source: Caselaw Access Project

author: Raucci, J. Frederick, J.

license: Public Domain

text:
    (No. 86-CC-2516
    Lillian Minor, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 28, 1996.

      Opinion on Rehearing February 18, 1998.

    Hilfman & Fogel (Steven Fuoco), Counsel for Claimant.
    James E. Ryan, Attorney General (Cynthia J. Wood, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

On February 29, 1984, before 8:00 a.m., Claimant Lillian Minor slipped and fell when trying to enter the Forbes Building on the grounds of the Manteno Mental Health Center operated by the Illinois Department of Mental Health.

She was employed by the Regional Office of Education for the Kankakee School District as a social worker. She was assigned to work in the Forbes Building, and had been so assigned for almost two years.

She had arrived early on February 29, 1984. While it was not then snowing, she noticed that the back entrance that she normally used was blocked by a pile of snow. The pile, almost two feet high and knee deep to her, covered almost tire entire width of the sidewalk in front of the back entrance. It was evident to her that the pile was not windblown snow because it was clumpy and similar to clumps that form after snow and ice have been shoveled. Since it was not possible to walk around or jump over the pile, and she did not want to walk through the pile, she got back into her car and drove to the front entrance. The area adjacent to tire front entrance had not been shoveled at all, was covered with ice and snow, and appeared worse than the area at the back entrance. She returned to the back entrance. Upon closer examination, she noticed some footprints in the pile so she decided to step into the existing footprints in order to enter the building. She stepped gingerly and watched where she stepped in order not to fall. However, she fell on her third step because there was a clump of ice buried in the pile. She fell on her outstretched hands and knees.

After she fell, she felt as though her hands and fingers were frostbitten. She got up and managed to get into the building. She reported her fall to her supervisor and other coworkers. She later observed swelling in her right hand and she could barely move her fingers. She then sought medical treatment, first at the medical facility at Manteno, where she was refused because she was not a State employee, then at the emergency room at St. Marys Hospital in Kankakee.

There she received an X-ray, pain pills and a referral to an orthopedist, Dr. Choy. Dr. Choy gave her a short arm splint to wear. She missed one week of work immediately following her fall.

She remained under Dr. Choys care for several months. Due to a lack of improvement, in April, 1984, she started seeing Dr. Keegan, a neurosurgeon. He determined that her ability to grasp with her right hand had diminished and that muscle atrophy had occurred. An electromyogram and nerve conduction velocity studies supported a diagnosis of ulnar nerve compression of the right elbow. The ulnar nerve provides muscle and sensory function to the hand and fingers. Accordingly, on May 11, 1984, Dr. Keegan operated on her to decompress the ulnar nerve. As a result of the surgery, she was not able to work for approximately 27 days and has a three-inch scar on her right elbow. After the surgery, she healed normally and was released to return to work with no restrictions.

Approximately three years after the fall, she fell down the stairs at her home and hit her right elbow. She suffered the same symptoms as she had after the prior fall. Dr. Keegan testified that he saw her again on March 31, 1985, and determined that she suffers from carpal tunnel syndrome on both sides, more notably on the right side. He directed her to wear a splint at night to alleviate the problem. If this conservative treatment is successful, no further treatment would be necessary. If not successful, surgery may be required.

Dr. Keegan testified that the ulnar nerve depression was “directly related” to the first fall. There is a “good possibility” that the carpal tunnel syndrome was also related to that fall, but he could not be positive.

At .the time of the hearing in 1995, Claimant testified that she has a lack of strength in her right hand, that her fingers get stiff and cramp, and that she suffers pain in her arm at times. She cannot write as much or as long as she did before the accident. She has difficulty with her grip and if she grips too hard, she gets cramps. She cannot drive as she used to and has others drive her. She does not cook because she has dropped things and is fearful of dropping something hot and scalding herself. She cannot bowl or play baseball. Prior to February 29, 1984, she had no problems with her right arm, elbow or hand.

Steve Odom, a former State employee, testified on behalf of Claimant. He had worked at Manteno from 1975 until July, 1984. He observed individuals from the Department of Transportation clearing ice and snow with tractors and big equipment on the big sidewalks, and shovels and hand tools on the entrances and small sidewalks. He did not observe any piles of snow in front of doorways, and had no recollection about the condition of the sidewalks or doorways around the Forbes Building on February 29,1984.

Alicia Parkinson testified that she worked at the Regional Office of Education of Kankakee County from 1982 to 1985. On February 29, 1984, Claimant told her that she had fallen on a snow pile and was complaining that her arm was hurting. Claimant looked like she was in pain. The witness went outside and looked at the snow pile. It was in front of the doorway that was normally used by employees and covered the area from the building to the edge of the sidewalk. It was about two feet deep and looked like a “heaped pile of snow” and was “lumpy” and “irregular.” It was not a drift but was shoveled snow.

Alicia Parkinson had used the same entrance as Claimant on February 29, 1984. She did not fall and has no knowledge of anyone else falling on that day.

In order for Claimant to prevail, she must establish the existence of a duty, a breach of that duty and an injury that was proximately caused by the breach. (Johnson v. National Super Markets, Inc. (1994), 257 Ill. App. 3d 1011, 1015, 630 N.E.2d 934, 938.) A property owner has no duty to remove natural accumulations of snow and ice, but if he chooses to do so, he must exercise ordinary care.

Here, the Respondent undertook to remove the snow and ice. The result of the removal left a snow and ice pile that was heaped, lumpy and irregular.

However, Claimant has failed to prove by a preponderance of the evidence that her injury was proximately caused by the pile. She observed the pile, determined that it was not safe to attempt to walk on it, went to the front, and then returned and, notwithstanding her misgivings, she attempted to walk over the pile. Her actions, whether viewed as proximately causing the injury, or as substantially contributing to her injury, resulted in the fall.

In Johnson, supra, the plaintiff did not see the patch of ice which caused her fall and it was not obvious. She observed only a puddle. In the instant case, Claimant was not only aware of the unnatural accumulation of snow but also that the pile contained clumps of ice. She was aware of the risk and initially declined to take a risk which she viewed as dangerous. Invitees assume normal, obvious or ordinary risks attendant to the use of the premises. (Ji Wong v. State (1983), 45 Ill. Ct. Cl. 180.) The Claimant, by deciding to enter the building by an entrance that she knew was blocked by an unnatural accumulation of shoveled snow and ice, assumed a normal, obvious and ordinary risk.

The Respondents actions were not the proximate cause of Claimants injuries. Additionally, Claimant was guilty of comparative negligence. We have adopted the doctrine of comparative negligence and find it applicable here, notwithstanding the Respondents failure to plead it as an affirmative defense. Claimants actions were more responsible for her injuries than the Respondents actions.

As we stated in Odom v. State (1988), 41 Ill. Ct. Cl. 103:

“No claimant has the right to expose himself or herself to possible danger and then recover damages for injuries which could have been avoided by the use of reasonable care, and claims for personal injuries must be analyzed under the doctrine of comparative negligence to determine whether any of the parties exercised less than reasonable care which proximately led to the claimant’s injuries.”

It is therefore ordered, adjudged and decreed that this claim be, and it is hereby, dismissed with prejudice and forever barred.

OPINION ON REHEARING

Frederick, J.

This cause comes before the Court on Claimants petition for rehearing. On August 28, 1996, an opinion was filed denying the Claimants claim. The judge who authored the opinion had previously recused himself from this case back in January, 1988. At the time, the judge had a potential conflict. That judge subsequently left the Court and then later rejoined the Court. At the time the judge authored the August 28, 1996, Opinion, he no longer had an actual or potential conflict in regard to this case. However, in the interests of fairness, the Court has granted Claimants petition to reconsider the case and we do so reconsider the case and enter this opinion.

The facts are not in dispute. On February 29, 1984, before 8:00 a.m., Claimant slipped and fell when trying to enter the Forbes Building on the grounds of the Manteno Mental Health Center operated by the Illinois Department of Mental Health. Although Claimant was employed by the Regional Office of Education for the Kankakee School District as a social worker, through an agreement with her employer and the Illinois Department of Mental Health, her assigned work location was in the Forbes Building. Claimant had been assigned to that work location for almost two years as of February 29, 1984. Cl aim - ant testified that February 29, 1984, was a very cold, wintery day with precipitation. On February 28, 1984, if had snowed “really bad” and it was the worst snow and coldest day of 1984. This snow had apparently occurred after she left work on February 28,1984.

According to Claimant, she arrived at work early on February 29, 1984. Claimant testified that she always liked to get to work early so she could get a parking place close to the door. She was the first to arrive to work that day. After parking, Claimant observed that the sidewalk had not been cleared and that the back entrance that she had used to enter the building for approximately two years was blocked by a pile of snow. The pile, which was almost two feet tall and knee deep to the Claimant, covered almost the entire width of the sidewalk in front of the back entrance to the building. It was evident to Claimant that the pile was not wind-drifted snow in that it looked dirty and clumpy and was similar to clumps that form after snow and ice have been shoveled. Since it was impossible for Claimant to walk around or jump over the pile and because she did not want to walk through the pile, she got back into her car and drove to the front entrance. The front entrance appeared to be in worse condition to Claimant because it had not been shoveled at all and was covered with ice and snow. Claimant could see the ice and the walk appeared slippery. Thereafter, Claimant returned to the back entrance. Upon closer inspection, Claimant noticed some footsteps in the pile at the back entrance so she decided to step into the existing footprints in order to enter the building. According to Claimants testimony, she used care by stepping gingerly and watching where she stepped in order not to fall. Notwithstanding that care, Claimant fell on her third step. Claimant testified that she fell because there was a clump of ice buried in the pile. Claimant fell on her outstretched hands and knees.

After Claimant fell, she felt as though her hands and fingers were frostbitten. Nevertheless, she continued on and made it into the building. No one was present in the Claimants office when she went in. Later, Claimant reported her fall to her supervisor and other co-workers when they arrived. Eventually Claimant observed swelling in her right hand and she could barely move her fingers. Claimant then sought medical treatment. She first sought treatment at the medical facility in the Center but she was refused treatment because she was not a State employee or resident of Manteno. She then sought treatment at the emergency room of St. Mary Hospital in Kankakee.

At the emergency room, Claimant received an x-ray, pain pills, and a referral to an orthopedist, Dr. Choy. Dr. Choy gave Claimant a short arm splint to wear. Claimant also missed one week of work immediately following her fall.

Claimant remained under Dr. Choy s care for several months. However, due to a lack of improvement, in April, 1984, she started seeing Dr. Harold Keegan. Dr. Keegan, a neurosurgeon, determined that Claimant’s ability to grasp with her right hand had diminished and that muscle atrophy had occurred. An electromyogram (EMC) and nerve conduction velocity studies supported a diagnosis of ulnar nerve compression of the right elbow. Accordingly, on May 11,1984, Dr. Keegan operated on Claimant to decompress the ulnar nerve. As a result of the surgery, Claimant was off work for approximately 27 days and has a three-inch scar on her right elbow. After the surgery, Claimant was deemed to be healing normally and was released to return to work with no restrictions.

Claimants weekly salary in February, 1984, was approximately $475. Claimants total lost wages totaled■ $3,040. Additionally, Claimants total medical expenses totaled $3,036.75.

Approximately three years after the fall on February 29, 1984, Claimant fell down the stairs at her home and hit her right elbow. As a result of the fall, she suffered the same symptoms as she had suffered on February 29, 1984. According to Dr. Keegan, who saw Claimant on March 31, 1985, Claimant has carpal tunnel syndrome on both sides, more notably on the right side. Dr. Keegan ordered Claimant to wear a splint at night to help alleviate the problem. If that conservative treatment would be successful, no further treatment would be necessary. However, if it is not successful, surgery may be required.

According to Dr. Keegan, the ulnar nerve depression was “directly related” to the fall sustained by Claimant on February 29, 1984. He also indicated that there was a “good possibility” that the carpal tunnel syndrome was also initiated by the fall. However, he could not be positive in that regard. There was no evidence of any degenerative changes in Claimants right hand in 1984.

As of the date of the hearing, Claimant testified that she had a lack of strength in her right hand, that her fingers get stiff and cramp, and that she had pain in her arm at times. Claimant testified that she cannot write as much or as long as she did before the accident. She has trouble with her grip and if she grips too hard, she gets cramps. She cannot drive like she used to and has to get someone else to drive her around. She also does not cook because she has dropped things and is afraid that she will drop something hot and scald herself. Also, Claimant testified she cannot bowl or play baseball. Prior to February 29, 1984, Claimant did not have any problems with her right arm, elbow or hand.

Steve Odom, a former State employee, testified on behalf of Claimant. From March, 1975, until July, 1984, Mr. Odom was a laborer in the plumbing department at Manteno. During that time period, he observed individuals from the Transportation Departments ground crew clearing ice and snow around the Forbes building. In cleaning the sidewalks, they would use tractors and big equipment on the big sidewalks and shovels and hand tools on the entrances and small sidewalks. At no time did Mr. Odom observe any piles of ice and snow in front of doorways. Mr. Odom had no recollection about the condition of the sidewalks or doorways around the Forbes Building on February 29,1984.

Alicia Parkinson testified that she worked at the Regional Office of Education of Kankakee County from 1982 to 1985. On February 29,1984, Claimant told her that she had fallen on a snow pile and was complaining that her arm was hurting. Ms. Parldnson indicated.that Claimant looked like she was in pain. Ms. Parkinson went outside and looked at the snow pile. According to Ms. Parkinson, the snow pile was in front of the doorway that was normally used by employees and covered the area from the building to the edge of the sidewalk. It was about two feet deep and looked like a “heaped pile of snow” and was “lumpy” and “irregular.” It was not a snow drift but was shoveled snow. Ms. Parkinson used the same entrance Claimant did to enter the Forbes Building on Februaiy 29, 1984. However, she did not fall and had no knowledge that anyone else fell. Claimant observed some plowing the morning of February 29, 1984, at Manteno but not at the two entrances she tried to use. Both Claimant and Ms. Parkinson testified that the snow pile was approximately two feet tall and “heaped,” “lumpy,” “irregular,” and looked like snow that had been shoveled.

The State presented no evidence and raised no affirmative defenses.

To prevail, the Claimant must prove by a preponderance of the evidence that the Respondent had a duty toward Claimant, that Respondent negligently breached that duty, that the negligence of Respondent was a proximate cause of Claimants injury and Claimants damages. Claimant must also prove that Respondent had actual or constructive knowledge of the dangerous condition. (Hardeman v. State (1995), 47 Ill. Ct. Cl. 292; Lee v. Board of Governors of State Colleges and Universities (1995), 48 Ill. Ct. Cl. 201.) Our analyses begin and end with the first element of the required proof. The State has a duty to exercise reasonable care for the safety of invitees using State buildings and property, but the State is not an insurer of the safety of invitees. (McGraw v. State (1986), 39 Ill. Ct. Cl. 182; White v. State (1986), 38 Ill. Ct. Cl. 1.) In a long line of cases, this Court has adopted the doctrine that an invitee assumes all normal, obvious or ordinary risks attendant to the use of the premises. Sanders v. Board of Governors of State Colleges and Universities (1995), 48 Ill. Ct. Cl. 177.

The open and obvious doctrine is based on public policy, developed long ago to promote the unfettered use of land. The application of the doctrine contradicts the traditional duty analyses of a negligence case. The doctrine focuses on whether the risk involved is open and obvious. If the risk is open and obvious, then the duty of care does not exist. The basis of the doctrine is that the owners duty to invitees arises only to the extent of the owner’s superior knowledge of the dangerous condition. The general rule is that a landowner has no duty to warn of open and obvious conditions.

Using traditional duty analyses, the Court considers the likelihood of injury, the potential gravity of the injury, the reasonable foreseeability of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the Respondent. Lance v. Senior (1967), 36 Ill. 2d 516.

The law has always provided-that landowners should not be confronted with the impossible burden of rendering their premises injury-proof and that landowners are entitled to expect invitees to exercise care for their own safety. Therefore, a Claimant must establish the Respondent’s duty to guard against the injury. The duty analysis focuses on the landowner and not on the Claimant’s actions. The key is whether the landowner could reasonably foresee injury to the Claimant. The landowner is not required to anticipate the negligence of the Claimant.

Following the open and obvious doctrine, we find under the facts of this case that Respondent had no duty to warn Claimant, an invitee, of this open and obvious snow pile. According to Claimant, the worst snowfall of the year had occurred. Respondent was still plowing in the area and had not completed snow removal. Claimant arrived very early to work and was the first to arrive in her section. Claimant observed the snow piled in front of the back door. She observed snow and ice and slipper conditions by the front door. Respondent did not have superior knowledge to Claimant regarding this snow pile.

The same considerations under the traditional duty analyses indicate that the Respondent had no duty to Claimant. The magnitude of the snowfall, the fact that Claimant was early for work, and that Respondent was still plowing snow prior to the shoveling of door areas as had been done in the past lead the Court to find that Claimants injury was not foreseeable and that, therefore, Respondent had no duty of care towards this Claimant under these facts in regard to tire snow pile. Walking through a two-foot snow pile is an open and obvious danger. The Respondent had no duty to warn Claimant of this open and obvious danger. Where there is no duty, there is no liability. This is not a defense but a failure of Claimant to prove a duty by a preponderance of the evidence. As Claimant has failed to prove a duty, the Court need not discuss breach of duty, proximate cause and damages.

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


author: JANN, J.

text:
    (No. 87-CC-1715
    Keith Scott and Donald Lawrence, Claimants, v. The State of Illinois, Respondent.

      Opinion filed June 29, 1998.

    Moehle, Smith & Nieman (Timothy Nieman, of counsel), for Claimants.
    James E. Ryan, Attorney General (Lawrence C. Rippe, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

Claimants Keith Scott (hereinafter “Scott”) and Donald Lawrence (hereinafter “Lawrence”) filed these consolidated causes of action in the Court of Claims against the Respondent, State of Illinois, Department of Transportation. The Claimants allege that the Respondents negligence was the proximate cause of their accident. Claimants allege they sustained personal injuries as a result of negligence and a breach of duty by the State in fading to properly advise of the closure of Route 251. The Claimants seek compensation from the State for these injuries. Counsel for both parties appeared before the Court on March 11, 1997 in Chicago, Illinois, to give oral arguments and have filed briefs.

Facts

The parties are in substantial agreement as to the facts of the occurrence and have so stipulated.

On or about January 21, 1985, a blizzard had begun in the northern part of Illinois including the area surrounding the city of Rochelle. On January 25, 1985, visibility was virtually zero because of falling and blowing snow in the area surrounding the city of Rochelle, including Illinois State Route 251 (formerly known as Route 51) between State Routes 64 and 38, Ogle County.

Scott, at the time of the accident, owned a body shop and wrecker service. On January 25, 1985, at approximately 9:00 a.m., Scott was in the process of answering a service call for towing and proceeded north on Route 251 about two miles. Scott never at any time observed any barricades or warnings signaling the closure of Route 251. About a mile north of town on Route 251, Scott experienced a “white out.” Scott decided to continue on to retrieve the stalled vehicle because, due to the weather conditions, he did not believe he could turn safely around until he reached the intersection of Routes 251 and 64. When Scott approached the stalled vehicle he got out of his wrecker and determined he could pull the disabled vehicle with a chain rather than using a winch. At that moment, Scott was struck by another vehicle driven by Gordon Bradford in which the other Claimant, Lawrence, was a passenger. Scott sustained a broken arm, broken jaw, broken right leg and amputation of his left leg. Scott’s damages were stipulated to be a minimum of $200,000. It is also stipulated that a set off in the amount of $16,000 is applicable to any award.

Lawrence was a passenger in the backseat of Bradford’s vehicle. He intended to travel to Rockford and spend the day there. As Bradford’s vehicle proceeded north on Route 251, Lawrence did not see any signs or barricades of any kind indicating the closure of Route 251 and he testified that he observed cars traveling southbound.

After reaching a curve in the road at Hillcrest, a village about one mile north of Rochelle, Bradford’s vehicle encountered blizzard conditions. The party, according to Lawrence, wanted to turn around but they could not find a safe place as the driveways were blocked with snow. The collision occurred before they could safely turn around. As a result of the accident, Lawrence sustained a black eye and a fracture of the fourth lumbar vertebrae in his back. He testified that he still has back pain. Lawrence incurred medical expenses in the amount of $5,174.44 and lost wages of $3,900. Lawrence is seeking in excess of $25,000 for damages including pain and suffering. The State is entitled to a set-off of $8,750 by stipulation.

The Law

The Claimants allege in their brief that the weather on January 25, 1985, at 9:00 a.m. created an unreasonable/ dangerous condition on Route 251 between Routes 38 and 64; that the State had both actual and constructive notice, and thus had a duty to provide the public with adequate warning. The State allegedly breached that duty by failing to warn at all, or at best, failing to provide adequate warning and to do so in a reasonable amount of time. Claimants argue that with adequate warning, neither Scott nor Lawrence would have traveled on Route 251 that morning. Claimants allege their injuries can be directly and proximately linked to the failure of the State to provide an adequate warning of the hazardous road condition.

The Respondent alleged in its brief and reply brief that the road was closed; and even if it weren’t closed, the State is not liable for a dangerous condition of the road created by an act of God. The condition of the road was not the cause of the accident per Respondent, but the negligent acts by Claimants were the proximate cause of the accident as they failed to properly act for their own safety in the face of open and obvious danger.

A well-established rule of law is that "the State of Illinois is not an insurer against all accidents which may occur by reason of the condition of its highways.” (Scroggins v. State (1991), 43 Ill. Ct. Cl. 225, 226.) However, “the State owes a duty to all the users of highways to maintain them in a reasonably safe condition.” (Berry v. State (1968), 26 Ill. Ct. Cl. 377.) The State is also under a duty to give warning by the erection of adequate and proper signs when there is an unreasonably dangerous condition, of which the State has notice, either actual or constructive. Hout v. State (1966), 25 Ill. Ct. Cl. 301.

A Claimant must show that the State had actual or constructive notice of an alleged defect in order to recover on a negligent highway maintenance claim. The State may breach its duty to maintain a highway in a reasonably safe condition if the Claimant establishes that the State had actual notice of the defect which caused the accident and takes no action to correct the defect or warn of the defect. Pigott v. State (1968), 26 Ill. Ct. Cl. 263.

A determination of whether the State had constructive notice depends on the facts of each case. Constructive notice is imputed to the State where a condition by its evident nature, duration and potential for harm should necessarily have come to the attention of the State, so that the State should have taken some action. Stills v. State (1989), 41 Ill. Ct. Cl. 60.

The record is quite clear that Respondent was possessed of actual knowledge of the hazardous condition of the roadway and took action to remedy said condition. The primary question before us is tire adequacy of the States response as to providing warning to the motoring public and whether acts or omissions by the State constituted a breach of duty which proximately caused injury to the Claimants. We must additionally determine whether the Claimants’ acts were a proximate cause of their injuries and if so, to what extent. This occurrence is governed by pure comparative negligence, as it arose after Alvis v. Ribar (1981), 85 Ill. 2d 1, but before the enactment of statutory limitation of awards to Claimants who were found to be more than 50 percent negligent. Ill. Rev. Stat. (1985), ch. 110, pars. 2 — 116, 2 — 1107.1.

We note that the record herein does not address most of the evidence with great specificity other than the economic damages and injuries suffered by Claimants. The circumstances preceding the accident and grievous nature of Scott’s injury coupled with the passage of some nine years before hearing make the fading of recollections by witnesses understandable if problematic. The parties’ briefs are well reasoned and ably argued. Both parties rely on conclusions and speculation to reach ultimate issues of fact which are not necessarily of record. Ergo, we shall begin our analysis with a simple timeline in an attempt to organize and fairly weigh the evidence before us.

1. 12 a.m.-7:30 a.m. The parties agree that a storm or series of storms with snow, high winds and severe cold struck the area in question on January 21, 1985, and continued on and off through at least the afternoon of January 25, 1985. The evidence further indicates that both the city of Rochelle and IDOT were engaged in ongoing snowplowing and snow removal due to high winds and snowfall between 12 a.m. and 7 a.m. on January 25, 1985, within their respective jurisdictions.

The evidence as a whole also indicates that the severity of the storm was rather extraordinary from 12 a.m. to at least 12 p.m. on January 25, 1985. Claimants witness, Mr. John Gross, superintendent of streets in Rochelle from 1971-1993, was called in before his normal starting time of 7 a.m. He was unable to state the exact time of arrival, but testified that he and the full city crews under his supervision were summoned between 1 a.m. and 6 a.m. to clear snow from the city streets. The record does not indicate that Rochelles crews had completed their plowing-clearing efforts at or before 9 a.m. and Mr. Gross’ testimony indicated their efforts continued well into the afternoon.

The record indicates IDOT crews attempted to plow and clear State roadways in Ogle County and several adjoining counties from at least 12 a.m. on January 25, 1985. Before 7:30 a.m., the various IDOT plows encountered such dangerous conditions that they were instructed to cease operations until the weather improved to allow safe plowing in various locations in the four-county district. The testimony indicates the drivers were unable to ascertain the margins of the roadways and, thus, unable to safely operate the snowplows on Route 251 and other nearby north-south State routes at various times and locations within the IDOT District.

We are not advised as to meteorological data of the explicit conditions between 7:30 a.m. and 9 a.m. in the area in question just north of Rochelle.

Scott testified that he went to his place of business at approximately 6 a.m. His home in Rochelle was approximately one mile from his shop, also in Rochelle. He stated that it was snowing and very cold and that some areas in town were bad due to blowing snow. He described visibility as “good for a snowstorm” and “not so bad that you couldn’t see in town.” Scott also stated he had answered a number of calls that morning related to the storm such as starting stalled vehicles.

Lawrence testified that he had worked the third shift at a Rochelle factory and left work at 7 a.m. after completing his shift. Lawrence and his co-worker, Mr. Bradford, drove some five blocks to the home of a friend, also located in Rochelle, arriving at about 7:30 a.m. Lawrence and his two companions intended to travel to Rockford to spend the day in celebration of Lawrence’s new job and first big paycheck.

2. 7:30 aM.-9-.30 a.m. IDOT employees, Eugene Steder, Connie McQueany and Charles Lockard testified that they were instructed to begin erecting barricades on Route 251 at various intersections including Route 72 (about 12 miles north of Rochelle) and Route 38 which is actually within the city limits of Rochelle. The IDOT employees stated that they had erected barricades at Route 251 and Cairie Avenue in Rochelle between 8:30 and 9:00 a.m. This fact is disputed, but it appears clear that IDOT was attempting to erect barricades to close Route 251 in the Rochelle area between 7:30 and 9:30 a.m. and continued said efforts thereafter.

Mr. Gross, the superintendent of streets of Rochelle, testified that a maintenance agreement existed between IDOT and Rochelle for the erection of barricades and maintenance of State routes within the city ending at the north line of the junction of Route 38 and Route 251. (Mr. Gross added that the city limits actually extended some one mile north to the village of Hillcrest but were not included in the agreement.) Under the agreement, IDOT provided two types of barricades to the city for use upon IDOT directive or order of the Illinois State Police. The city was not empowered to erect the barricades on State routes at its own discretion per Mr. Gross’ testimony.

At approximately 9 a.m., Mr. Gross testified he was at a McDonald’s restaurant in Rochelle just north of the intersection of Routes 251 and 38. Gross stated he could see approximately 100 feet to the south, the center line of Route 38 at its intersection with Route 251 “between gusts of wind.” He stated visibility north was far less as it was an open area and he could not see beyond the “north border of McDonald’s” at times.

Mr. Gross received a call over his walkie-talkie at about 9:30 a.m. while at the McDonald’s requesting assistance from the fire department to respond to Claimants’ accident. Mr. Gross met emergency personnel at Routes 251 and 38 and proceeded to the accident scene. He did not observe any barricades as he headed north on Route 251. Mr. Gross was driving a city pickup with a snow plow and was followed by an ambulance and a second city truck with a snow plow. A third city truck and second ambulance also followed some 10 to 15 minutes later.

Scott received a call that a motorist requested her vehicle towed from a snow drift at about 9 a.m. He was contacted by pager to go to the Minuteman convenience store at Routes 251 and 38 in Rochelle where a woman and her daughter requested that their car be towed from a ditch or snowbank north of Rochelle on Route 251 as they had left personal belongings in the car. Scott proceeded north on Route 251 to retrieve the abandoned vehicle and saw no barricades or signs indicating closure of Route 251. As he proceeded about a half mile north, due to the rural nature of the area, there was blowing snow which became a sudden white-out near Hillcrest which was about one mile further north.

Scott testified he did not know if the car could be found and whether his own wrecker would get stuck due to blowing and drifting snow. He also stated that he was planning to proceed north to Route 64 where there was a large parking lot in order to safely turn around and return to Rochelle. Scott testified that the towing customer was from out of town and he did not know the location of the car nor which side of the road it rested upon before leaving to retrieve the vehicle. We lack evidence of when the patrons car was stuck. Scott did not listen to weather reports or otherwise attempt to check the road conditions before departing the Minuteman or at anytime that morning.

Lawrence and his two companions drove in Mr. Brad-fords car to a bank in downtown Rochelle just before 9 a.m. to cash their checks. Lawrence stated they cashed their checks and headed north on Route 251 about a half to three-quarters of a mile south of its intersection with Route 38. He observed no barricades or signs indicating closure of Route 251 shortly after 9 a.m. However, Lawrences complaint at paragraph 2(e) admits that Route 251 was closed to travel. Neither Lawrence nor his companions checked the radio for weather reports or sought information from other media sources as to road conditions prior to departure from Rochelle. Lawrence had no recollection of the weather conditions for the two preceding days but was somehow sure it was not snowing very hard nor blowing in town when he departed the bank. Lawrence was a passenger in the rear seat of a small sports car as they proceeded north on Route 251 and was looking between the front seats to observe the roadway and chatting with his companions. He testified that the blowing snow got worse at the city limits and became a blizzard at Ilillcrest, totally obscuring visibility. The driver and passengers had agreed to try to go to Route 64 and return to Rochelle when conditions appeared dangerous. The vehicle passed through a snowdrift and struck Scott. We are not advised as to the speed at which the car driven by Mr. Bradford was traveling just prior to impact. However, the testimony indicates they left the bank at 9:05 a.m. and traveled approximately five miles before the collision at about 9:30 a.m.

Although denying knowledge of poor road conditions, Lawrence stated that the weather the week preceding the accident was the worst he had seen in a long time. He also stated that he was aware that roads outside developed areas sheltered by buildings were generally worse than in town during snowstorms due to blowing and drifting.

3. 9:30 a.m.-2:00 p.m. Mr. Gross testified that he had requested a backup truck to assist emergency vehicles to reach the accident scene at about 9:30 a.m. En route to the accident scene, he observed a number of vehicles either in the ditch or on the roadway, and he stopped to pick up an injured person walking on the road before reaching the Claimants’ accident scene. Mr. Gross further testified that conditions were so poor that he feared for his own safety and that of city and emergency personnel. He further opined that there was no reason for anyone other than emergency personnel to be out on the roads that morning.

Between 9:40 and 10:00 a.m., State Trooper Mike Pearson arrived at the accident scene. Pearson testified there was a single barricade at Route 251 and Cairie Avenue in Rochelle as he exited town. Cairie Avenue is just south of Route 38.

Emergency aid was given to both Claimants and they were transported to the hospital for further treatment by approximately 10:10 a.m.

At approximately 9:45 a.m., IDOT requested assistance in barricading Route 251 according to Mr. Gross’ phone log. (We note the log was not introduced as a business record and was not particularly detailed, i.e., Mr. Gross could not determine the time he arrived at work on January 25, 1985.) Mr. Gross stated the log indicated Charles Lockhard of IDOT had requested the assistance of Rochelle’s crews in erecting barricades and had asked to use their facilities to repair his windshield wipers and wait for an IDOT mechanic. Mr. Gross did not personally converse with IDOT at this time as he was either approaching or present at the accident scene. Mr. Gross was asked when Rochelle’s crews responded to the request by IDOT. Although he could not be explicitly specific, his testimony as a whole indicates that his crew was unable to respond until returning from the accident scene as all three snowplows were assisting in the emergency traffic control and escort of ambulances to and from the scene.

Mr. Gross testified that he and his crew had erected all barricades at their disposal between approximately 10:10 a.m. and 2:00 p.m. He further stated that the city police had made several calls to report that the barricades were being knocked down by motorists or weather during the afternoon. In some areas, snow was plowed up in an effort to completely block roadways.

Mr. Frank Schotka, IDOT’s District Maintenance Engineer at the time, testified in a telephonic evidence deposition. Mr. Schotka’s office was in Dixon, Illinois, some 20 miles from Rochelle. Mr. Schotka did not have independent recollection of the day or events at issue. He testified as to normal IDOT procedures for road closures in similar circumstances and notification of other agencies. He also testified that during snow storms, all available manpower was devoted to snowplowing unless the roads became impassable at which point, the drivers would go to the nearest main road if possible, and erect a single barricade. Schotka had no reason to believe these procedures were not followed on January 25, 1985, but also had no personal knowledge of the events that day.

Claimants argue that Respondents failed to follow procedure in notifying various departments or agencies of road closure. As Claimants stated at oral argument, “the evidence does not indicate that all of those people were notified despite the unusually hazardous conditions that day.” However, the evidence does not indicate that said procedures were not followed nor that the alleged failure to follow procedure caused the incident complained of herein. There is also no proof that the efforts of the State were untimely under the circumstances; that either Claimant would have heard broadcast messages of road closures; or that the city could have erected barricades and warnings prior to the accident which would have averted Claimants’ injuries.

The State’s duty is to maintain its highways in reasonably safe condition by using reasonable diligence in such maintenance (Scroggins v. State (1991), 43 Ill. Ct. Cl. 225.) The State also has a duty to warn users of its roadways of unreasonably dangerous conditions of which the State has actual or constructive knowledge. (Hout v. State (1966), 25 Ill. Ct. Cl. 301.) There is clear and convincing evidence that the State had notice of the road conditions herein as its employees were engaged in maintenance activities at the time of the incident. The reasonableness of the State’s actions in maintaining the roadway and giving notice are at issue along with proximate cause of the injuries to Claimants. The adoption of comparative negligence in Illinois did not extinguish the requirement that a Claimant must establish proximate cause on the part of Respondent and the failure of Claimant to so establish proximate cause precludes a finding of liability and negates the need to compare fault. (Harris v. State (1986), 39 Ill. Ct. Cl. 176.) The cause of an injury is that which actually produces it, while the occasion is that which provides an opportunity for the causal agencies to act. (Briske v. Village of Burnham (1942), 279 Ill. 193, 39 N.E.2d 976; see also Vest v. City of Granite (5th Dist. 1982), 435 N.E.2d 755, 757.) If the negligence charged does nothing more than furnish a condition by which the injury is made possible and that condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury where the subsequent act is an intervening efficient cause which breaks the causal connection between the original wrong and the injury, and itself becomes the proximate or immediate cause. Thompson v. County of Cook (1993), 154 Ill. 2d 374, 609 N.E.2d 290.

Illinois law is well settled that a person approaching a place of danger has 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 injuiy which he might have avoided by the use of care for his own safety. Ames v. Terminal Railroad Assn. (1947), 322 Ill. App. 187, 75 N.E.2d 42.

In Witt v. State (1969), 26 Ill. Ct. Cl. 318, this Court held that Claimant had not acted with due care and caution when he drove into dense smoke which was visible from a distance, and by proceeding at 25 to 30 miles per hour without being able to see what was in front of him. The Witt casé was cited by this Court in Coulson v. State (1993), 46 Ill. Ct. Cl. 149 at 157, in which the Court observed that “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.

If we view the facts in a light most favorable to Claimants, that is assuming Claimants had no knowledge of the extreme weather conditions within one mile of Rochelle, notice of the condition ultimately rendering the roadway unfit for travel is vitiated to all parties including the State. There was no evidence offered to support a claim that the State knew or could know of the supposedly isolated whiteout which occurred just prior to the accident. Both Claimants described the storm as “freakish,” implying an anomaly not reasonably anticipated by a person acting with due regard for his own safety or that of others. We further note that contrary to arguments by counsel, neither Claimant testified of record that they would have taken other routes or chosen not to travel if informed of the conditions on Route 251 just prior to the accident. In fact, Scott’s testimony was refreshingly candid and indicated that he was well aware of the jeopardy he encountered and that he had regretted his actions in hindsight. The very nature of Scott’s business at the time as a tow-truck operator implies acknowledgment of risks inherent to recovery of vehicles in potentially dangerous circumstances occasioned by weather or emergencies of man-made- origin.

The preponderance of the evidence of record indicates that the proximate cause of both Claimants’ injuries was as a result of their own conscious disregard of open and obvious danger. Both Claimants had resided in the area for some years and knew that rural areas were more severely affected by blowing and drifting snow than urban areas. Both Claimants acknowledged that weather conditions were poor prior to leaving Rochelle and had been severe for some days. Neither Claimant made any attempt to listen to the radio or otherwise obtain travel information prior to departing Rochelle despite a series of storms in the same week and extremely cold temperatures.

The arguments regarding substantial changes in conditions between Rochelle and Hillcrest, though not unheard of in Midwestern winters, are not supported by the record. The testimony of Mr. Gross indicates that between 9:00 a.m. and 9:30 a.m., visibility within the city limits was subject to constant change and severe impairment. Claimants did not introduce persuasive evidence of a time frame which would impute a breach of duty by IDOT. The weight of the evidence indicates that both IDOT and Rochelle acted reasonably and responsibly in the circumstances. The record supports a finding that IDOT and the city made reasonable efforts to warn and protect the public given the manpower and resources available. The geographical scope and duration of the storm(s) must be considered in imposing a duty upon the State. Claimants have not persuasively proved the availability or efficacy of additional or alternate measures by introduction of expert testimony or the testimony of their other witnesses.

The assertion that Claimants were unable to ascertain severe weather conditions which had, by stipulation, prevailed for at least two days is not credible. We have previously held that when Claimant may clearly perceive an obvious danger, the failure of the State to take additional measures argued or proposed by Claimant is not an automatic imputation of a breach of duty by the State. (Slagel v. State (1990), 42 Ill. Ct. Cl. 28; Ruffcom v. State (1981), 35 Ill. Ct. Cl. 27; and Toliver v. State (1994), 47 Ill. Ct. Cl. 55.) While the comparative negligence standard applicable to Claimants in Illinois Courts has been amended several times, the underlying duty of a Claimant to prove the exercise of due care for his own safety has remained a condition of recoveiy in conjunction with the necessity of proving proximate cause. (Coulson v. State (1993), 46 Ill. Ct. Cl. 149.) The preponderance of the evidence of record indicates both Claimants were aware of substantial risks attendant to travel on the day in question and chose to not only ignore said risks, but made no attempts to obtain travel information or take measures to otherwise avoid jeopardy until they were injured.

While we deeply regret the grievous injuries suffered by Claimants and extend our empathy in the tragic consequences of this accident, we find it is both unreasonable and legally impossible to impose a duty of immediate response upon the State herein. Absent a clear showing by Claimants that the State acted with conscious disregard of a known hazard or imputed hazard for an unreasonable period of time in an ongoing emergency of significant duration and scope, we must deny these claims. Neither breach of duty nor proximate cause has been proven.

These claims are hereby denied and dismissed with prejudice.


author: JANN, J. JANN, J.

text:
    (No. 87-CC-3501
    Louise Ann Schmidt, as Executor of the Estate of Peter S. Schmidt, Deceased and Louise Schmidt, Christopher Schmidt, and Andrea Schmidt, Claimants, v. The State of Illinois, Respondent.

      Opinion filed March 27, 1998.

      Order filed June 29, 1998.

    Pignatelli.& Pignatelli (Patrick J. Liston, of counsel), for Claimants.

      James E. Ryan, Attorney General (Lain D. Johnston & Limo T. Cherian, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

JANN, J.

This cause is brought by Louise A. Schmidt, as executor of the estate of Peter S. Schmidt, decedent, and arises out of a motorcycle accident which occurred July 20,1986, on Illinois Route 10 between Easton and Mason City, in Mason County, Illinois.

Claimants complaint at count I seeks recovery under a negligence theory. Count I alleges that Respondent: negligently failed to remedy a dangerous condition on its roadway, i.e., a defective road surface; allowed said dangerous condition to exist for a long period of time; failed to keep the roadway in reasonably good repair and safe condition for public travel; and failed to warn the motoring public of a known dangerous condition. Claimant alleges that decedents fatal injuries were a direct and proximate result of Respondents negligence. Claimants letters of administration as executor of decedents estate are attached to and made an exhibit to the complaint.

Count I seeks property damage in the amount of $4,107.25 for decedents motorcycle; funeral expenses in the amount of $4,347.50; $350,000 for mental anguish; $350,000 for pain and suffering; and $1,280,000 for loss of support pursuant to the Illinois Survival Statute. Ill. Rev. Stat. (1985), ch. 1101 — 2, 755 ILCS 527 — 6.

Count II of the complaint is brought pursuant to the Wrongful Death Act (Ill. Rev. Stat (1985), ch. 70, et seq., 740 ILCS 180/0.01 et seq.) on behalf of Louise A. Schmidt, Christopher Schmidt, son of decedent, and Andrea Schmidt, daughter of decedent. Count II realleges the acts of negligence asserted in count I and further states that the decedents dependents as named above have been deprived of decedents support, consortium and service as a result of his wrongful death. Count II seeks damages for loss of support in the amount of $1,280,000 and for loss of services and consortium in the amount of $1,500,000.

Mr. Larry Henry of Route 1, Mason City, Illinois testified as to the events immediately preceding and following the accident. Mr. Henry is Louise A. Schmidts brother. Mr. Henry stated he had been riding motorcycles for approximately 16 years prior to the date of the accident. Mr. Henry recalled that July 20,1986, was a warm, dry summer day and that he and Peter Schmidt had decided to go for a motorcycle ride. Mr. Schmidt had ridden his motorcycle to rural Mason City from his home in Lyndon, Illinois on Saturday, July 19, 1986. Mr. Schmidt and his family were frequent visitors to Mason City as both Mr. Henry and his mother lived nearby. Mr. Henry testified that he had had ample opportunity to observe Peter Schmidt ride his motorcycle and that Schmidt was a careful, defensive driver.

On July 20, 1986, Mr. Henry and Peter Schmidt went for a motorcycle ride around 11:00 a.m. They rode in a staggered formation and Mr. Henry testified that the posted speed limit was 55 miles per hour and the riders were traveling at or below the speed limit. Mr. Henry was the lead driver with Mr. Schmidt trailing. Mr. Henry observed no “rough road” or other warning signs between Easton and Mason City.

Mr. Henry testified that he was checking on Peter Schmidt two to three times per minute. As they drove east from Easton toward Mason City, he did not notice Mr. Schmidt having any difficulties. He saw Mr. Schmidt traveling on the far right side of the lane whenever he checked, and testified that they both held the same line of travel as they proceeded toward their destination.

According to Mr. Henry, the bike Mr. Schmidt was riding was relatively new and Mr. Schmidt had mentioned no mechanical problems with the bike. There were no weather problems encountered during the trip. There were no animals in the area alongside the roadway at the time of the accident.

Mr. Henry noticed an oncoming car begin to “nosedive” as the car and Mr. Henry met. According to Mr. Henry, in his opinion, this meant the car was braking. Mr. Henry then checked behind him and saw something shiny flying through the air. He saw the car rise up as if it were running over something.

Mr. Henry brought his motorcycle to a stop and turned around. As he went back toward the car, he observed Peter- Schmidt lying on the south side of the roadway. The car was in the westbound lane. Peter Schmidts motorcycle was in a field on the north side of the roadway.

Mr. Henry testified that he found skid marks on the road which he believed were caused by a motorcycle sliding sideways and gouge marks he presumed were made by metal scraping the road.

Mr. Henry also found a hole in the roadway. He identified this hole in Claimants exhibits 1 and 2 by circling the hole depicted in the photographs introduced into evidence. The hole was on the southern-most part of the traveled roadway. Mr. Henry indicated the hole could have been in an almost straight line with the other gouge marks on the road by using Deputy Smiths diagram and indicating that the hole would have been where the motorcycle was first drawn on the diagram. Mr. Henry testified that there was a skid mark going into and out of the hole the width of a motorcycle tire which indicated the tire went over the inside edge of the hole in his opinion.

Plaintiff’s exhibit number 13 which was admitted into evidence, was a photograph of the pothole with a measuring tape over it which when viewed closely, indicates the pothole had a length of approximately 24 inches and a width of approximately 14 to 16 inches.

The testimony of Robert Arnold was submitted via an evidence deposition as an expert witness. His current employment includes providing engineering services for a variety of clients. Mr. Arnold testified that in his opinion, the pothole depicted in Claimant’s exhibits 2 and 3 could cause a motorcycle to lose control. He described the hole depicted in the photographs as significant in size and stated that a motorcycle rider could be surprised by coming upon such a hole.

The evidence deposition of Arlan Shoemaker was also admitted into evidence. Mr. Shoemaker was a lead worker for the Illinois Department of Transportation in July of 1986. His immediate supervisor was Vernon Reichle.

Mr. Shoemaker testified that when he inspected the roads in his jurisdiction that he would stop and get out of his car if he saw something that needed repair. He would not stop and get out of his car if he just saw a pothole. He would only stop his car and inspect the road if there was something more significant than a pothole. Mr. Shoemaker testified that Route 10 between Easton and Mason City was in a rougher condition than the other roads in his jurisdiction. He also stated that Route 10 probably required more attention than any other road in his jurisdiction. The asphalt on Route 10, for some reason, did not hold and most of the breakage occurred on the outer edge of the roadway.

Vernon Reichle also testified about the condition of the road. Mr. Reichle was a field technician and responsible for the maintenance of Illinois Route 10 where the accident occurred. His duties included inspecting the roads. Mr. Reichle testified that a pothole two to three inches deep and a couple of feet in diameter was something that he would probably want taken care of right away. He also testified that if he knew a stretch of road was in particularly bad shape, that area should be paid closer attention to than other areas on the road.

Mr. Reichle was aware in July of 1986 that Route 10 in the area of the accident was a particularly rough or bad piece of road. His subordinates and superiors were also aware of that fact. The problem with the road breaking up in the area of the accident had been going on for many years prior to the accident.

Mr. Reichle testified that his duties included maldng recommendations for the placement of warning signs. During questioning by the Attorney General, Mr. Reichle was asked if the roadway in the area of the accident was in such a condition that he should have recommended a warning sign. Mr. Reichles answer was “Yes, I should have.”

It was stipulated that Peter Schmidt was 37 years old at the time of his death. It was further stipulated that he was earning $25,307.05 at the time of his death, and would have continued to earn at least that amount until retirement at age 65, a period of 38 years. The loss of income over that period would be $708,597.

Louise Schmidt, wife of the deceased, testified that they were married almost 18 years when Peter was killed. Louise also testified about the loving, involved relationship Peter had with his children.

Louise described the close and loving relationship she had with Peter as her husband, lover, and friend. Louise described the effect that Peters death had on the children emotionally and financially.

Christopher Schmidt, Peters son, was 14 years old when his father was killed. He described his relationship with his father as “awesome.” He described the many activities he enjoyed with his father and the many ways his father influenced his life. Kristopher testified that not a day or minute goes by that he doesn’t wish his father was here.

Andrea, Peter’s daughter, was nine years old when her father died. She also testified about the close relationship she had with her father and the impact of his loss on her life.

The State has a duty to all users of its highways to maintain them in a reasonably safe condition. (Pigott v. State (1968), 26 Ill. Ct. Cl. 262.) That duty includes adequately warning motorists of hazardous conditions of which the State has notice. Hout v. State (1966), 25 Ill. Ct. Cl. 301; Gatlin v. State (1985), 39 Ill. Ct. Cl. 51.

The Claimant in this case has alleged that the State was negligent in that the State allowed a dangerous condition, a defective road surface, to exist in a roadway for a long period of time; allowed a pothole to exist in the roadway for a long period of time; failed to keep the road in reasonably good repair for ordinary travel; allowed a hazard, a pothole, to exist in the roadway; and failed to warn traveling motorists about the dangerous condition.

To recover in a claim of negligent highway maintenance, the Claimant must prove that the State had actual or constructive notice of the defect in question. Kirby v. State (1990), 42 Ill. Ct. Cl. 77.

The main issues in this case are whether a dangerous condition existed on the States highway, whether this condition was the proximate cause of Peter Schmidts death and whether the State had actual or constructive notice of the defect.

The dangerous condition complained of in this case was the rough road and, in particular, a pothole in Illinois Route 10 in the eastbound lane of traffic approximately seven tenths of a mile east of Road 2950E. There is no dispute about this stretch of road being under the jurisdiction and maintenance responsibility of the Illinois Department of Transportation as the Department has admitted these facts.

Arlan Shoemaker, lead worker at the time of the accident was aware that the road was in bad shape and had been aware of that for a long time before the accident. He testified that the road in question was in a rougher condition than other roads in his jurisdiction and probably required more attention than other roads in his jurisdiction. He knew there were only a couple inches of asphalt on the road and it just did not hold for some reason. He also knew the road had been breaking up on the outer edges of the roadway. He knew the breakage had been going on for some time prior to the accident. In fact, he knew the road had been deteriorating from 1975 until the time of the accident in 1986.

Mr. Shoemaker’s immediate supervisor, Vernon Reichle, was also aware of the rough condition of the road before the accident according to Mr. Shoemaker. Mr. Reichle testified at trial that as of July, 1986, he was aware that Route 10 between Easton and Mason City was a particularly rough or bad piece of road. Mr. Reichle’s superiors and subordinates were also aware that the stretch of road was particularly rough or bad. Mr. Reichle acknowledged that problems with the stretch of road brealdng up had been going on for many years prior to the accident in question. No evidence of actual notice of the pothole complained of appears of record. No evidence was introduced regarding complaints or other accidents at this site within a relevant time frame.

Negligence can be proven by either direct or circumstantial evidence. (Murphy v. Messerschmidt (1977), 11 Ill. Dec. 5553, 368 N.E.2d 1299.) Circumstantial evidence is sufficient to support a cause of action for negligence and to sustain a verdict provided the inferences drawn from that evidence are reasonable. McCommons v. Moorman Mfg. (1980), 81 Ill. App. 3d 708, 301 N.E.2d 1354.

The State made a motion for a directed verdict at hearing. The State’s motion for a directed verdict is based on the allegation that the Claimant has not established the existence of the alleged dangerous condition on Highway 10. While the Claimant has not produced any witnesses to specifically state that they saw the deceased hit the pothole there has been circumstantial evidence produced by the Claimant that shows that the State had actual or constructive notice of the rough condition complained of, and therefore, the motion for a directed verdict is denied. The States motion in limine to prevent the Claimants introduction of a departmental report depicting the condition of the highway is granted. The examination of witnesses at trial was not conclusive as to the funding of the proposed improvement project to reconstruct the roadway. The witnesses did not have direct involvement in seeking funding nor explicit knowledge thereof. This funding is essentially moot, as we have found that the evidence supports a finding of Respondents knowledge of the rough condition of the roadway and failure to erect warning signs per admissions of Respondent s agents.

The Claimant urges a finding that the roadway in general was negligendy maintained and constituted a dangerous condition. The evidence does not support such a finding. The photographic evidence indicates patching of the roadway, and testimony was introduced that weekly inspections of the roadway were performed by IDOT. It was also noted that pothole patching was done on July 15,1986, five days prior to the accident. The State is not an insurer of its highways. (Walter v. State (1989), 42 Ill. Ct. Cl. 1, 4 (citing McAbee v. State (1963), 24 Ill. Ct. Cl. 374; Trotter v. State (1993), 45 Ill. Ct. Cl. 164, 168.)) To be in a dangerously defective condition, a highway must be in a condition unfit for the purpose for which it was intended. (Trotter at 169, citing Baker v. State, 42 Ill. Ct. Cl. 110; Allen v. State (1984), 36 Ill. Ct. Cl. 24.) We have previously held that liability based upon negligent maintenance of a highway can be imposed only if the State had actual or constructive notice of a defect. Stills v. State (1989), 41 Ill. Ct. Cl. 60.

Herein, there is no evidence that the roadway was unfit for vehicular travel due to negligent maintenance by the State. The Court has previously considered accident statistics and citizen complaints in establishing the existence of a defective roadway and in determining the States actual or constructive notice of such condition. (See Roach v. State (1986), 38 Ill. Ct. Cl. 171; Stills, supra at 62-63; Kirby v. State (1990), 42 Ill. Ct. Cl. 77.) The evidence indicates that no accidents occurred at this location prior to decedents tragic incident and no complaints were received by IDOT. The photographic evidence also shows that the extreme outer edges of the roadway in both lanes were rougher than the condition of the lanes nearer the centerline.

Claimant argues that the size of the pothole complained of (approximately 24 inches long by 14 to 16 inches wide and 2 to 3 inches deep) is evidence of negligent inspection by Respondent and the existence of the pothole for a time period which would impute constructive notice to Respondent and a commensurate duty to repair the hole or warn of its existence. The facts herein are disputed as to the effect such a pothole would have on a motorcycle operating at the posted speed limit and are distinguishable from Claimants citations. Most notably, the expert testimony offered by Claimant is neither conclusive nor compelling and we lack occurrence witnesses. We are unwilling to make a finding of notice of the specific pothole complained of based upon the facts herein. As previously noted, Respondent has admitted knowledge of a rough surface and that signage was probably appropriate.

In order to recover, Claimant must prove by a preponderance of the evidence that the defect complained of was a proximate cause of the injuiy complained of. (Coiner v. State (1987), 40 Ill. Ct. Cl. 71.) Claimant has not met the burden of proof to establish proximate cause. As previously stated, Claimants expert witness testified that the pothole in question could cause such an accident. The testimony of Mr. Henry, although quite clear, is not conclusive. He speculated as to his observations and assumed the decedents vehicle made the skid marks and gouges he observed after the accident. Mr. Hemy did not see the accident and his relationship with the decedent must be considered in weighing his testimony. The testimony of Deputy Smith is somewhat contradictory as noted by Claimant. However, his testimony taken as a whole indicates that Deputy Smith did not believe the pothole identified by Mr. Henry constituted a defect which would cause such an accident. Testimony by Deputy Smith is also in conflict with Mr. Henry as to the position of skid marks at the scene.

The only eyewitness to the accident did not testify at hearing. Respondent sought to introduce the witness’s discovery deposition over Claimant’s objections. In the absence of authority for the introduction of the deposition testimony, said testimony shall be excluded from our deliberations.

Claimant’s decedent had traveled the same roadway the day before the accident and ergo, was aware of the general condition of the roadway. We have no direct evidence of what he saw or did immediately preceding the accident. Although the State may have been negligent in failing to erect warning signs as to the rough road surface, we cannot conclude that said negligence was the proximate cause of the accident.

Based upon the discussion above, we must regretfully deny the Claimants’ claims arising out of this tragic incident.

This cause is hereby dismissed.

ORDER

JANN, J.

This cause comes on to be heard on Claimants’ petition for rehearing and prior motion for extension of time to file their petition. The motion for extension of time is hereby granted instanter.

We have carefully considered Claimants’ petition and the record herein. Claimants have raised no issues which were not previously considered by the Court but argue that the Court erred in its assessment of the testimony and evidence herein as to notice of a dangerous road condition and proximate cause of decedent’s injuries.

We find Claimants have not proven either notice of the defect complained of or proximate cause by a preponderance of the evidence. The cases cited by Claimants to support a finding of liability based upon circumstantial evidence are distinguishable, though routinely cited by Claimants under similar fact scenarios. We note that Elkins v. State, 85 CC 3001 (unpublished opinion, July 30, 1979) which cited O’Shea v. Chicago Motor Coach Company (1946), 328 Ill. App. 457, 66 N.E.2d 482, involved a defect which had existed for some nine months. The award in O’Shea involved an injury to a bus passenger at a specific bus stop used many times daily by the bus company and the evidence indicated the defective pavement had been in such condition for a substantial period of time.

Sadly, the evidence herein when taken in a light most favorable to Claimants ii.e., disregard the disputed testimony of Deputy Smith and assume, arguendo, notice of the alleged defect by Respondent) still fails to reach a preponderance which would impute liability to Respondent.

As previously noted in our opinion of March 27., 1998, we have no direct, objective evidence of record as to the actual circumstance which caused decedent to lose control of his motorcycle. The citations relied upon by Claimants which make findings of liability in circumstantial cases rely upon the Claimants testimony or that of objective occurrence witnesses subject to cross-examination. We wish to note that Mr. Henry’s testimony is in no way impugned and that he was a most helpful witness in these proceedings. However, Mr. Henry did not see decedent lose control of his motorcycle and has no direct knowledge that decedent struck the pothole complained of and that the pothole caused decedent’s demise.

Mr. Henry’s observations and conclusions of causation though credible, are not fact but speculation and the circumstances are not of a nature which support a finding of inferred causation as no other logical premise for causation exists. Claimants seem to ultimately argue res ipsa loquitor to reach a finding of liability. As discussed in Rutledge v. State (1997), 44 Ill. Ct. Cl. 257, a Claimant alleging res ipsa loquitur must prove that his injury is of a nature which does not occur in the absence of negligent acts, was caused by an entity or instrumentality within the exclusive control of. the defendant, and was not due to negligence by Claimant. Claimants’ witnesses did not adduce evidence that would support a finding of liability absent speculation and conjecture by this Court.

Wherefore, we must affirm our prior opinion denying these claims and Claimants’ petition for rehearing reconsideration is hereby denied.


text:
    (No. 87-CC-3604
    Dennis Kelly, a minor by Suzanne E. Kelly, his mother and next friend, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 9, 1998.

    Sheldon Hodes & Assoc. (David M. Schrauth, of Counsel), for Claimant.
    James E. Ryan, Attorney General (Marina Popovtc, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

This matter comes before this Court on Claimants complaint against the State of Illinois, Department of Transportation seeking recovery for Claimants damages allegedly resulting from Respondents negligent maintenance of the roadway. The following facts were adduced at hearing and from the record:

During the pendency of this cause discovery was interrupted and numerous continuances were granted for consideration of a motion to dismiss, motion for summary judgment and motion for leave to file affirmative defenses. Trial was held on May 24, 1995, before Commissioner Elizabeth Rochford at which time additional time was allowed the parties for the taking and submission of evidence depositions. Claimants trial brief was received some 18 months later. Respondent also filed a post-trial brief.

On June 9, 1986, Claimant, 16-year-old Dennis Kelly, and a friend were riding their bicycles northbound on Arlington Heights Road between Route 83 and Algonquin Road. Prior to the Kennedy Expressway, Claimant was traveling on a pathway that ran alongside Arlington Heights Road. As Claimant approached the Kennedy Expressway underpass, he discovered that rocks covered the pathway preventing further travel. Claimant exited the pathway and continued northbound in the roadway. As Claimant began to accelerate he checked traffic over his shoulder and moved closer to the curb as he saw traffic approaching from behind. As Claimant looked back to the north he saw that a sewer grating was sunken. He testified that he did not have the time to react, and his bicycle tire dropped into the sewer grate. Photo exhibit number 6 shows that the sewer grate was several inches below the street level.

Claimant testified that he was thrown forward and sustained injuries to his face, mouth and ribs. Four photographic exhibits demonstrate his facial injuries. Following the accident Claimant was transported to Northwest Community Hospital where he was treated in the emergency room. Claimant received ten stitches on his upper left cheek near his eyelid. A slight scar remains near Claimants left eye and his cheek healed completely.

Claimant also suffered a tooth fracture to his upper front tooth that required removal of four old caps; two gold posts and a bridge were applied. Claimant testified that his left eyetooth was pushed up higher than it had been and that he was unable to complete all the dental work as proposed by the doctor due to financial constraints.

Claimant suffered bruising to his rib area; the discomfort lasted about one week.

Claimants mother, Suzanne Kelly, also testified that following the incident Claimant complained of a headache and soreness and difficulty breathing from his bruised ribs. In addition to the obvious cuts and scratches and swelling to Claimants face, she observed him having difficulty moving around and noticed that his teeth were not in the same alignment. Mrs. Kelly observed Claimants injuries began to heal in the next two weeks.

The total of doctor and medical bills introduced was $1,305.30.

Claimants submitted the evidence deposition of Dr. Robert B. Malek, D.D.S. (See evidence deposition of Dr. Robert B. Malek dated November 20, 1995.) Dr. Malek first treated Claimant on June 19, 1986. His examination revealed that one tooth was intruded, four others were displaced, four temporary crowns required replacement and a tooth was fractured under the gum line. He opined that the injuries were the result of a trauma sustained in the bicycle fall. Dr. Malek formulated a treatment plan which included crowning of fractured teeth, and extraction and replacement with a fixed bridge. He further planned to refer Claimant to an orthodontist for extrusion of the intruded tooth and a possible crown.

During two visits Dr. Malek prepared the tooth to accept post and cores, a three-unit bridge and a crown. An extraction was performed and the bridge and crowns were permanently bonded.

The cost of Dr. Maleks services was $95 on June 19, 1986, $1,885 on September 15, 1986, and $130 on October 25,1986, for a total of $2,111.

Claimant did not receive any of the orthodontic treatment prescribed. However, Dr. Malek testified that the reasonable expectation of cost for the services would be $5,130.

The Respondent produced their departmental report which concluded that Illinois Department of Transportation was responsible for the maintenance of the roadway and their investigation revealed no prior accidents reported at the subject location.

Respondent produced the sworn affidavit of Joseph J. Kostur, safety and claims manager for IDOT. He testified that the area in question was the maintenance responsibility of IDOT but stated that the area was not intended for bicycle travel or traffic. He cited the Illinois Vehicle Code, chapter 9514, article XV, section 11 — 1505, requiring bicyclists to travel upon the paved portion of roadway only. Kostur further cited Illinois Revised Statutes, chapter 121, article 2, par. 2 — 214 and asserted that the duty of IDOT to maintain the section of highway is owed to “vehicular” traffic only. The witness concluded that IDOT does not owe a duty to the Claimant cyclist.

Respondent produced Andrew H. Tudor, an expert engineer for evidence deposition. (See evidence deposition of Andrew H. Tudor, June 22, 1995). Tudor testified that on February 24, 1993, he conducted an inspection and investigation of the incident site. He described a five-lane concrete street with a curb and a bar sewer grate 23 inches long and 13 inches wide located on the curb apron at street level. The sewer grate consists of four bar slats approximately one and three-eighths inches apart from each other. The bars are parallel to each other and the street, designed for hydraulic efficiency.

Tudor described the traffic pattern as very aggressive and testified that this particular type of grating is preferred in this type of area because they don’t “plug up” as easily and they pass much more water more quickly. He noted that efficient disposal of the water is particularly important where, as here, cars are traveling at high rates of speed.

Tudor cited portions of the American Association of State Highway and Transportation Officials “Roadside Design Guide.” The authority provides that drainage structures provide hydraulic efficiency while creating a minimum vehicle hazard. In regard to bar orientation the Design Guide directs that special precautions should be taken to assure that bicycle and/or motorcycle tires will not fall through the openings when inlets are placed in urban areas.

Tudor testified that the subject area is hazardous to bicycle traffic and identified a footpath about 100 feet away as an alternative travel path. However, Tudor also acknowledged that his investigation was conducted in the winter months nearly seven years after the incident. He further acknowledged that he did not know the condition of the area at the time of the incident in June, 1986.

The Law

The State owes a duty to all users to maintain its roadways in a reasonably safe manner for motorists. That duty also applies to bicyclists and riders of motorcycles. The States duty to the public is to use reasonable, ordinary care to maintain its roads. (Walter v. State (1989), 42 Ill. Ct. Cl. 2, 4.) The Court has repeatedly ruled that in order to recover Claimant must prove by a preponderance of the evidence that a dangerous condition existed, that Respondent knew of the condition and that the condition proximately caused the incident. Tour Loukis v. State (1995), 47 Ill. Ct. Cl. 155, 157-8; Scarzone v. State (1990), 43 Ill. Ct. Cl. 201.

The State must have either actual or constructive notice of the defect. (Immordino and Cartage v. State (1995), 47 Ill. Ct. Cl. 78, 80.) To establish constructive notice it must be shown that the road defect was substantial enough and existed for such a length of time that reasonable persons would conclude that immediate repairs or warning signs were necessary. (Immordino and Cartage v. State at 80.) Each and every case involving constructive notice must be decided on its own particular facts. Stills v. State (1989), 41 Ill. Ct. Cl. 60, 62.

In the factually similar case of Schneider v. State, 47 Ill. Ct. Cl. 268, Claimants bicycle struck a sewer grate as she attempted to avoid a passing vehicle. The bicycle tire lodged in the sewer grate causing Claimant to flip over the handle bars causing her to suffer facial and teeth injuries. The Court rejected Claimants assertion that notice is automatic because the parallel grate is open and obvious. The claim was denied for lack of notice.

In Cole v. City of East Peoria (3rd Dist.), 201 Ill. App. 3d 756, 559 N.E.2d 769, the Appellate Court found constructive notice where, among other factors, the area was used extensively by bicyclists, another bicyclist had been injured when his wheel had fallen through a similar grate and where the grates had been broken or damaged and had been replaced with new grates containing safety features. Cole, 201 Ill. App. 3d at 761; 559 N.E.2d at 773.

In this case Claimant was riding on a footpath adjacent to the highway. Claimant moved his bike to the roadway when he was unable to proceed any further on the obstructed foot path and continued riding. As Claimant turned to check for traffic the front tire of his bicycle fell into, the sewer grate and he was thrown from his bicycle.

The evidence established that the Respondent owned and maintained the highway in question. It has further been determined that the Respondent owes a duty to bicyclists legally traveling upon the roadway. Claimant’s complaint is based upon failure to maintain the grating in question. No direct evidence indicates that the grate was, in fact, defective due to damage or age or was not in compliance with applicable IDOT standards. The “Design Guide” referenced by Respondent’s witness, Andrew Tutor, and relied upon in Claimant’s argument was not proved to be controlling of the maintenance of the grate in question. Claimant stated the grate appeared “sunken” about three inches. We lack evidence as to whether this depression was designed or occurred through wear and tear. The photos introduced are not dispositive of this issue. No evidence was produced which would have mandated replacement of the grate by IDOT in the course of normal maintenance of the roadway.

Claimant did not produce any evidence to establish that Respondent had actual notice of the danger. Further, the evidence presented does not support a finding of constructive notice. There was no evidence to establish that this busy highway was regularly frequented by bicyclists or posed a danger to them. The fact that the parallel grate is open and obvious does not automatically create notice to the Respondent of a dangerous condition.

The Claimants failure to establish either actual or constructive notice of the dangerous condition precludes recovery in his matter. This claim is hereby denied.


author: JANN, J. Jann, J.

text:
    (No. 88-CC-0333, 89-CC-0416 cons.
    Jada Johnson, Claimant, v. The State of Illinois, Department of Transportation, Respondent.

      Opinion filed June 12, 1997.

      Order on petition for rehearing filed December 26, 1997.

    Brian J. McManus & Associates (Jada Johnson, of counsel) and William K. Hedrick (Barry K. Fortner, of counsel), for Claimants.
    James E. Ryan, Attorney General (David Rodriguez, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

Claimants Jada Johnson and Barry K. Fortner brought claims individually against the Respondent, State of Illinois, Illinois Department of Transportation (IDOT) for personal injuries suffered as a result of a vehicle accident on a State highway. On June 14,1995, the cases were consolidated by order of Court and trial was held on November 1, 1995, before Commissioner Elizabeth Rochford in Chicago, Illinois.

The facts are as follows:

Claimants Jada Johnson and Barry Fortner worked together at Sages Restaurant on State Street in Chicago. Claimant Johnson reported to work on August 12, 1986, at approximately 3:00 or 4:00 p.m., and on August 13, 1986, the Claimant got off work at approximately 1:30 a.m. and went out with other co-workers to several bars. They arrived at the first bar at approximately 4:30 a.m. Claimant Johnson testified that she had about one beer and then went to another bar where she had about three beers. At approximately 6:30 a.m., Claimant Johnson drove several other co-workers home and attempted to drive Claimant Fortner home. Fortner had fallen asleep and Johnson got lost. Johnson stopped to get directions at a gas station and returned to southbound Interstate 94. At approximately 9:00 a.m., the Claimant’s vehicle struck a State truck parked partially on the roadway.

Claimant Johnson has no recollection of the events immediately preceding the accident or of the accident itself due to a head trauma she suffered in the accident. Claimant Fortner had no recollection of the accident because he was asleep at the time of the collision.

Claimant Johnson presented the independent eyewitness testimony of Jose Castillo. Castillo testified that he was traveling southbound on 1-94 near 130th Street at approximately 9:00 a. m. The weather was dry and clear.

Castillo was driving in the middle of three lanes when he observed Claimants car strike an orange State of Illinois maintenance truck. Castillo testified that the State truck was parked half on the roadway and half on the shoulder of the innermost southbound lane. Castillo did not see any advance warnings of the truck such as flashing lights or signs. Castillo testified that Johnsons vehicle attempted to move into the center lane just prior to the accident. He opined that Johnsons vehicle didn’t have enough advance warning to get over in time. Castillo’s vehicle was in the center lane, thereby preventing Johnson from merging to avoid the accident.

Claimant Johnson testified that, as a result of the accident, she suffered fractures in her lower back, a punctured lung, broken ribs, a broken right arm and severed tendons and muscles in her left leg.

Claimant Johnson testified that the injury tó her right arm and left leg required surgical repair. Johnson complained of chronic tendonitis and weakness in her right arm and left leg, and difficulty in lifting and climbing stairs. Her dancing career was ended. She demonstrated a five-inch scar on her left leg.

Frankie DeFries, Claimant Johnson’s mother, testified on behalf of her daughter, Jada Johnson. Mrs. DeFries testified that, prior to the accident, Claimant Johnson was in excellent health; she was a dancer and worked as a dance teacher. Her dancing included tap, ballet and acrobatics.

Following the accident, Mrs. DeFries was summoned to Christ Hospital where she was advised that Johnson had suffered a ruptured heart, a deflated lung, broken wrist bones, an injured left leg and facial injuries. DeFries testified that she observed her daughter in extreme pain as a result of the injuries from the accident and, since that time, Mrs. DeFries regularly observes Johnsons restricted ability to climb stairs and Johnson’s need for assistance in caring for her child.

DeFries further testified that due to her injuries, Johnson was off work from August 13, 1986, to January 12, 1987, and for an additional 19 days in 1988 for additional medical treatment related to the accident.

Claimant Johnson presented medical bills totaling $43,099.85 and claims $10,738 in lost wages.

Claimant Fortner testified that, as a result of the accident, he suffered a broken nasal bone, a broken collar bone, a punctured right eyelid, blood in his right eye, a concussion with brain stem injury to the left side of the head, a permanent three- to four-inch scar on the left side of his head, in addition to lacerations and scarring to his legs. Claimant suffered a loss of sensation to his right hand, foot, and the right portion of his lip, which persisted to the date of trial.

Claimant Fortner further testified that he was an accomplished artistic roller-skating champion, acquiring professional status and certification as an instructor. As a result of the injuries sustained in the accident, Claimant has been unable to coach or perform as a skater.

Claimant further incurred hospital expenses in the amount of $17,456.25 and claims $6,000 in lost wages.

The Respondent produced Clifton Jones, highway maintainer for IDOT. He testified that on August 13, 1986, at approximately 9:00 a.m., he and other highway maintenance personnel were beginning to establish a lane closure on southbound 1-94. The first step was to position the trucks in the lane closure area, then to place the sign which warns “roadwork ahead,” and then the placement of cones to establish the lane closure.

On the morning of the incident however, the crew was in the process of setting up the sign when the accident took place. At the time of the accident, two State trucks were at the scene: the “cone truck” and the “backup truck.” The cone truck was first and was completely occupying the outside lane, followed by the back-up truck, approximately ten feet behind, which was partially occupying the outside lane and partially occupying the shoulder. Jones was standing between the two trucks at the moment of impact, but stated that the back-up truck had red four-way flashers, a yellow dome light, a “keep right” sign, a yellow arrow directing traffic to the center lane and a flagman positioned behind the back-up truck.

Jones testified that he observed the Claimant’s car approaching the trucks. He stated that the car had its turn signal on and was attempting to merge into the center lane but was unable to merge and struck the back of the back-up truck. Upon impact, the car flipped over. The rear axle of the back-up truck was broken and the truck was pushed between five and seven feet forward.

Jones acknowledged that no signs or cones had been placed in the roadway at the time of the accident, as the workers were in the process of placing the first sign. Jones testified that the sign placement procedures is a “moving operation/’ and that the preliminary purpose of the arrows and signs on the rear of the back-up truck is to slow traffic to allow the crew to place the signs and cones.

Jones further testified that there is a third “warning truck” approximately 2,000 feet behind the back-up truck. He testified that he couldn’t “see” the third truck at the time of the accident, but that all three trucks had left the garage at the same time and that he was sure the third truck was in its assigned position. The purpose of the warning truck is to serve as the first notice to motorists of the upcoming roadwork. The procedures employed were consistent with the applicable IDOT manual.

Trial briefs were prepared and filed by all parties.

The issue is whether the Respondent was negligent in failing to provide reasonably safe conditions for persons using the State highway.

To sustain a claim of negligence, a Claimant must establish a duty owed by the Respondent to the Claimant, a breach of that duty and an injury proximately caused by the breach. Kraemer v. State (1990), 42 Ill. Ct. Cl. 236, 245.

It is the duty of the State to exercise reasonable care in the maintenance and care of its highways in order that defective and dangerous conditions likely to injure persons lawfully on the highways shall not exist. (Kraemer v. State, supra at 245.) The State is under a duty to warn travelers of a dangerous condition by erecting proper and adequate signs at a reasonable distance. The State’s failure to properly warn constitutes negligence. (Starcher v. State (1983), 36 Ill. Ct. Cl. 144, 146.) However, the State is not the absolute insurer of all persons traveling upon its highways. (Kraemer v. State, supra at 245.) The law further dictates that where persons are approaching a place of danger, they have a duty to do so cautiously and with a proper degree of care for their own safety. Coulson v. State (1993), 46 Ill. Ct. Cl. 149, 160.

In Garland v. State (1992), 45 Ill. Ct. Cl. 18, Claimant and her passenger were injured when their vehicle rear ended a State vehicle parked in the roadway. The State vehicle had responded to an accident, the emergency lights on the truck had been activated and flares had been placed on the roadway. In denying the claim, the Court concluded that the injuries resulted from the Claimants inattentiveness. Garland v. State, supra at 18.

In Harris v. State (1986), 39 Ill. Ct. Cl. 176, Claimants two semi-trailer trucks were involved in a rear-end collision with each other as they approached a State snowplow in the process of snow removal. The amber beacon light on the snowplow was operating at the time of the accident. The court concluded that the accident was caused by the negligence of the drivers for failure to watch the traffic, drive more slowly and keep a proper distance between vehicles. Harris v. State, supra at 176.

The driver of a vehicle has a duty to keep a look-out and see those things which are obviously visible. (Harris v. State, supra at 178; Kohut v. State (1980), 33 Ill. Ct. Cl. 6.) Pursuant to the Illinois Vehicle Code (Ill. Rev. Stat., ch. 951/2, par. 11 — 601) drivers have a duty to drive at reasonable and proper speeds so as not to endanger the safety of persons or property, and to decrease speed where necessary to avoid colliding with persons or vehicles. Further, the Vehicle Code prohibits drivers from following vehicles ahead more closely than is reasonable and prudent in light of speed, traffic and highway conditions. Ill. Rev. Stat., ch. 9514, par. 11 — 710.

The Claimants in this case argue that the Respondent placed a stopped truck partially on and partially off of the State roadway, thereby creating a potentially dangerous condition. Claimants contend that the Respondent failed to warn the motorists of the danger, thereby causing the accident and the Claimants’ resulting injuries.

The Claimant had worked approximately ten hours as a waitress. She proceeded to go out with friends for another five hours, during which time she consumed four beers. For the next two hours, she drove various people home, and ultimately she became lost and involved in the accident.

The cause of the accident appears to have been a combination of factors. Claimant was tired, and she became lost. She obviously saw the State truck in the roadway because she put on her turn signal and attempted to move out of the lane. Claimant was apparently driving too fast, with too little attention to the obvious signs of roadwork, and was unable to stop quickly enough or safely merge into the center lane.

The sign, flashing lights, illuminated arrow and flagman in this case evidence a proper and sufficient warning of the lane closing in progress. There is not sufficient evidence to establish negligence on the part of the Respondent.

Based on the foregoing, the claims of Jada Johnson and Barry K. Fortner are hereby denied.

ORDER

Jann, J.

This cause comes on to be heard on the petitions of Claimants for rehearing. Claimants’ claims were denied by order of June 12, 1997.

We have carefully reviewed Claimants’ petitions and the record herein. Claimants’ petitions assert that the Court reached an incorrect conclusion as to liability. Claimants contend that the testimony of Jose Castillo, an eyewitness, is both favorable and persuasive as to Claimants’ allegations of negligence by Respondent.

Mr. Castillo’s testimony indicated he did not have clear recollection of the incident and only saw Claimant when impact occurred. Neither Claimant recalls the accident. No testimony or evidence of record indicated that the Illinois Department of Transportation deviated from its normal procedures or that said procedures were hazardous by nature. The testimony offered does not support a finding of negligence by Respondent.

As Claimants have introduced no new evidence to support their contention, we shall rely upon the record in our review of the findings. The record includes the hearing transcript, all pre-trial pleadings and post-trial briefs.

A thorough review of the record indicates that the Court properly weighed the evidence presented. Claimants’ petitions appear to disregard the testimony of Mr. Castillo on cross-examination at hearing. A fair reading of the testimony as a whole does not support a finding in favor of Claimants.

Rased upon our review, Claimants’ petitions for rehearing are hereby denied. Claimants have failed to meet their burden of proof.

This cause is hereby dismissed with prejudice.