and March 28, 1994, petition for rehearing and revised petition for rehearing are an impermissible attempt to seek a third and fourth rehearing. (See order entered March 17, 1994, previously denying the second request for rehearing.)

5. That there must be finality to cases and the Courts prior opinion is final denying Claimants claim for the reasons stated therein.

Therefore, it is ordered that Claimants petition for a rehearing filed March 18, 1994, and the revised Claimants petition for a rehearing filed March 28,1994, are denied.


text:
    (No. 87-CC-0180
    Debra O’Neill, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 30, 1993.

    Grurman & Nathan (Patricia Florio, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Gregory Abbott, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

The Claimant brought this action against the State of Illinois for its alleged failure to exercise ordinary care and its failure to operate its premises in a reasonably safe manner for persons lawfully upon its premises. The claim arises from an accident which occurred on August 2, 1984, at the Illinois Department of Public Aid offices located at 5822 North Western Avenue in Chicago, Illinois. On that date, the Claimant was lawfully on the premises awaiting an appointment with her caseworker. While waiting to meet the caseworker, she decided to get a drink of water from a water fountain. As she approached the water fountain, she slipped and fell on her tailbone.

The Claimant testified that she did not notice any water prior to the fall. Several Public Aid employees helped her up and asked her if she would like an ambulance. The Claimant refused an ambulance and walked to her home about three blocks away. The Claimant and her mother then went to Edgewater Hospital for treatment. At the hospital, x-rays were taken, and she was referred to Dr. Arnold. Dr. Arnold gave the Claimant heat treatments on the day of the accident. She returned to Dr. Arnold to receive numerous treatments over the next 10 weeks.

The Claimant has a history of prior injuries. In 1976, she tripped and fell backwards down five stairs, fracturing her coccyx, or tailbone. In addition, she injured her lower back at that time. She never received any treatment for that injury. She testified that the pain she suffered as a result of the 1976 fall remained with her as of the date she answered interrogatories in this claim in 1986. She suffered further injury to her tailbone and lower back during a fall in 1980. She received no medical treatment for that injury either.

For a Claimant to recover, she must show by a preponderance of the evidence that the Respondent owed the Claimant a duty, the duty was breached by negligent act, or omission to act, and that the act, or omission, proximately caused a compensable injury. (McCoy v. State (1985), 37 Ill. Ct. Cl. 182.) The Respondent has a duty to exercise ordinary care in maintaining its premises in a reasonably safe manner. Fleischer v. State (1983), 35 Ill. Ct. Cl. 799.

There is no doubt that the Respondent owed the Claimant a duty, and there was no doubt she was injured. There is a doubt that the Respondent had notice of a defective condition before the accident in question. The Claimant testified that she was in the Public Aid office on the day before the accident. She noticed on that day that the water fountain had an out-of-order sign on it. There is no testimony, or other evidence, to indicate that the water on the floor which may have caused her fall somehow resulted from the out-of-order water fountain. She did testify that the area where the water fountain was located was well lighted, and she was able to clearly see the floor.

Most importantly, the Claimant did not establish that the Respondent had notice that there was water on the floor on the day of the accident, August 2, 1984. Her testimony clearly indicated that the water causing her fall was minimal and not noticeable to the naked eye. In fact, she was only aware of the water after the fall. She simply failed to prove that the Respondent breached its duty to maintain the premises in a reasonably safe condition due to the lack of notice of the unsafe condition.

It is also fundamental that the Claimant show a causal connection between her pain and the fall in question. There is ample evidence in the record of the two prior injuries to her tailbone and lower back area. The Claimant admitted on cross-examination that her back pain was a result of the 1976 injuries. Although the testimony on direct examination was clearly very different, the commissioner who had the opportunity to observe the witness testify clearly felt that the Claimant failed to prove her case regarding damages by a preponderance of the evidence.

For the reasons above stated, we hereby deny this claim.


author: Frederick, J. Frederick, J.

text:
    (No. 87-CC-0223
    Richard T. Coulson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 16, 1993.

      Order on petition for rehearing filed December 10, 1993.

    Coulson & Grimm (Wesley J. Coulson, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Thomas S. Gray, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Richard T. Coulson, filed his cause of action in the Court of Claims on August 6, 1986. He alleged that the State negligently operated a street sweeper resulting in Claimants vehicle colliding with the rear of the street sweeper and that Claimants vehicle was, in turn, struck from the rear by a pickup truck that had been following the Claimant. Claimant alleges that he sustained personal injuries as a result of the collisions and seeks compensation from the State for those injuries, including loss of income.

The Facts

Claimant testified that in the morning of August 4, 1984, he was operating his vehicle westbound on Route 162 as it approached the 1-55 — 1-70 overpass near Troy, Illinois. Claimant testified it was a “nice day” and hot. The speed limit at the accident site was 45 miles per hour. The Claimant was driving about 40 miles per hour as he approached the 1-55 — 1-70 overpass. As Claimant approached the scene of the accident, a tractor trailer rig made a turn in front of Claimant, and Claimant started to slow down. The tractor trailer rig began to access the entrance onto the interstate highway and Claimant veered to his left to pass the tractor trailer rig. Claimant passed the truck on the left as the truck was going onto the northbound entrance ramp for the interstate highway.

Claimant testified there was traffic congestion in the area and he was concerned about getting through the intersection safely. After making it through the intersection, Claimant focused his attention on the westbound lane of Route 162 where he observed a dust cloud. There was no traffic ahead of him on the westbound lane of Route 162. Claimant testified that he “didn’t know what he was getting into” and was concerned about what the dust cloud was or if there was traffic ahead of him. Claimant testified that when he first went into the dust cloud, he immediately took his foot off the accelerator and started tapping his brakes. Claimant testified that he could not observe how far west he had proceeded on the bridge overpass when he tapped his brakes because the dust was so intense he did not know exactly where he was at. Claimant testified he didn’t know if he was going to hit something in the dust cloud, or if somebody was going to hit him in the rear because there was traffic behind him. Claimant testified he was afraid to stop completely for fear of getting struck in the rear. Claimant testified it was a thick dust cloud and he started pumping his brakes attempting to stop his vehicle. When Claimant applied his brakes, he testified he started sliding as if on icy pavement but did not have traction and very poor braking power. Claimant testified that as he was pumping his brakes and sliding he looked up and saw striped diagonal white lines eight or ten feet in front of him, and then he hit the vehicle which, as it turned out, was a State-operated street sweeper. He did not observe the lights on the back of the street sweeper and there was no “trail” vehicle behind the street sweeper. There were no flagmen or signs indicating street-sweeping operations in the area. Claimant testified that after a definite delay, his vehicle was struck from the rear, and his vehicle was pushed forward. Claimant was taken from the scene of the accident by an ambulance and the medical evidence indicates he suffered neck injuries.

The operator of the street sweeper, Robert William Gordon, was called by the State, and testified that he had swept the eastbound lanes on the bridge overpass, and in turn was sweeping the westbound lanes of Route 162 on the bridge overpass at the time of the accident. He testified the conditions were dry and dirty on the day of the accident. He was sweeping at a walking pace or three miles per hour. Gordon testified that the speed at which streets are swept depends on the debris and dirt that is involved “because he will create a lot of dust, which is unsafe to use yourself * * * if you go too fast.” Gordon testified he could see the amount of dust that he was making behind him. Gordon testified that he had no dust problem sweeping the westbound lanes of Route 162. Gordon was keeping dust down with water, and was looking in his rearview mirror. Gordon did not observe any unusual dust cloud behind the machine at any time on the date in question. Gordon testified there was a breeze or wind from the northwest. He testified that the travel lanes were clean and dry and the dirt was in the gutter up next to the curbing. The street sweeping machine takes the dirt away from the curbing using gutter brooms that are turned inward, and the dirt is thrown into an elevator that dumps the dirt into a hopper on the street sweeper.

Gordon did not feel the impact of the collision. The street sweeper was damaged when struck by Claimants vehicle in the rear by shearing off one of the pickup brooms off of its drive shaft. Gordon became aware of the accident when he looked in his rearview mirror and saw that he was picking up no dirt. Gordon observed a heavy amount of dirt and a car sitting back at an angle through his rearview mirror. Gordon stopped 40 or 50 feet in front of the Claimants vehicle. Gordon testified there was a little bit of material on the road where the vehicles were located, but not in the westbound lanes where he had swept.

On cross-examination, Gordon testified that the reason the bridge was being swept was in anticipation of the application of a concrete preservative oil and not because there was debris on the overpass. Gordon testified that the area of the overpass was in no different condition on the day of the accident as it had been on occasions when he had swept it before.

David Hill was operating his 1982 Chevrolet pickup truck behind Claimant’s vehicle at the time of the collision. Hill testified that there was a large amount of dirt on the bridge overpass which he noticed when he was traveling east on Route 162 shortly before returning in the westbound lanes. He had earlier noticed that trucks traveling westbound on 162 were creating “an enormous amount of dust” as they went across the bridge. Hill was familiar with that location, having traveled it many times earlier. Hill had stopped just east of the accident scene, and when he pulled onto Route 162 there was a green station wagon in front of him which he later determined was Claimant’s automobile. Claimant was stopped, allowing a large tractor trailer rig to come out of the frontage road and make a “U-tum” onto the interstate ramp. Hill didn’t remember if Claimant had come to a complete stop or not. Hill recalled that he couldn’t have been going more than 30 or 35 mph at that point. The tractor trailer rig continued on its journey onto the interstate ramp. Hill observed Claimant veer left and head up the overpass and Hill followed him up.

Hill testified that there was a point in time in which the tractor trailer rig that turned onto Route 162 and then turned off onto the interstate ramp was obscuring the view of traffic further west in the westbound lane of Route 162. Hill testified that after the truck entered onto the entrance ramp and Claimant’s vehicle went left around the tractor trailer rig, Hill could see a cloud of dust ahead of him and Claimant’s vehicle on the overpass. Hill testified that Claimant’s car headed up toward the cloud of dust and so did his vehicle. Hill assumed that there was another vehicle ahead of them that had gone across the bridge and had created the dust as Hill had noticed other vehicles doing earlier as he had crossed the bridge headed east.

Hill testified that after the tractor trailer rig turned onto the interstate entrance ramp, he saw that Claimant had not yet driven into the cloud of dust, but it was just another second or two before Claimant’s vehicle went into the cloud of dust. At that time, Hill testified that he was three or four car lengths behind Claimant’s vehicle. Hill described the cloud of dust as “totally encompassing” the entire lane and 20 feet tall. Hill said the dust was a “dark cloud” and fairly dense. Hill said that the cloud of dust he observed was comparable to the dust he saw trucks raising earlier when he had traversed the bridge overpass headed east. Hill testified that once Claimant’s vehicle went into the cloud of dust it was no longer visible to him. He stated that when he went into the cloud of dust he assumed that he would come out the other side and it would dissipate. Hill did not see the street sweeper at any time before his vehicle struck Claimant’s vehicle. Hill stated that it seemed like as soon as he went into the cloud of dust at the rate of approximately 30 miles per hour, the first thing he noticed were tail lights and he was hitting them. Hill said that the impact was almost instantaneous after he entered the cloud of dust. When Hill first observed the street sweeper, the rear brush was broken and the sweeper was still moving. Hill stated that the street sweeper was not continuing to raise dust at that time.

Hill testified that he looked at the surface of the overpass and there was at least an inch and a half of dusty, dry, loose dirt all over the road surface. Hill testified that you could see the dirt had been thrown to the side with swelling motions, but there was still an awful lot of dirt there. Hill demonstrated a powdery handful of dirt to a police officer who was at the scene of the accident.

A Troy police officer named Steven Howe testified that he came on the scene of the accident and observed that the surface of Route 162 where the vehicles were located was dirty. Howe testified that it was hard to determine the point of impact because there was quite a bit of dirt on the bridge. Howe testified that there was dirt on the westbound lanes all the way back to where the entrance ramp for northbound traffic on the interstate turned off of Route 162.

Keith Owings, an expert witness for the Claimant, testified that he had been employed by Delta Sweeping Company for 14 years and was familiar with the type of sweeper involved in this accident. Owings testified that trail vehicles with warning signs should be used in street sweeping operations where traffic speeds exceed 40 miles per hour, and that in his opinion, under the facts and evidence of this case, a trail vehicle with an arrow board should have been used behind the street sweeper alerting oncoming traffic behind it. Further, Owings testified that the speed at which Gordon testified he was operating the street sweeper was too fast, and should have been reduced to probably a half a mile an hour to a quarter of a mile an hour, which would have been an appropriate speed to control dust at the site of this accident.

Claimant contends that Robert William Gordon was negligent in operating the street sweeper at a rate of speed too fast for the conditions he encountered on the bridge overpass, and in the creation of a large dust cloud behind the street sweeper, creating a condition which resulted in the accident and the Claimants injuries. Furthermore, Claimant contends that Respondent was negligent in its policies and practices in relation to the use of “trail vehicles” to warn vehicles approaching a street sweeper from the rear. Respondent contends that the evidence did not establish that there was a heavy or unusual amount of debris or dirt on the overpass or that the street sweeper was being operated in a negligent manner. Respondent concedes the existence of a dust cloud at the time of the occurrence but argues that the street sweeper was not the proximate cause of the accident, but that the failure of Claimant to keep a proper lookout, or to operate his vehicle reasonably and prudently was the proximate cause of Claimants injuries.

The Law

In Witt v. State (1969), 26 Ill. Ct. Cl. 318, the employees of Respondent had started a fire which blanketed an adjoining highway with smoke impairing the vision of drivers of motor vehicles on the highway. Claimant had operated his vehicle into the rear of a truck which was unseen and stopped on the highway, thus causing the alleged damages. Respondent argued in Witt, supra, that when the Claimant could see the smoke enveloping the highway, and was aware of the condition and continued to operate his vehicle through the smoke, he had failed to proceed with caution or with the care of an ordinarily prudent person.

The Court held in Witt, supra, that the Claimant had not acted with due care and caution by driving into dense smoke which was clearly visible from a distance and proceeding at 25 to 30 miles per hour without being able to see what was in front of him. This Court cited with approval from Ames v. Terminal Railroad Assn. (1947), 332 Ill. App. 187, 75 N.E.2d 42, where the Illinois Appellate Court held that persons approaching a place of danger have a duty to do so cautiously, and with a proper degree of care for their own safety. A person has no right to knowingly expose himself to danger and then recover damages for an injury which he might have avoided by the use of care for his own safety. This Court has repeatedly held that drivers utilizing highways of the State are charged with the duty of looking and seeing things which are obviously visible. Adams v. State (1981), 35 Ill. Ct. Cl. 216.

In Ames, supra, the evidence presented on behalf of the claimants demonstrated that they first saw the smoke when their car was 80 or 90 feet east of the place where there was a vehicle stopped. The plaintiffs’ car traveled about 40 feet in the first smoke that was encountered by the plaintiff which obstructed the view so that they could not see too well and that the driver of the car took his foot off the accelerator, which automatically reduced the speed of the car, but at no time did he apply his brakes. The evidence also showed that the car was driven a distance of 30 to 40 feet in the dense smoke, which was so dense that the driver could not see beyond the hood of the automobile before it ran into the end of a bus. The driver made no attempt to stop the automobile upon becoming apprehensive of the danger involved in driving in the dense smoke where he could not see beyond the hood of his car, nor did the plaintiffs’ passengers warn the driver of a danger or request him to avoid the danger.

This Court, in Witt, supra, at 323, stated as follows, “Where the highway is of such condition that one can see nothing ahead, it is not reasonable to proceed at 25 to 30 m.p.h., if at all.”

Claimant cites Schuett v. State (1984), 36 Ill. Ct. Cl. 61, in support of the proposition that the State must exercise reasonable care in the performance of its duties of maintaining the highways in a safe condition. In Schuett, supra, the State had piled snow eight feet high onto the median of the road, thereby blocking the vision of motorists. The Court held that the States own plowing operations created the dangerous condition, and made an award to the claimant because she went into the intersection inch by inch before she was struck. The State, however, is not an insurer of all accidents upon its highways. Adams v. State (1981), 35 Ill. Ct. Cl. 216.

This Court distinguished Schuett, supra, from its ruling in Aetna Insurance Co. v. State (1981), 34 Ill. Ct. Cl. 167. In Aetna Insurance Co., supra, the claimant intended to make a left-hand turn but found his vision obstructed by snow plowed six feet deep into the median. Claimant pulled slowly into the intersection and upon finally seeing an oncoming car, claimant attempted to accelerate through the intersection where claimant was struck. The Court held that claimant was negligent in rolling out into the intersection when he saw the oncoming traffic. The Court pointed out that claimant had every opportunity to stop his vehicle and did not “inch out” into the intersection as had other cars that were observed, but rolled out into the intersection without stopping at any point. The Court concluded that the claimant in Schuett, supra, who pulled forward an inch at a time had used as much caution as was possible to navigate an intersection made dangerous by the State’s snow-plowing techniques unlike the claimant in Aetna Insurance Co., supra.

Expert witnesses called by both the State and the Claimant in the present case testified that the operations of street sweepers are prone to create dust. Based on Claimants Exhibit 1, it appears that Claimant observed the cloud of dust sufficiently in advance of having reached it, to have decreased the speed of his vehicle considerably, or to have stopped altogether due to the potential impairment to his vision. However, although Claimant “didn't know what he was getting into” he accelerated toward and into the dust cloud. He took his foot off the accelerator and started “tapping his brakes” but only started pumping his brakes after he had gotten into the dust cloud and had found that it was more intense than he expected. Claimant “kind of thought” that the dust cloud might go away as quickly as it had come. Claimant described “tapping” his brakes by “just touching them” and “pumping” his brakes as “pushing the brake down, releasing it, pushing the brake down and releasing it.”

Hill, the driver of the vehicle immediately behind the Claimants vehicle, testified that he observed Claimant's car pass the rear of the exiting tractor trailer on the left and Claimants car proceed up the incline toward the bridge. Hill observed the exiting tractor trailer move out of his line of sight, and he then saw a cloud of dust on the overpass with Claimant’s car headed directly toward the cloud of dust. Hill’s vehicle was also headed toward the cloud of dust. Hill assumed there was another vehicle ahead of Claimant’s vehicle that had gone across the bridge, and created the dust similar to that which he had noticed other vehicles doing when he was earlier traveling east on Route 162. When Hill observed the scene after the truck exited Route 162, Claimant’s vehicle had not yet driven into the cloud of dust and it was just another second or two before Claimant went into the cloud of dust. Hill’s vehicle was only three or four car 'lengths behind Claimants vehicle at that point. Hills vehicle entered the cloud of dust at a rate of 35 miles per hour. Hill testified it was five seconds more or less from the time he first saw the cloud of dust until his vehicle entered it. On cross-examination, Hill testified that after the tractor trailer had exited Route 162 to the right, both Hill’s vehicle and Claimant’s car accelerated toward the cloud of dust, and that the distance between Hill’s vehicle and Claimant’s car was increasing. Hill testified that both vehicles had increased their speed “from almost nothing to 30, 35 m.p.h.”

Hill also testified that he lost sight of Claimant’s vehicle upon its entry into the dust cloud, Hill did not think that he was accelerating, but had hesitated and entered the dust cloud at close to 30 miles per hour. Hill testified, “I didn’t accelerate more, but eased off the gas as I entered it.”

It seems no less unreasonable for the Claimant in this case to have accelerated into a dense cloud of dust at approximately 30 miles per hour and sustain damages for which recovery is sought, than it was for the claimant in Aetna Insurance Co., supra, to have rolled out into the intersection when his vision was obscured. In both cases, there was a clear danger. In both cases, the driver proceeded despite the obvious clear danger resulting in an accident. Despite the intervening application of the rules of comparative negligence, the proximate cause of the damage sustained by the Claimant was not the alleged negligence of the State but the negligence of the operator of the vehicle in proceeding in the operation of his vehicle when there was obvious and present danger.

The Claimant had a duty to maintain a proper lookout and to stop or slow to' a very slow speed prior to entering the dust cloud. As such, the question of negligence and proximate cause of the accident is properly a question for the finder of fact. The weight of the evidence supports the conclusion that Claimant was negligent and the proximate cause of the accident for failing to exercise reasonable caution and care when approaching the dust cloud no matter how the dust cloud was created. Price v. State (1985), 38 Ill. Ct. Cl. 60.

The adoption of comparative negligence in Illinois did not extinguish the requirement that Claimant must establish proximate cause on the part of the Respondent and the failure of Claimant to so establish proximate cause precludes liability and negates the need to compare fault. Harris v. State (1986), 39 Ill. Ct. Cl. 176.

There is no evidence in the record to suggest that had Claimant prudently applied his brakes when he observed or should have observed the dense dust cloud confronting him that he could not have avoided a collision with the rear of the street sweeper.

It is therefore our order that this claim be denied.

ORDER

Frederick, J.

This cause coming on for hearing on the Claimants petition for rehearing and the Respondents objection thereto, and the Court having reviewed the evidence, testimony, pleadings and prior opinion, the Court having heard oral arguments, and the Court being fully advised in the premises, wherefore, the Court finds:

1. That the evidence supports the opinion of the Court filed March 16,1993.

2. That the Court properly found Claimants negligence to be the cause of his injuries.

3. That the Courts opinion was not against the manifest weight of the evidence.

Therefore, it is ordered that the petition for rehearing is denied.