author: Patchett, J.

text:
    (No. 80-CC-1427
    Ricky Smith, Carol Smith, Quintessa Smith, Cathy Richmond and Wayne Richmond, Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 9, 1990.

    Charles Aron, for Claimants.
    Neil F. Hartigan, Attorney General (Arla Rosenthal, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This claim arises out of an accident which occurred on February 23,1979. The Claimant driver, Carol Smith, was proceeding eastbound on Interstate 55, an elevated interstate highway in Chicago, Illinois. The Respondent, the Illinois Department of Transportation, was responsible for the maintenance of the aforesaid highway. On or about 1700 West, the Claimant struck ice in the road, lost control of her automobile, and exited the elevated highway. Her automobile struck a snow ramp which had been caused by the continued plowing of snow and dumping it on the elevated highway. Pictures produced at trial showed clearly that the snow, having been piled in the manner above indicated, had partially melted and truly produced an inclined ramp from the driving surface of the highway leading up to the top of the retaining wall.

The evidence clearly established that the Claimant’s automobile struck this ramp, then went up the ramp and over the top of the retaining wall. It then fell approximately 60 feet, landing upside down in an automobile salvage yard. Passengers in the automobile included the Claimant’s children, Ricky Smith and Quintessa Smith. In addition, there was a Cathy Richmond and her son, Wayne Richmond, in the automobile. Injuries, as might be surmised, were extensive.

After filing the case on February 20,1980, discovery commenced and continued through July 1982. Thereupon, the case was set for hearing several times. A hearing was finally held before a Commissioner of this Court on September 7, 1983. Claimants filed briefs on January 17, 1984, and February 6, 1984. Respondent filed a brief on March 25,1985. Respondent then filed a motion to continue generally on May 13, 1985. Interestingly, in the aforesaid motion to continue generally, the reason for the requested general continuance was a lawsuit filed against the Claimant driver, Carol Smith, by Claimants Cathy and Wayne Richmond, then pending in the circuit court of Cook County. According to the rules of the Court of Claims, the case was therefore put on the general continuance docket. On September 24,1987, a notice of hearing on this claim was again filed. Several other items of correspondence were transmitted between the parties, and the Commissioner’s opinion and recommendation was finally rendered on April 10, 1989. Oral argument was then had before the entire Court on July 18, 1989.

Much was made of the extreme weather conditions of the winter of 1978-1979. It is clear that it was an extraordinarily bad winter in Cook County, and it required great measures by the Department of Transportation, as well as other city, county, and local highway departments.

In its brief, the Respondent has attempted to defend this case by raising several issues. The first issue raised is whether or not the State had notice, either actual or constructive. As the Claimants pointed out in their brief and in the record, for a period of a few weeks immediately prior to the accident involving the Claimants, approximately eight vehicles exited the stretch of elevated highway close to the site of this accident, resulting in at least one death. These accidents were reported prominently in the press, and police reports were immediately made regarding these accidents. Despite this, the Respondent has urged this Court to find that they had no actual or constructive notice of the conditions leading up to this accident.

A very similar lawsuit was decided by this Court regarding an accident which took place on the same highway, during the same winter. That was the case of Mavraganis v. State, (1984), 36 Ill. Ct. Cl. 153. The final opinion was filed May 9, 1984. From that case, it was evident that the State did not raise the notice issue. In any event, after careful consideration of the record, it is clear to this Court that the Respondent had actual and constructive notice of the conditions of the highway in question.

Although this Court has repeatedly held that the State Highway Department is not the insurer of highway conditions, it is also clear that the State has a duty to keep the highways reasonably safe. (See Borum & Emmco Insurance Co. v. State (1969), 26 Ill. Ct. Cl. 328.) In addition, the State has a duty to warn traffic of the existence of unsafe conditions. Rickelman v. State (1949), 19 Ill. Ct. Cl. 54.

While it may have been very difficult for the State to correct the conditions present at the time of this accident, it would not have been difficult, nor would it have been impossible, for the State to obtain the equipment necessary to warn individuals about the highway’s condition. In addition, the State admitted in its own brief and argument that the design of the highway contributed in large part to the construction of the ice ramp in question. Therefore, we find that the State did have a duty to warn traffic of the existence of the ice ramp and the consequences of striking the ice ramp. For the purposes of this case, we also find that this duty applied to the road, as well as to the shoulder of the road. (See Berry v. State (1968), 26 Ill. Ct. Cl. 377.) In addition, while maintaining and designing the roads in the State of Illinois, the Respondent has a duty to exercise reasonable care so as not to create additional hazards. (See Bleau v. State (1972), 28 Ill. Ct. Cl. 39.) It is clear to this Court that in the present case, the plowing of snow ultimately resulted in an extremely hazardous ice ramp condition.

As to the Claimants Richmond, it is also clear that they did pursue the remedy against the driver Smith in circuit court, despite claims made to the contrary in the Respondent’s brief. The claims in the Respondent’s brief are made more interesting by the fact that, as previously expressed in this opinion, this case was placed on the general continuance docket as a result of the lawsuit against driver Smith by Claimant Richmond. Therefore, the Respondent must have been aware at some point that the Cook County lawsuit was proceeding. In any event, this case was ultimately settled and not tried. However, as this Court held in Dellorto v. State (1979), 32 Ill. Ct. Cl. 435, settling a claim in another court, rather than pursuing the case to trial, does not violate the requirement that the Claimant exhaust all other remedies before coming to the Court of Claims.

If this case were to be tried under a contributory fault standard, it would be clear that the driver was barred from recovery because of contributory negligence. However, this contributory negligence could not and would not be imputed to the passengers. In addition, after the accident in question, comparative fault became the rule in Illinois. Since the trial was held after the effective date of comparative negligence in Illinois, we will apply that method to this case.

The final interesting issue raised by the Respondent is that of proximate cause. The Respondent would have us believe that if the State’s negligence was not the sole proximate cause, then recovery is prohibited. We would urge consideration of Illinois Pattern Jury Instructions, Civil, No. 50.01. That jury instruction reads as follows:

“When I use the expression “proximate cause”, I mean [that] [a] [any] cause which, in natural or probable sequence, produced the injury complained of. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.]”

It is obvious by referring to the Illinois Pattern Jury Instructions and the comments and note therein, that proximate cause of the State need not be the only cause. It is clear that the actions and omissions to act of the State in the present case, combined with actions of Claimant Carol Smith, caused the injury to the parties herein.

Therefore, for the reasons stated, we find liability on the part of the Respondent and in favor of the Claimants.

Damages are significant. Quintessa Smith and Wayne Richmond were the least seriously injured of the Claimants. However, Quintessa Smith, a very young child, clearly suffered a cerebral concussion and a fractured right clavicle. We award Claimant Quintessa Smith the sum of twenty thousand dollars ($20,000.00).

Claimant Wayne Richmond suffered a fractured right forearm and a concussion. We award him twenty thousand dollars ($20,000.00).

Claimant Ricky Smith was severely injured. He suffered a fractured skull, upper arm and thigh. The Court is convinced he had significant emotional suffering. He suffered hair loss, developed problems at school, and required psychological treatment. Pain and suffering had to be severe. We award Ricky Smith the sum of one hundred thousand dollars ($100,000.00).

Claimant Cathy Richmond suffered a pelvic fracture and separation of the clavicle, stayed in the hospital 2/2 weeks, and had a substantial period of disability. Pain and suffering and discomfort were significant. We award Cathy Richmond the sum of fifty thousand dollars ($50,000.00).

Claimant Carol Smith, the driver of the automobile, is a more difficult situation. Carol Smith received a fractured femur, lacerations requiring stitches, and soft tissue injuries. She was placed in traction requiring drilling, and an internal attachment to her knee. Surgery was ultimately performed, and a pin was then implanted in her leg. The possibility of future developments as a result of this injury are significant. Mrs. Smith’s hospital bills were in excess of fifteen thousand dollars ($15,000.00), and she was forced to be away from her family and normal duties for a significant period of time. However, Carol Smith also must face the consequences that she was partially at fault for this accident. As a result, we award Carol Smith the sum of one hundred thousand dollars ($100,000.00), find her to be 40% negligent, and reduce her award to sixty thousand dollars ($60,000.00).

The Respondent has urged us to set off any awards by the amount of medical bills paid in this case. He urges us to do this on the basis of the collateral source rule used in National Bank of Bloomington v. State (1980), 34 Ill. Ct. Cl. 23. This Court has recently changed its stand regarding a collateral source. (See Sallee v. State (1990), No. 81-CC-2348, 42 Ill. Ct. Cl.__) However, it appears uncontradicted in this case that the medical bills in question were paid by the Illinois Department of Public Aid. Medical bills paid by the Respondent clearly should be deducted from the amount of any award given to the Plaintiffs.

Therefore, we reduce the award of Claimant Carol Smith by the sum of fifteen thousand three hundred eighty seven dollars and eighty cents ($15,387.80), Claimant Ricky Smith by the sum of eleven thousand nine hundred seventy eight dollars and fifty cents ($11,978.50), Claimant Quintessa Smith by the sum of one thousand five hundred eighty two dollars and seventy five cents. ($1,582.75), Claimant Cathy Richmond by the sum of four thousand three hundred eighty dollars and ten cents ($4,380.10), and Claimant Wayne Richmond by the sum of one thousand six hundred fifty seven dollars and seventy five cents ($1,657.75).

In addition, any award to Claimant Cathy Richmond and/or Claimant Wayne Richmond must be reduced by the amount that they recovered in then-earlier civil lawsuit against Carol Smith. Wayne Richmond settled his case for seven thousand four hundred dollars ($7,400.00), and Cathy Richmond settled her case for thirty two thousand six hundred dollars ($32,600.00). Therefore, we reduce the award of fifty thousand dollars ($50,000.00) given to Claimant Cathy Richmond by the sum of thirty two thousand six hundred dollars ($32,600.00). In addition, we reduce the award given to Claimant Wayne Richmond by the sum of seven thousand four hundred dollars ($7,400.00).

To the extent that the opinion issued in Mavraganis is inconsistent with this opinion, we overrule it.

For the foregoing reasons, we award the Claimants the following sums:

To Claimant Quintessa Smith, we award the sum of eighteen thousand four hundred seventeen dollars and twenty five cents ($18,417.25);

To Claimant Wayne Richmond, we award the sum of ten thousand nine hundred forty two dollars and twenty five cents ($10,942.25);

To Claimant Ricky Smith, we award the sum of eighty eight thousand twenty one dollars and fifty cents ($88,021.50);

To Claimant Cathy Richmond, we award the sum of thirteen thousand nineteen dollars and ninety cents ($13,019.90); and

To Claimant Carol Smith, we award the sum of forty four thousand six hundred twelve dollars and twenty cents ($44,612.20).


source: Caselaw Access Project

author: Sommer, J.

license: Public Domain

text:
    (No. 80-CC-2051
    Harry Slagel et al., Claimants, v. The State of Illinois, Respondent.

      Opinion filed February 6, 1990.

    Gooding & Schroeder, Ltd. (John L. Schroeder, of counsel), for Claimants.
    Neil F. Hartigan, Attorney General (Saul Wexler, Special Assistant Attorney General, of counsel), for Respondent.
   Sommer, J.

This action was brought by Harry Slagel, individually and in his capacity as father and next friend of his three minor children, Andrew Slagel, Bonnie Slagel and Larry Slagel, his wife Sandra, and their adult son, Allan. They seek damages for personal injuries sustained by them in a vehicular collision that occurred on August 13, 1979, in Coral Township, McHenry County, Illinois.

Hearings were held before Commissioner Everett C. McLeary of the Court of Claims.

Following the close of Claimants’ evidence, Respondent moved and subsequently filed its motion for judgment pursuant to section 2 — 1110 of the Illinois Code of Civil Procedure. Because of the bifurcated nature of the Court of Claims, it was agreed that Respondent would proceed to introduce evidence without waiving the timeliness or the substance of its motion.

In midafternoon, on August 13, 1979, six members of the Slagel family (hereinafter “Claimants”), while returning home after a visit to the Railroad Museum in Union, Illinois, were injured when their car collided with a van. The collision occurred on Route 20,1.5 miles west of its intersection with Church Road. The Claimants’ family car, a 1978 Chevrolet Impala, four-door sedan, was driven by Allan Slagel, then 19 years old. The van was owned by P.O. Knuth, Inc., and driven by Gus Ritter.

The Claimants filed a lawsuit in the nineteenth judicial circuit, McHenry County, Illinois, against P.O. Knuth, Inc., Gus Ritter, the County of McHenry, the McHenry County Superintendent of Highways, Coral Township Highway Commissioner, and the sheriff of McHenry County, under case no. 79-L-248. This action was ultimately settled and certain covenants not to sue and releases were executed. Claimants then brought this action against the Illinois Department of Transportation and the Illinois State Police.

The Slagel car was traveling eastbound on Route 20 at a speed of 50 to 55 m.p.h. The accident occurred approximately 1.5 miles west of Route 20 at its intersection with Church Road. Just west of the accident scene there is a slight hill, at the crest of which the road makes a right-hand curve. The evidence and testimony indicate that as Allan drove the Slagel car down the slight incline of the hill, the car was in the westbound lane. Ritter was driving his van westbound along Route 20. Upon seeing the Impala coming directly at him, Ritter swerved into the eastbound lane in order to avoid the Claimants’ car. At that moment, Allan apparently recovered control of his vehicle and tried to return the car to the eastbound lane. About 50 feet from the crest of the hill, the two vehicles collided.

Claimants’ action rests on their contention that the accident was proximately caused by a missing sign that would have warned Allan of the right-hand curve.

Claimants offered the testimony of Thomas O’Donnell to support their claim that the curve sign was missing. O’Donnell, a personal friend of Claimants’ attorney, went to the accident scene several weeks after the incident and testified that there was no curve sign at that time. He took photos of the sign laying on the ground. O’Donnell claimed that he telephoned the Woodstock Department of Transportation facility and reported the downed sign after his trip to the scene. However, the Department’s records do not reflect a report having been made. The Department’s records show that the only time this particular sign was reported down was in the fall of 1980, and it was replaced. No testimony was presented that would tend to show the sign in place at the time of the accident.

Joseph J. Kostur, director of safety and claims for the Department of Transportation, testified on behalf of the Respondents. His testimony reveals other facts pertinent to the condition of this particular stretch of road. On August 1,1979, the road had just been restriped with “no passing” lines. In July 1980, the Department did a ballpark test which showed the curve had a reading of 6 at the speed of 55 m.p.h. A reading of 6 at this speed means that 55 m.p.h. is a safe speed at which to negotiate that curve. In addition to the “no passing lines” on the road, in the area just preceding the accident there were also a “no passing zone” sign, two curve signs (one for the immediately preceding curve), and a 45 m.p.h. speed advisory plate. These signs were in place at the time of the Slagel accident.

The State trooper who appeared at the scene shortly after the accident testified that the curve could safely be driven at 65 m.p.h., and that the speed limit at the time was 55 m.p.h. The trooper stated that it was his opinion, based upon seven years of investigating accidents as a police officer, that the cause of the Slagels’ accident was inattentiveness on the part of their driver. He also testified that there were no other accidents at that site prior to the one in question.

In order for the Claimants to prevail in their claim for damages, they must first prove that the alleged defective condition existed and then prove the following elements: that the State had actual or constructive knowledge of the condition, that the proximate cause of the alleged injuries was the State’s failure to remedy the condition and, that Claimant was free from contributory negligence. Cataldo v. State (1983), 36 Ill. Ct. Cl. 24.

Claimants’ complaint filed herein alleges two alternative theories of liability: that the Department of Transportation was negligent in its maintenance of highway signs along Route 20, or that the State police were negligent in their inspection of the same. With respect to the latter theory, it became apparent that this was the duty of the McHenry County Sheriff.

The State is not an insurer against all accidents on highways. The State only has a duty to keep the highways reasonably safe for ordinary travel by persons using due care and caution for their own safety. Mackowiak v. State (1982), 35 Ill. Ct. Cl. 315, 317.

In this case, the Claimants are alleging that the State should have known that the curve sign was missing — in other words, constructive knowledge should be imputed to the State. This allegation assumes that the absence of the sign with constructive knowledge would amount to negligence. It is with this contention that this Court disagrees. The parties have made much of whether the curve sign was present at the time of the accident, and the Claimant has introduced some evidence going to show that such sign was down, while the State has shown that it had no actual knowledge of such. The facts are that the road was hilly and curvy, that numerous warning signs and markings existed in the area preceding the accident site, that the State police and the Department of Transportation testified that the curve was safe at a somewhat higher speed than posted. These warnings were sufficient to put the driver on notice that care in that particular section of road was necessary. Additionally, the curve was not necessarily dangerous for someone going somewhat faster than the posted limits. Therefore, this Court finds that the absence of the sign, even if proven, did not create a hazard for a driver exercising due care and caution in light of the previous warnings and general conditions prevailing. Thus, negligence cannot be imputed to the State. Because of our ruling, we will not consider the issues of constructive notice, proximate cause, or the possible negligence of the driver who had already driven the same stretch of road earlier in the day. The motion of the Respondent is hereby granted. The claims of the Claimants are hereby dismissed.


author: Raucci, J.

text:
    (No. 81-CC-0509
    Alton Community Unit School District No. 11, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 27, 1990.

    Thomas, Mottaz, Eastman & Sherwood (C. Dana Eastman, Jr., of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Frank A. Hess, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

The Claimant, Alton Community Unit School District No. 11, brought this complaint seeking recovery from the State in the amount of $41,897.10. At the hearing, Claimant’s Group Exhibit 2 indicated that total damages were $41,590.74.

Claimant is the occupant of a facility known as the J. B. Johnson Career Development Center (also known as the Alton Area Career Development Center.) The facility was constructed pursuant to a joint venture between Claimant and the Capital Development Board. The certificate of final completion was issued on August 3, 1976. The facility consisted of two buildings, namely, the academic building and the shop building. This claim is for indemnification for work performed by Claimant on the shop building.

On September 12, 1978, there was a fire at the academic building. It was determined that the damage had been caused by negligently installed underground electric cables. J. F. Incorporated, the contractor for the electrical work at the facility, agreed with Claimant that the cables would be replaced at the expense of J. F. Incorporated’s insurance company. Subsequently, the wiring leading to the shop building was tested and found to be faulty.

On September 19, 1978, the work began on replacing the underground electrical cables for the shop building. All cables leading from the shop building to the transformer were replaced.

There is no evidence that Claimant has pursued, or sought, recovery from the electrical contractor, J. F. Incorporated. The record also does not indicate whether Claimant attempted to recover damages from Keeney & Stolze, the architectural firm responsible for the design and having substantial supervisory responsibility during the construction of the facility. There is no evidence that Claimant pursued recovery from the general contractor, S. M. Wilson.

The State argues that the Claimant has failed to exhaust all alternative remedies prior to bringing this claim. Section 25 of the Court of Claims Act states, “Any person who files a claim in the court shall, before seeking final determination of his or her claim, exhaust all other remedies and sources of recovery whether administrative or judicial * * (Ill. Rev. Stat. 1987, ch. 37, par. 439.24 — 5.) In addition, the Court of Claims Rules specify that “the Claimant shall before seeking final determination of his claim before the Court of Claims exhaust all other remedies, whether administrative, legal or equitable.” 74 Ill. Adm. Code 790.60.

In support of its argument, the State cites Lyons v. State (1981), 34 Ill. Ct. Cl. 268. In reply, Claimant argues that this case is an exception to the exhaustion of remedies requirement. Claimant cites Peccarelli v. State (1978), 32 Ill. Ct. Cl. 105 in support of the proposition. We reject Claimant’s position that under Peccarelli, the electrical contractor, the architectural firm and the general contractor are agents of the State.

In Peccarelli, the Claimant entered into a contract with a non-State agency to conduct a study of the authority of State’s Attorneys. The contract was funded by the Law Enforcement Commission, a State agency, and the non-State agency was required to follow Commission (and State) guidelines and spend the money for the study.

Based upon the record established in this matter, the Court finds that Claimant should have pursued all other remedies prior to the presentation of this claim. The Court finds the decision in Lyons to be controlling on this issue and the decision in Peccarelli to be clearly distinguishable.

It is therefore ordered that this claim be, and hereby is, denied.


text:
    (No. 81-CC-1301
    Senn Park Management Associates, d/b/a Senn Park Nursing Center, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 30, 1990.

    Vedder, Price, Kaufman & Kammholz, for Claimant.
    Neil F. Hartigan, Attorney General (Ralanda Webb, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This cause comes on for hearing upon the motion to dismiss the amended complaint filed herein by the Respondent. The original claim was filed herein on December 31, 1980. That claim requested reimbursement of $150,640 against the Department of Public Aid. The gist of the complaint was that the Department, under 42 U.S.C., section 1396, commonly known as section 249, had failed to properly compute the reimbursement rate for the Claimant. The claim alleged that the control of the nursing home facility in question had changed hands in 1975 as a result of a lawsuit between the Claimant and another party which had operated the facility for some time, called herein “Midstates.” As a result of that lawsuit between Midstates, the Claimant, and the lessor of the nursing facility, the circuit court of Cook County ultimately ruled that a new lease was in effect as of July 1, 1975. The Department of Public Aid refused to acknowledge that date for an increased cost basis, and used instead the original acquisition date by the Claimant in 1971. This resulted in an alleged loss of $150,640.

In January 1986, the Claimant amended its claim to state a cause of action in contract for the discrepancy in reimbursement rates. In addition, the amended claim contained allegations of failure to pay, failure to be reimbursed for increased rent payments, and failure to reimburse for real estate taxes. The Respondent has filed a motion to dismiss the amended complaint based on several grounds, including the statute of limitations, res judicata, and a bar of this suit by a prior Federal court settlement. For the reasons stated below, we agree and hereby dismiss this claim:

First, we agree that the amended complaint should be dismissed because of the statute of limitations. The statute of limitations as it applies to the Department of Public Aid bans recovery on the issue of the 1971 versus 1975 cost differential and on the claim for $3,000-per-month rent payments, as these issues were not brought before the Court of Claims within one year of their denial by the Department. The $3,000-per-month payment issue was new material in the amended complaint and did not relate back to the original complaint. Although there was some mention of taxes in the original complaint, the original claim was statutory, and the amended claim converts the cause of action to one of contract. Therefore, I believe that the claim for taxes does not relate back to the original claim.

In addition, there was a former lawsuit in the circuit court of Cook County entitled DLA Senn Park v. Coler, No. 85-CH-1722. Although the Claimant makes a strong argument that the Claimant in that lawsuit is not the Claimant in this claim, it is clear that the relief requested here concerning real estate taxes of the facility in question has already been granted in that lawsuit. Regardless of the identity or nonidentity of the Claimants, there can only be one recovery for the failure of the State to pay the increased real estate taxes on this facility.

In addition, it appears that the claim for $3,000 per month additional repayment because of the alleged $3,000 in additional monthly rent was denied in that case. Therefore, the issue has been previously litigated by a circuit court with jurisdiction over the parties, and this Court lacks jurisdiction to consider that part of the claim which alleges the State underpaid the Claimant by $3,000 a month. The whole basis for the allegations as to the $3,000-a-month underpayment was because of still another Cook County Circuit Court decision. The Respondent was not a party to either of the circuit court cases, but we therefore address the remaining allegations concerning a contract basis for recovery of the alleged underpayment. While the original claim alleged that the State had underpaid the Claimant because of a failure to institute a plan which would comply with section 249, as amended, the amended complaint attempts to state a cause of action in contract. In the intervening time period, a class action suit, Country Manor Nursing Home v. Miller, No. 80-C-2492, was filed in United States District Court for the Northern District of Illinois, Eastern Division. The class was certified, and it is undisputed that this Claimant was a member of that class. As such, it is also undisputed that it was bound by the decision rendered therein. The clear wording of the judgment order in the Country Manor lawsuit precludes further consideration of this claim.

However, even if the Country Manor settlement order did not preclude consideration of this claim, we would deny it as being in violation of the statute of limitations. The amended complaint allegations based on a contract theory do not relate back to the original complaint because they are distinct and separate causes of action. They are therefore barred.

Wherefore, for all the foregoing reasons, we hereby grant the Respondent’s motion to dismiss, with prejudice.


text:
    (No. 81-CC-2275
    Daniel M. Novak, Individually and as Administrator of the Estate of Beverly Ann Novak, deceased, Claimant, v. The State of Illinois, Respondent.

      Order filed October 11, 1989.

    Leonard M. Ring & Associates and Chappel, Brandt & Gore (E. Hugh Chappel, Jr., of counsel), for Claimant.

      Neil F. Hartigan, Attorney General (Gregory Abbott, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This matter coming to be heard on the motion of the Respondent to strike the complaint and dismiss the claim therein, due notice having been given the parties hereto, and the Court being fully advised in the premises, the court finds:

That Claimant filed a complaint in the Court of Claims on April 10, 1981, alleging that the State of Illinois, through its agents, employees at Zeller Mental Health Center (hereinafter Zeller), negligently allowed patient Robert Endicott to be discharged. Approximately one year and two months after his discharge from Zeller, Robert Endicott shot and killed Ms. Beverly Novak in Florida. This claim is brought by the administrator of Beverly Novak’s estate.

That the instant matter was placed on general continuance by this Court in May of 1981 while Claimant filed suit in the circuit court of Peoria County. (Novak v. Rathnam, No. 82-L-1341.) In the circuit court action, Claimant sued the Zeller employees who had recommended that Robert Endicott be discharged.

That the circuit court of Peoria County dismissed Claimant’s claim on the merits. The Court held that the defendant’s discharge of Mr. Endicott could not be the proximate cause of Ms. Beverly Novak’s death more than one year later.

That both the Circuit Court claim and the instant matter allege the same cause of action, that Zeller was negligent in discharging Robert Endicott. The only difference between the two causes of action is the named defendants. In the circuit court action, the defendants were Mr. Girmscheid and Mr. Rathnam, two State employees who recommended that Robert Endicott be discharged. In the instant matter, the defendant is the State as the employer of Mr. Girmscheid and Mr. Rathnam.

Since the claim before this Court is the same as the claim in the circuit court action, the circuit court’s dismissal on the merits is res judicata in the Court of Claims.

Therefore, it is ordered that Respondent’s motion is hereby granted and Claimant’s claim is dismissed with prejudice.


author: Montana, C.J.

text:
    (No. 81-CC-2348
    James Sallee, Individually and as Father and Next Friend of Chris Sallee et al., Minors, and Pam Sallee, Claimants, v. The State of Illinois, Respondent.

      Opinion filed January 22, 1990.

    Jerome Mirza & Associates, Ltd., for Claimants.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This claim arose from a traffic accident that occurred early in the morning of June 13, 1980. The vehicle involved was a 1977 Thunderbird, which was in good condition. Claimants, James Sallee and Pam Sallee, were in the front seat while their children, Chris and Amy Sallee, were in the back seat.

The Claimants had left LaHarpe, Illinois, and were traveling on Route 9, an Illinois highway maintained by the Department of Transportation. At the location of the accident, Route 9 is a two-lane road with one lane traveling east and one lane traveling west. The vehicle in which the Claimants were riding skidded across the highway and struck a tree, causing fairly severe injuries to Pam Sallee and less serious injuries to James Sallee and their children.

James Sallee, the driver of the car, lost control of the vehicle as a result of standing water on the roadway. Numerous cases in this Court have held that the State does not insure the safety of all motorists and passengers who travel on the State’s highways. In order to recover on their claim, the Claimants must prove by a preponderance of the evidence that the State was negligent, either in its maintenance of the road or by its failure to maintain the road. The Claimants must further prove that this negligence was a proximate cause of the accident, that the State had notice of the alleged defect which they either failed to maintain or maintained in a negligent manner, and that the accident resulted in damages. Possible contributory negligence on the part of the Claimant must be considered.

In this case, both the question of negligence and proximate cause are in dispute. There seems to be no great dispute about the damages, and the Court finds that there was no contributory negligence on the part of any of the Claimants. Of course, notice is an issue contained within the issue of the State’s negligence.

The issue of proximate cause is perhaps the most closely contested issue in this case. The most important evidence as to proximate cause was the testimony of State Trooper Oliver. Trooper Oliver was the first officer on the scene and was the officer who completed the accident report. At oral argument of this matter before the entire Court, the question was raised as to whether or not the report prepared by Trooper Oliver had been placed in evidence. On December 9, 1985, a supplemental memo was filed by the Claimants indicating that this testimony was admitted without objection.

“Q. Trooper, let me direct your attention to the back page of your report, I believe you have a copy in front of you, and on the back page of that report there is a narrative section consisting of about 9 to 10 lines that you have written in concerning the accident.
A. Yes sir.
Q. The second paragraph of that narrative states that there are low spots in the roadway at this particular location and during and after a rain, water collects in these spots creating a traffic hazard.
Is that what you wrote on that occasion?
A. Yes sir.
Q. And that was your opinion and belief when filling out this report?
A. Yes sir.
Q. Is that your opinion and belief today?
A. Yes.”

It appears that no objection was made to the admission of this evidence. The testimony concerned the fact that there were low spots in the roadway at the particular location of the accident. It went on to state that during and after a rain, water collected in those spots, creating a traffic hazard. When asked on the day of the hearing if that was still the trooper’s opinion, the trooper reiterated that it was. The trooper further testified that there was still water on the roadway when he arrived at the scene. He estimated that there was approximately one inch of water. The trooper further indicated that there were skid marks beginning where the automobile hit the water. He further testified that the skid marks started east of where the water was, went across the roadway, and off on the north shoulder, struck a tree, and then continued in an easterly direction.

None of the Claimants could positively testify that the standing water on the roadway was the cause of driver Sallee losing control. James Sallee did testify that he was having no problem with the steering immediately prior to the accident. Although the Respondent has raised strong arguments that this testimony is not sufficient to establish that the standing water on the roadway was a proximate cause of the accident, we disagree. We feel that by a preponderance of the evidence, the Claimant has met the burden of proof that the standing water was the proximate cause of James Sallee losing control of the automobile.

The Respondent has cited the case of English v. State (1982), 35 Ill. Ct. Cl. 180. In that case, this Court denied a claim for personal injuries and for death as a result of a factual situation which was similar to the case at hand. The Court denied the claim on the basis of a showing of no proximate cause. That case also involved standing water on the roadway. However, in the English case, a head-on collision was involved. At a location where water was present on the roadway, a car driven by Steven Glasgow crossed the center line and collided head-on with a car driven by Claimant Diane English. The driver of the automobile, Steven Glasgow, survived. However, a passenger was killed. The trooper investigating that accident indicated that there was standing water in the roadway; however, another witness testified that there was not. Again, that closely matches some of the testimony in the present case. The only two occurrence witnesses who testified in the English case were Claimant English and a passenger in her automobile. The passenger in the Glasgow automobile was dead, and the driver, Steven Glasgow, did not testify. Since it was his car which crossed the center line, the Court found that the Claimants had failed to prove that the standing water in the roadway was the proximate cause of the accident.

Here, the testimony as to the existence of the water standing on the roadway at the time of the accident seems to be more clearly established. In addition, Trooper Oliver’s testimony concerning the skid marks, which began at the location of the water and led to the location of the Sallee automobile, is very convincing.

In addition, the Claimant in this case has cited two other prior decisions which go far to persuade the Court that there is . proximate cause. In the case of National Bank of Bloomington v. State (1980), 34 Ill. Ct. Cl. 23, the proximate cause was clearly and easily established. The occurrence eyewitness testified that there were 8 to 10 inches of water on the roadway and that he witnessed the decedent’s vehicle come into contact with the water, hydroplane, leave the pavement, come out of a ditch, and crash into his truck head on. Of course, those facts more clearly established proximate cause than the facts present in this case. However, in another case cited by the Claimant, Interstate Bakeries Corp. v. State (1974), 29 Ill. Ct. Cl. 446, this Court awarded a claim to a corporation seeking to recover property damage as a result of an accident involving a truck. The testimony involved a tractor-trailer which struck an oil slick with rainfall on top of it. The driver testified that after he hit two large bumps in the road and an oil slick, he lost traction and slid into an embankment.

In this case, the driver testified that he lost control after topping a rise. He then slid into an embankment. The testimony as to the existence of the water here was supplied by Trooper Oliver.

For all the reasons stated, we believe the factual situation in this case to be more similar to that of Interstate Bakeries Corp. than either the English or National Bank of Bloomington cases. We therefore feel that our finding of proximate cause in this case is consistent with the prior decision of this Court in the Interstate Bakeries Corp. case.

Another difficult issue to resolve in this case, and the one which more often arises in similar cases, is that of negligence. Numerous cases decided by this Court have held that this State is not an insurer as to the safety of motorists or passengers upon its highways. The State is only required to maintain its highways in a reasonably safe condition. In addition, before the State can be held liable for highways which are not maintained in a reasonably safe condition, the State must have notice of the dangerous condition.

This notice requirement has been defined by this Court in numerous cases to be either actual notice or constructive notice. If the State had notice of water standing on the roadway at this location, the State would have been required to either correct that situation or to place warning signs as to the dangerous condition. The evidence in this case is uncontradicted that no warning signs were placed and that no corrective action was taken on this location prior to the accident. Thus, the ultimate issue which must be resolved in this case as to liability is whether or not the State had actual or constructive notice of a dangerous situation at the location of this accident.

Trooper Oliver, the State trooper who investigated this accident, indicated that he observed standing water in this location on the date of the accident. In addition, he testified that he had seen water in the location in the past. Further, he testified without objection that it was his opinion that there are low spots in the highway at this particular location and that during and after a rain, water collects in these spots creating a traffic hazard. Under cross-examination, Trooper Oliver testified that on the date of the accident, he was not aware that there was a collection of water at that location until he arrived on the scene. Trooper Oliver went on to testify that the area of the roadway that was covered with water consisted of the entire width of the roadway for approximately 10 feet.

The Claimants also called as a witness a Larry Mynatt. Mr. Mynatt lives close to the location of the accident and is familiar with the scene of the accident. He testified that he had noticed grooves in the road which collected water during a rainfall. He further testified that at any time when it was raining, there was water standing in the road at that location.

The Claimants then called a Kenneth Brown who, at the time of the hearing, was mayor of the city of LaHarpe. He testified that he was also familiar with the scene of the accident, and he had placed flares west of the accident scene the evening before the accident. He had done this to notify traffic that there was standing water on the road. He also testified that he had placed flares at the scene of the accident for the same purpose two weeks prior to the accident; however, he had not notified the Department of Transportation of this condition.

The Respondent then called a Roy Baranzelli, a field engineer for the Department of Transportation. Engineer Baranzelli testified as to the construction of the highway and accident area. He testified that prior to the accident, he had no report, either formally or informally, of water standing on the roadway in that area.

The Respondent also called Byron Winters, who is a maintenance worker for the Department of Transportation in Hancock County. He stated that he had been with the Department for approximately 14 years and was familiar with the site of the accident. He traveled the road three times a week for approximately 14 years. He also indicated that part of his job duties included the assignment of workers to place warning signs for water on the pavement. He testified under direct examination that he had never seen an accumulation of water of sufficient depth to warrant placement of a warning sign at that location.

Under cross-examination, Mr. Winters indicated that he had seen water at the accident site, although not on the day of the accident. Approximately two to three years previous to the date of the accident, he had seen water accumulate at the accident site. He indicated that at that time, signs had been placed warning of water on the pavement. He further indicated that warning signs regarding water on the roadway were placed only if they were notified that there was a problem. If it was noted that water was a long-standing problem or a frequent problem, such as under a viaduct, temporary signs were placed on a more regular routine.

Notice cases are among the most difficult this Court must decide. In the case of Interstate Bakeries Corp. v. State, cited before in this opinion, notice was clearly established. In that case, a direct report of a dangerous condition had been made, and the State had been present on more than one occasion attempting to correct the problem. In the case of Reidy v. State (1975), 31 Ill. Ct. Cl. 16, this Court denied liability because the evidence failed to indicate prior knowledge of flooding by State officials. In that case, numerous witnesses called by the Respondent indicated that there had never been any actual notice of water on the roadway on the date of the accident. In addition, there was no prior notice or knowledge of water accumulating at the scene of the accident. This evidence was very strong that the State had no notice, either actual or constructive, of water accumulating at the scene of that accident.

A similar case was Brockman v. State (1975), 31 Ill. Ct. Cl. 53. In that case, a State trooper testified that while there was a six-inch accumulation of water on the road at the site of the accident, he had driven over the highway many times and did not recall ever having seen water accumulate on the road prior to the accident. He further testified that he found a clogged drain beside the roadway from which he removed some debris. He testified that the road then drained in about 40 minutes. Further, witnesses for the State included the highway engineer, who testified that there had been no prior notice of any problems regarding water at the accident site. In addition, testimony established that on the day of the accident, the engineer in charge of that stretch of highway had assigned a two-man crew to clean and repair sewers on the very day of the accident. He testified that the men had covered that stretch of highway on the day of the accident removing debris from sewers.

However, this Court must also consider the case of National Bank of Bloomington v. State, previously cited herein. In that case, as in this case, local residents testified that they had observed water accumulating on the roadway numerous times. In this case, two local residents testified that they had noticed the water accumulating, even though they did not report the accumulation to the Department of Transportation. In the National Bank of Bloomington case, Trooper Hinkle testified that he had driven over the area numerous times and had seen water standing on the same site on prior occasions. He further testified that in the past, he had signs posted at the site of that accident when he had noticed water standing on the roadway. In the case at bar, Trooper Oliver also testified that he had seen water at the scene of this accident in the past. He testified that there are low spots in the roadway at this particular location and that during and after rain, water collects in these spots, creating a traffic hazard. His, along with the testimony previously referred to in this opinion by Byron Winters, would indicate that the State had some constructive notice of a potential problem regarding water standing on the roadway at this site.

We think that the facts in this case fall somewhere between the facts which were present in the cases of Reidy and Brockman, in which this Court denied claims on the basis of no liability, and the case of National Bank of Bloomington, in which this Court partially awarded a claim. Although we consider this to be a close question, thorough reading of the evidence presented at the hearing on this matter convinces us that the Claimants have met their burden of proof by a preponderance of the evidence. Therefore, we find liability for the Claimants against the Respondent.

Next, we reach the issue of damages. It appears that the medical bills, which were not specifically delineated for each of the four Claimants, totalled $22,000. On the testimony presented at the hearing of this case, it is probable that the great majority of these medical bills were as a result of the injuries to Claimant Pam Sallee. It appears that the injuries to the two children were relatively minor. There was some scarring. However, the Commissioner who heard this case indicated that it was minor and, in one case, covered by hair. Claimant James Sallee suffered somewhat greater injuries and may have lost approximately $1,500 in wages as a result of the accident. There was no recovery of these lost wages. Claimant Pam Sallee evidently suffered considerable pain and suffering as a result of her injuries. She was required to wear a variety of braces. One brace left permanent scars. There was some testimony that plastic surgery could correct some of the problem, but not all of the problem.

The evidence also clearly established that the medical bills had been paid by the Claimant’s health insurance. The Respondent argued to this Court that, if we found liability, we should reduce the damages awarded because of a set-off as set forth in section 26 of the Court of Claims Act:

“The granting of an award under this Act shall constitute full accord and satisfaction. There shall be but one satisfaction of any claim or cause of action and any recovery awarded by the court shall be subject to the right of set-off.” Ill. Rev. Stat., ch. 37, par. 439.24 — 6.

Section 26 was enacted in 1972 and was amended the year after. Before amendment this section read:

“The granting of an award under this Act shall constitute full accord and satisfaction. There shall be but one satisfaction of any claim or cause of action and any recovery awarded by the court shall be subject to the right of set-off of an amount equal to the monies received from any other source, whether received in consideration of release or covenant.”

It is well understood that a common law set-off is a type of counterdemand made by the defendant arising from an independent cause of action held by the defendant. (Air Illinois, Inc. v. State (1986), 38 Ill. Ct. Cl. 289.) In Air Illinois, Inc., a claim by the airline for a passenger fare was set off against tickets purchased by another agency but not used, due to bankruptcy of the airline.

The original section 26 created in the context of personal injury a new meaning for the words “set off,” namely the reduction of an award by the “amount equal to the monies received from any other source.” (Merchant’s National Bank of Aurora v. State (1972), 29 Ill. Ct. Cl. 103.) In Merchant’s National Bank of Aurora, the court set off the amount received from the injured’s uninsured motorist coverage.

In Saltiel v. Olsen (1979), 77 Ill. 2d 23, 394 N.E.2d 1197, the supreme court of Illinois stated:

* ° the normal presumption is that an amendment is intended to change the law as it formerly existed, rather than to reaffirm it ° ° ( °(77 Ill. 2d 23, 29, 394 N.E.2d 1197,1200.)

Based upon this rule of statutory construction, the fact that the language requiring all of the monies received from other sources to be set off was enacted and then quickly repealed leads inescapably to two conclusions. Either not all previously received monies are to be set off, or the statute was to reflect the common law definition of set off.

The question before us is whether a recovery from the Claimant’s own insurance is to be set off.

Though nowhere stated in the Court of Claims Act, this Court applies the common law, precedents, and statutes applicable in the circuit courts, except where conflict exists with the Court of Claims Act.

In the circuit courts, where an injured party receives payments from his own insurer, the collateral source rule is invoked. The collateral source rule holds that monies received from a source independent of the tortfeasor may not be deducted from damages. Peterson v. Bachrodt Chevrolet Co. (1978), 61 Ill. App. 3d 898, 378 N.E.2d 618.

The logic behind the collateral source rule is that an injured party has prudently entered into an insurance contract and should be allowed to benefit from it. Additionally, some insurance contracts have subrogation clauses which allow insurers to recover their expenditures from the insured once the tortfeasor has paid the injured party. Failure to apply the collateral source rule allows the wrongdoer to escape the consequences of its wrongdoing, throws the burden on the insured, and rewards those without insurance.

It is our belief that the current section 26 authorizes common law set offs and authorizes deductions of monies previously received by the injured from the State or other tortfeasors, but does not abrogate the collateral source rule.

Therefore, the amounts of health insurance recovered by the Sallees shall not be set off. This holding will be applied prospectively to all claims pending at the time of this decision and those filed hereafter.

Therefore, we make the following awards:

We award Claimant James Sallee, for his own injuries, the sum of seven thousand five hundred dollars ($7,500.00.)

We award Claimant James Sallee, as father and next friend to his children, Chris Sallee and Amy Sallee, for and in behalf of Chris Sallee and Amy Sallee, the sum of four thousand dollars ($4,000.00) each, for a total of eight thousand dollars ($8,000.00.)

We award Claimant Pam Sallee, taking into consideration the pain and suffering she suffered, the permanent disfigurement, and the length and duration of her illness, and the amount of her medical bills, the sum of seventy-five thousand dollars ($75,000.00.)

Therefore, the total amount of the awards for the Claimants is ninety thousand five hundred dollars ($90,500.00).


text:
    (No. 81-CC-2383
    Dudley R. Dye, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 27, 1990.

    Spencer W. Schwartz & Associates, P.C., for Claimant.
    Neil F. Hartigan, Attorney General (Janice Schaffrick, Assistant Attorney General, of counsel), for Respondent.
   Sommer, J.

The Claimant, Dudley Dye, is seeking damages for personal injuries sustained in a motorcycle accident on Old Skokie Road, just north of Russell Road in Lake County, Rlinois. Russell Road intersects the east side of Old Skokie Road, and at the intersection, Old Skokie Road consists of four lanes, two southbound and two northbound. Old Skokie Road is maintained by the State.

On June 22, 1980, at approximately 3:30 p.m., the Claimant was driving a motorcycle in the southbound lanes of Old Skokie Road. The day was hot and sunny and the pavement was dry. The Claimant contends that when he attempted to change from the left southbound lane to the right southbound lane, he struck a pothole and a series of ripples, and these defects in the road caused him to fall. On the other hand, the State contends that the pothole and the ripples were not the cause of the accident; rather the Claimant braked because he saw a truck at the Russell Road intersection and the brakes locked and caused him to fall, or the Claimant was inattentive and fell when he should not have.

The State is not an insurer of accidents that occur on its highways. In order to recover, a Claimant must show that the condition of the highway was hazardous and the proximate and direct cause of the accident; and this must be proved by the preponderance of the evidence. (Kavalauskas v. State (1963), 24 Ill. Ct. Cl. 361.) Preponderance of the evidence is more than the weight of the evidence, but also includes the credibility and persuasiveness of the evidence.

In this case, the Court finds itself in the position of having to weigh and judge the evidence in order to determine whether the Claimant has met his burden of proof.

The Claimant testified that he felt a jolt and a series of bumps just before he fell. At the time, he was gradually going from the left southbound lane to the right southbound lane.

There is little dispute that near or at the site of the accident, the seam between the southbound lanes was split to a width of 6 or 7 inches, a depth of 2% inches, and a length of 33 inches, and on the right of the seam were two ridges in the pavement beginning about 50 feet from the hole and about 20 feet apart. The split was caused by an overlayer of material having worn away.

The Claimant testified that he did not see the hole or ridges because of the bright sun and because he was watching out for a truck on Russell Road at the intersection of Old Skokie Road. The Claimant’s testimony was supported by Kenneth Dombeck, a friend, who was riding a motorcycle behind the Claimant.

A conflict in the evidence arises upon the testimony of the investigating officer, State Police Officer Junk. Roth the Claimant and Kenneth Dombeck stated that the Claimant was in the ambulance when Officer Junk arrived and that the Claimant and Officer Junk had no discussion concerning the cause of the accident. Officer Junk then testified that he asked the Claimant what happened, and the Claimant “stated his front wheel had locked up and he lost control.” At that point in his testimony, Officer Junk asked to use his accident report in order to refresh his memory. He then testified that the Claimant “told me about the brakes locking up on the front.” Officer Junk did not talk to Ken Dombeck. On cross-examination, Officer Junk admitted that in his report he did not attribute the statement about the brakes to the injured party and that normally such would have been written down as “driver stated.” Additionally, Officer Junk admitted seeing no skid marks that would have been consistent with the Claimant’s brakes locking. However, Officer Junk testified that the statement concerning the brakes could only have come from a witness or he would not have noted it, and he interviewed no witnesses other than the victim. No objection was made to Officer Junk’s testimony at the hearing.

Both parties introduced expert testimony. Matthew Sielski, the Claimant’s expert, gave the opinion that the hole was a hazard and could create a situation that would cause a “motorcycle to be out of control * * Mr. Sielski had examined the accident site. Mr. Sielski stated that he had never ridden a motorcycle. Dror Kopernic, a motorcycle safety specialist and expert witness for the Respondent, testified that he conducted three different tests which demonstrated in his opinion that neither the hole in question nor the washboard effect of the pavement could have caused the accident. Using a motorcycle almost identical to the Claimant’s, Mr. Kopernic conducted several tests which duplicated the road conditions and driving speed of the Claimant and a video of one of these tests was shown. Mr. Kopernic testified that he repeatedly rode over a hole deeper than that ridden over by the Claimant and at the same speed and at a similar angle. He noticed only a very minor jolt and no loss of control. Mr. Kopernic also demonstrated mathematically how a motorcycle riding at 40 to 45 miles per hour would not be significantly affected by riding over a hole the size and depth of the hole in the Claimant’s case. Also, the “washboard effect” which allegedly contributed to the Claimant’s fall was discounted as a contributing factor. Mr. Kopernic opined that the hole and the ripples were “probably not” the proximate cause of the accident, and that the hole and ripples were visible from some distance and should have been easily negotiated by the Claimant.

On cross-examination, the Claimant stated that two weeks later he and his wife went to the accident scene and took photographs of the road and the accident scene, but did not take a picture of the hole that allegedly caused the accident. The Claimant did not draw the hole in the diagram made by him on his insurance report made out about the same time, but he did discuss the hole and ridges in the narrative.

The annals of this Court contain a case similar to the present one, namely Wendler v. State (1961), 24 Ill. Ct. Cl. 273. In the Wendler case, an automobile went out of control and struck another automobile. The driver of the errant vehicle testified that a crack in the road caused him to lose control, but he had told an investigating officer that his wheels had locked up, and he did not mention the crack to the investigating officer. Additionally, the driver could not locate the site of the accident. This Court ruled that it could not determine, under the circumstances, the proximate cause of the mishap. This Court noted that the testimony immediately after the accident was more convincing than that later. Added to that were too many discrepancies in the testimony, along with the facts and circumstances which made it difficult to determine the proximate cause. In other words, the Claimant did not prove his case by a preponderance of the evidence.

As we have previously stated, preponderance of the evidence is a matter of weight and also credibility and persuasiveness. In this claim, we find that the Claimant has not, by a preponderance of the evidence, proven that the hole and ripples were hazardous under the circumstances or were the proximate cause of the mishap. As in the Wendler case, there are discrepancies between the testimony closer in time to the accident and the testimony later. There is the obvious conflict between the testimony of the Claimant and his friend, Kenneth Dombeck, and Trooper Junk. If the Claimant is to be believed when he testified that he made no statement, it is necessary to find Trooper Junk’s testimony in error. This conclusion is not compelled by the testimony before us; rather, the contrary is equally likely, if not more so. Also, closer in time to the mishap is the odd fact that the Claimant did not photograph the hole that allegedly caused the accident when he went to the scene and made a number of photographs of the roadway. We reason that the Claimant had not focused on the hole as the alleged cause of the mishap at that time.

At a later time when the hole had been assigned by the Claimant as the cause of the accident, expert testimony differed as to whether the hole was a hazard for a motorcyclist. If the Claimant’s expert is to be believed, it is necessary to give his testimony more weight and credence than that of the Respondent’s expert, even though the Respondent’s expert was an expert in motorcycle accidents and made numerous demonstrations at the site. That the Claimant’s expert should prevail is not evident from the testimony.

This Court concludes that, as in Wendler, there are simply too many conflicts and discrepancies in the testimony to find that the issues have been proven by a preponderance of the evidence.

It is therefore ordered that this claim be denied and dismissed with prejudice.


text:
    (No. 82-CC-1217
    Paul Sheedy, Executor of the Estate of Alice Sheedy, deceased, Irene Brown, Stephan B. Mann, Robert J. Calhan, Patricia Anderson and Ralph Anderson, Claimants, v. The State of Illinois, Respondent.

      Opinion filed July 28, 1989.

    Armstrong, Surin & Engels, for Claimants.
    Neil F. Hartigan, Attorney General (Claire Taylor, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This claim was brought by several landowners seeking compensation for damage caused by flooding of farmland adjoining the Illinois & Michigan Canal (I & M Canal) in Grundy County, Illinois. The case proceeded to hearing, briefs were filed, the Commissioner has duly filed his report, and oral arguments were held before the Court.

The flooding incidents occurred on September 8, 1980, and June 13, 1981, when, as a consequence of rainstorms, the south levee of the canal was overtopped and gave way at various points causing flooding of the farmlands owned and/or managed by the Claimants. During the September 8, 1980, incident a 50- to 75-foot break occurred in the south levee adjacent to the property owned by Irene Brown.

In Claimants’ complaint and amended petition, they allege the State was negligent with reference to the I&M Canal in that the State:

(a) failed to properly inspect said south levee,

(b) permitted said levee to erode to such height as to be insufficient to control the flowage of water in said canal,

(c) failed to properly maintain the canal so as to permit an adequate flow of water to be maintained in said canal,

(d) permitted the south levee of said canal to be undermined,

(e) diverted water from other than its course of natural drainage which it permitted to flood and inundate petitioners’ lands,

(f) failed to contain the waters of the I&M Canal entirely within the boundaries of said canal, and

(g) failed to properly redesign the Canal prism between Carson Creek and the Waupecan Island Spillway in 1951.

The Claimants also make a strict liability claim contending that under the provisions of section 8 of An Act to revise the law in relation to the Illinois and Michigan canal (Ill. Rev. Stat., ch. 19, par. 8) (the Act), the Department of Conservation had control and management of the I&M Canal, that under the provisions of section 9 of the Act (Ill. Rev. Stat., ch. 19, par. 10), the Department of Conservation was required to keep the canal in good and sufficient repair, and that the provisions of section 23 of the Act (Ill. Rev. Stat., ch. 19, par. 70) mandate that the State:

° * prevent the carrying capacity of streams to be limited and impaired by fills, deposits, obstructions, encroachments therein, deposit of debris or material of any kind, including trees, tree limbs, logs, shrubbery, or related growths and trimmings therefrom in or upon the bank of any waters and water courses or in such proximity to such waters and water courses or any tributary thereto where the same shall be liable to be washed into or deposited along such waters and water courses, either by normal or flood flows, as a result of storms or otherwise, which may in any manner impede or obstruct the natural flow of such waters and water courses e “

Notwithstanding the provisions of said statutes, Claimants assert that responsible agencies of the State failed to comply with said statutory provisions between January 1, 1950, and the date of the occurrences alleged, resulting in the damage complained of by Claimants.

It is not disputed that the State does own, operate and maintain I&M Canal primarily as a recreational area. Historically, the canal was created in this area in 1848 and was dredged in 1871, and from that time continued to fall into disrepair until 1933 when it was officially closed to navigation. In 1974, the maintenance and control of the canal was delivered to the Illinois Department of Conservation. Prior to 1974, the Department of Public Works and Buildings (later known as the Department of Transportation) had jurisdiction over the canal.

Over the years the canal has attempted to handle the flow of floodwater from the north in the watershed area of Carson Creek and also Rat Run. In 1951, an earthen dam was placed across the canal which prevented any Carson Creek drainage from flowing to the west toward Seneca and forced all runoff to flow east toward the Waupecan Island Spillway. Also, in 1951, a 4.9-mile reach of the I&M Canal was dredged from the mouth of Carson Creek to the Waupecan Island Spillway.

There is a report in the record issued by the Illinois Department of Transportation Division of Water Resource Bureau of Planning entitled Investigation of Flood Problems — Phase I — Illinois and Michigan Canal between Carson Creek and Waupecan Island Spillway. This report, which was submitted at trial without objection as Claimants’ Exhibit 1, indicates that from 1951 to 1981, or since the earthen dam was placed to the west of Carson Creek, approximately 90,100 cubic yards of silt from Carson Creek has settled within the canal prism. The report further states as follows:

“Near the mouth of Carson Creek the depth of canal siltation is about five feet higher than the 1951 post-dredging elevation. Relatively fast flowing (and silt laden) water from the Carson Creek basin empties into the very flat I&M Canal and slows down very suddenly, allowing the sediment in the water to settle to the bottom. As can be expected, this extensive sedimentation process has gradually reduced the flow capacity of the canal.
Also, since the last dredging operation in 1951, lack of an annual maintenance program has allowed a heavy growth of vegetation to develop along both banks of the canal. Trees and dense brush tend to increase the amount of flow resistance and, in this instance, are a major cause of undesirable flood levels.
The concrete spillway at Waupecan Island is also a major cause of overbank flooding to the west. The size of the spillway structure is certainly adequate to pass large flood flows, but the height of the crest produces upstream flood problems. The crest of this spillway was constructed approximately 21// below the canal towpath in order to maintain canal water at a navigational height. As can be seen on Plate 3, the spillway elevation controls the starting water surface elevations and creates a backwater effect that is carried upstream toward Carson Creek.” (pp. 5, 6.)

It appears Respondent was aware as early as 1973 that drainage problems existed in the section of the I&M Canal relevant to this claim. As part of the departmental report submitted by Respondent pursuant to section 14 of the rules of this Court (74 Ill. Adm. Code 790.140) is a memo dated May 29, 1973, discussing overflow of the I&M Canal. The relevant portion of the memo states:

“The problem of overflowing seems to stem from a creek flowing into the canal approximately Hi miles from the area of the washouts. This creek is called I believe, Carsons Creek and is the drainage for the surrounding area. When a hard rain falls in the watershed of this creek, it becomes swollen and dumps a large volume of water into the canal. The day that I visited the area there was evidence of debri (sic), approximately 4 ft high in the surrounding area and shrubery (sic), indicating that the creek had overflowed its banks. This debri (sic) was also found approximately 2 miles from the creek, but was not in evidence further East. This creek, when flooded empties such a large volume of water and has such a tremendous amount of head pressure that it fills the canal in the immediate area, until it spills over at some point.”

Claimants’ expert witness Robert E. Renwick, a civil engineer, testified that in his opinion the canal drainage system was improperly designed when it was changed in 1951. He further testified that between 1951 and September 8, 1980, the canal in the area in question was not properly maintained with respect to dealing with siltation and vegetation. When Respondent’s expert witness, Dr. Misganaw Demissie, also a civil engineer, was asked by Claimants’ counsel if, based on studies of various documents, particularly Claimants’ Exhibit 1 which was referred to previously, he had an opinion as to whether Respondent had performed adequate maintenance on the I&M Canal so as to prevent damage to adjoining lands, Dr. Demissie indicated the chance of a breakout would have been less if the levee had been kept in “tiptop condition.” Dr. Demissie also indicated that the accumulation of silt could have an impact on the canal’s ability to carry water. Dr. Demissie further stated:

“[I]f you look at the documentary history, they talk about overtopping, flooding problems. The reason — probably the reason was they didn’t design it to carry flood waters. You know, 2-and-a-half feet free board, that’s not a whole lot of area to carry flood waters ° ° °
Q. (Mr. Armstrong) What you are saying then is that the design was inadequate when it was originally built to protect the adjoining landowners because of the low free board?
A. (Dr. Demissie) There are many other points also.
Q. But that’s one?
A. That’s one. The other one, as you know, it is above ground a lot of places, and, you know, when you have that, you know, you got problems.” (Tr. 758, 759.)

After a thorough review of the record in this matter, it appears to this Court that when Respondent placed the earthen dam to the west of the mouth of Carson Creek in 1951 which prevented Carson Creek drainage from flowing west toward Seneca and forced all runoff to flow east to the Waupecan Island Spillway, it had a duty to maintain the canal in a manner which would provide adequate drainage and prevent overtopping and breakouts. The evidence indicates Respondent did little to deal with the siltation and vegetation problems of the canal. We find that lack of proper maintenance led to the overtopping and breakouts which caused the flooding of the farmlands owned and/or managed by the Claimants and that Respondent is liable for damage caused by the flooding. Having found that the State was negligent with respect to the maintenance of the canal, we do not find it necessary to rule on whether the canal design was improper or on Claimants’ allegations based on strict liability.

The next question to consider is the proper measure of damages for growing crops. The first occurrence on September 8, 1980, presents little problem in assessing because these crops were “made” and essentially ready for harvest. The testimony of the Claimants was not contradicted and the grain prices were stipulated. The damages as to each Claimant supported by the testimony are accurately reflected in the calculations contained in Claimants’ brief and essentially are as follows:

The question of damages concerning the loss in June of 1981 requires a close examination of the existing case law. The original rule followed in Illinois seemed to be that when the crop was not up or where it is up but is not so matured that the product can be fairly determined, the measure of damages is the rental value of the land together with the value of the seed and labor expended in bringing the crop to the point where it was destroyed. Young v. West (1906), 130 Ill. App. 216; Enright v. Toledo, P. & W. R. Co. (1910), 158 Ill. App. 323.

This line of cases, however, appears to have been overruled to allow for the later and more flexible rule as shown by the supreme court case of St. Louis Merchants’ Bridge Terminal Association v. Schultz (1907), 226 Ill. 409, 80 N.E. 879, in which it was determined that the measure of damages for growing crops which were totally destroyed by inundation is the value of the crops at the time they were destroyed, together with the value of the right of the owner to mature the crops and harvest them at the proper time. This rule has been consistently followed to date by the cases determining the question since that case. See Johnson v. Sleaford (1963), 39 Ill. App. 2d 228, 188 N.E.2d 230; Kaiser Agricultural Chemicals v. Rice (1985), 138 Ill. App. 3d 706,486 N.E.2d 417.

The State’s contention in its brief stating that the Claimants produced no records to substantiate their opinions is without merit. The Claimants as witnesses were highly credible, conservative, and fair in their testimony concerning damages. They testified without objection to the acreage of the crops to be planted and the costs of planting and harvesting the same. As such they have proved their damages by a preponderance of the evidence and the State’s objections to Claimants’ motion for leave to file an amended petition are denied. We find that the 1981 calculations in Claimants’ brief are accurate and they read as follows:

By reason of the foregoing it is hereby ordered that awards be, and hereby are, entered for the Claimants as follows:

Stephan Mann - Tenant: $29,239.25

Irene Brown - Landlord: $32,719.25

Alice K. Sheedy Estate - Landlord: $12,986.75

Stephan Mann - Tenant: $12,350.75

Calhan-Anderson, Landlord & Tenant: $75,146.00

Total Award $162,442.00


text:
    (No. 82-CC-1599
    Thomas Tucker, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 31, 1989.

    Cook, Shevlin & Keefe, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (James C. Majors, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

Claimant, a former resident of the Menard Correctional Center, brought this action for personal injuries sustained by him on June 27, 1980, when he was thrown from a tractor while working as a farmhand at that facility.

The incident giving rise to his injuries occurred on the farm grounds at the Menard Correctional Center. Claimant, a 33-year-old unmarried man with previous employment experience as a heavy equipment operator and a high school education, was assigned to work on the farm at Menard in June of 1980. Claimant had no previous experience of any kind doing farm work or operating farming equipment.

On June 27, 1980, Claimant reported to the farm office for work. Claimant and another inmate, Gary Eberwein, were assigned by Wayne McDonald, the farm superintendent, to take a tractor and spray weeds. Eberwein had been working on the farm for a year and had experience with the tractor and spraying operation. Eberwein was assigned to drive the tractor and Claimant was assigned to accompany and assist him in the operation. The location where the weeds were to be sprayed was several miles from the farm office, but on prison grounds. The equipment to be used was a John Deere 301 tractor with a large sprayer attached to the rear. The tractor is identified as a “construction tractor” and is generally used for work on farms. The tractor has a seat for the driver, fenders over the inside portion of the rear wheels, and a flat cover over the engine in front.

After Claimant was given his assignment, McDonald directed him to get on the tractor and ride with Eberwein over a road which he knew was in poor condition. Claimant inquired as to where he would ride on the tractor and McDonald directed him to sit on the front of the tractor and not stand on the rear. The only place to sit on the front of the tractor is on the immediate front of the engine cover, with feet resting on the axle cover and facing forward. Claimant sat on the front of the tractor in this position. Eberwein then drove away from the farm office while McDonald watched them depart.

Claimant and Eberwein drove for about a mile, at 10 to 12 miles per hour, when the front wheel of the tractor hit a pothole in the roadway which caused Claimant to be thrown off the front of the tractor. The pothole was approximately two to three feet across and five to six inches deep, located in the middle of the road. Claimant saw the pothole as the tractor approached but did not warn Eberwein of its presence. Claimant landed on the road in front of the tractor and both the tractor wheels and the sprayer wagon wheels ran over him.

Claimant was taken to Chester Memorial Hospital where he was treated for a broken left arm and lacerations on his back. Claimant was released from Chester Memorial Hospital on July 8, 1980, and returned to the prison infirmary where he remained for two weeks. Claimant’s back and left arm continued to cause him pain.

On July 24, 1980, Claimant was placed under the care of Dr. Philip George, an orthopedic surgeon living in St. Louis, Missouri. Dr. George repaired Claimant’s fractured left arm by attaching a steel plate to the bone inside the arm at the point of fracture. As a result, Claimant has a permanent scar about 6" long on the top of his left forearm. Claimant returned to the prison infirmary on August 4,1980, where he remained in convalescence for two weeks. Claimant continued to experience pain in his left arm, back and legs, and was unable to perform any work. As a result of the accident, Claimant had also lost most of the muscle control over his bowels, he had pain and difficulty urinating, and he was unable to achieve an erection.

Claimant returned to Dr. George’s care on October 6, 1980. Dr. George, assisted by Dr. Francis Walker, a neurosurgeon, performed a fusion on Claimant’s back. Claimant was discharged on October 27, 1980, and returned to Menard where he continued to experience pain in his back and legs.

On October 11, 1980, Dr. George removed the metal plate from Claimant’s left arm. In February of 1982, Claimant was discharged completely from the custody of the Department of Corrections.

In September of 1983, Claimant placed himself under the care of Dr. Joseph Hanaway of St. Louis because of continuing back pain and the presence of blood in his urine. Claimant was informed that his pain would continue regardless of what kind of medication was prescribed. Claimant did not return to Dr. Hanaway because he was unable to pay for additional services.

Claimant initially found employment as a cashier for an automobile parts store at $100 per week. The job lasted six months, and then the store went out of business. Claimant was unable to find employment throughout 1983. In 1984, Claimant earned $1,200 by delivering automobiles. In 1985, Claimant found employment as a part-time chauffeur at $100 per week.

Claimant continues to experience pain in his left leg. He cannot sit in one place or stand for long periods. Medicine has been prescribed, but he is unable to afford it. As a result of this accident, Claimant also remains unable to achieve an erection and is incontinent at least two or three times each week. When employed as a chauffeur, Claimant is limited to no more than two hours of continuous driving because of the pain in his left leg. In addition, Dr. George testified that Claimant will be permanently restricted from performing any heavy lifting, repeated forward bending at the waist, twisting at the waist, climbing or squatting.

This Court has held that the State owes a duty to inmates of its penal institutions to provide them with safe conditions under which to perform their assigned work. (Reddock v. State (1978), 32 Ill. Ct. Cl. 611.) The State also owes a duty to an inmate to supervise his work and to provide safe and adequate equipment. (Hughes v. State (1984), 37 Ill. Ct. Cl. 251.) This Court finds that the evidence presented by Claimant clearly shows that the State breached these duties by requiring Claimant to ride on the tractor as his only transport to his job assignment over roads known to be poorly maintained. This breach constituted negligence which was the proximate cause of Claimant’s injuries.

This Court finds that Claimant has suffered permanent injuries relating to his back and left left, incontinence and impotency. However, the Court takes into account the fact that Claimant was contributorily negligent by sitting on the front of the tractor and not warning the driver of the pothole which Claimant observed when he knew or should have known that the road was in a hazardous condition, which could cause him to be thrown from the front of the tractor.

This Court finds that, due to the State’s negligence, Claimant was damaged in the amount of $150,000. However, Claimant must be considered equally responsible for his injuries and this Court must assess his contributory negligence at 50%, reducing the award to $75,000.

It is therefore ordered that the Claimant be granted an award of seventy-five thousand dollars ($75,000.00).


author: Dillard, J.

text:
    (No. 83-CC-0610
    Edward J. Kirby, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 24, 1990.

    Patrick Mahoney & Associates, P.C. (Donald Crowe, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   Dillard, J.

This cause comes on to be heard following the Commissioner’s report.

Claimant, Edward J. Kirby, filed his complaint for personal injury against Respondent pursuant to section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1987, ch. 37, par. 439.8(d)).

Background

On May 30, 1982, Claimant was riding his motorcycle with two companions southbound on Route 50 near Hobbie Avenue in Kankakee County, Illinois. Claimant testified that he was an experienced motorcyclist, but had never driven on the particular portion of the roadway in question prior to the date of the accident which gave rise to this cause of action. Claimant was proceeding southbound in the far left lane of Route 50 between 6:00 and 6:30 p.m. He observed a sign warning of an S-curve as he approached Hobbie Avenue. While negotiating the curve, Claimant stated he hit a series of ripples in the road surface and potholes. He testified he had not seen the potholes in the pavement prior to driving through them. Claimant further stated that the front wheel of his motorcycle began wobbling and that he hit a deep hole which caused him to lose control of the motorcycle, proceeding across the double yellow center line and into the path of oncoming traffic where he struck a car.

Claimant was transported to St. Mary’s Hospital in Kankakee by ambulance where he was treated for bruises and lacerations to his face and arms and severe trauma to his left foot and leg. On June 7, 1982, Claimant’s left foot and lower leg below the knee were amputated. Claimant was hospitalized for a period of two weeks. The Social Security Administration declared Claimant disabled for 15 months as a result of his injuries. Claimant received a prosthetic device approximately 18 months after the amputation. Claimant testified he had attempted to obtain employment but has not worked since the accident in 1982. He received his GED in 1987. In Claimant’s Exhibit 1, admitted into evidence by stipulation of the parties, Claimant’s physician, Dr. Morris Lang, on April 15,1983, stated that Claimant could eventually pursue a sedentary job with limited walking and standing requirements. Claimant testified that he can now walk about a mile while wearing his prosthesis without difficulty.

Claimant’s total stipulated medical expenses are $5,574.15. All hospital expenses were paid by general assistance. Claimant seeks an award of $100,000 to include medical expenses, pain and suffering and inability to resume his former occupation as a truck driver and furniture mover.

Law

Claimant alleges Respondent negligently maintained the roadway despite actual and/or constructive notice of the existence of defects in the road surface and/or failed to erect warning signs or signals indicating the condition of the surface, which negligent acts and omissions proximately caused Claimant’s injuries.

It is well established that while the State owes a duty of ordinary care in the maintenance of its highways, the State is not an insurer of persons traveling thereon. (Hollis v. State (1981), 35 Ill. Ct. Cl. 86, 88.) The State need only maintain its roads in a reasonably safe condition. “The burden is on Claimant to show that the State had actual or constructive notice of defects that cause injuries. The mere fact that a defective condition existed, if in fact it did exist, is not in and of itself sufficient to constitute an act of negligence on the part of the Respondent.” Cotner v. State (1988), 40 Ill. Ct. Cl. 70, 72.

The Record

Respondent asserts that Claimant failed to demonstrate by a preponderance of the evidence that Respondent negligently maintained the highway in question. The record reflects that a “State Improvement Report, Illinois Route 50, Section 140 W & RS Kankakee County” was prepared by Illinois Department of Transportation engineer Roger Wright in December 1980. The report included accident statistics for the intersection of Hobbie Avenue and Route 50 for the years 1974 to 1978. During that period, 93 accidents were reported with 36 injuries. Engineer Wright testified that he had made a speech at an information hearing on September 23, 1980, held to acquaint the public with an improvement project for the intersection of Hobbie Avenue and Route 50 in which he had stated that the intersection was “dangerous at best.” The record also includes three articles from local newspapers regarding said hearing and referencing the dangerous intersection. Moreover, the improvement plan, which was subsequently funded and implemented, widened and straightened Route 50, signalized the intersection, and resurfaced the pavement to improve drainage.

Both the State engineer and field maintenance engineer Mulholland testified that their inspections did not disclose the existence of potholes or other surface problems serious enough to warrant immediate repair or warning signs. The maintenance engineer testified that although he traveled the road in question every day, he had seen no potholes. Mulholland alluded to a rippling effect in the pavement but stated he did not recall receiving any complaints regarding the condition of the roadway. He further had no recollection of receiving a copy of the accident report in this case which specifically included a notation by the investigating police officer that the road surface was in poor condition and dangerous for two-wheeled vehicles. Mulholland also stated his field officer did not keep copies of complaints. He had no recollection of ever patching the area in question.

Claimant presented photographer Don Walpole who took photographs and movie film of the accident vicinity on June 24, 1982, less than one month after the occurrence. The photographs and movie were admitted into evidence without objection by Respondent. Both Mr. Walpole’s photos and movie and a photograph introduced by Respondent show evidence of cracks, ripples and potholes of varying size in the road surface.

Claimant also presented Dr. Ronald Ruhl, an engineering professor and accident reconstruction expert. Dr. Ruhl testified that upon the basis of his review of the photographs of the roadway, Claimant’s motorcycle, the police report and the deposition testimony of Officer Sheehan, that Claimant’s front wheel had “channelized” in a pothole causing Claimant to lose control of his motorcycle. Dr. Ruhl stated that the front wheel of the motorcycle had two distinct dents which were, in his opinion, caused by the impact with the pothole in the case of the smaller dent and the impact with the automobile in the case of the larger dent.

Officer Lynn Sheehan, a veteran officer with the City of Kankakee, was subpoenaed to testify by Claimant. Officer Sheehan testified of his personal knowledge of the poor condition of Route 50 and stated he is a motorcyclist. He was the investigating officer sent to the scene immediately after the accident. Officer Sheehan made a notation on his report stating: “This area of the road is in bad condition and is particularly bad for two-wheeled vehicles.” Officer Sheehan’s report was admitted into evidence. He stated that he felt a large pothole located in the seam of the two southbound lanes of the roadway caused the accident.

Officer Sheehan stated that he did not interview the Claimant at the scene as Claimant was in the care of paramedics and appeared unconscious. No occurrence witnesses appeared at the hearing. The officer’s report indicates that the other driver and witnesses stated Claimant was not exceeding the posted speed limit of 30 m.p.h. No evidence was presented to disprove that Claimant was traveling the roadway legally.

Conclusion

Claimant’s exhibits, coupled with the testimony of his witnesses, were persuasive in proving that the State had notice of the deteriorated condition of Route 50. The State’s engineers’ testimony demonstrated awareness of the “washboard” effect of the pavement caused by drainage problems and heavy traffic. The State had been aware of these problems for almost two years prior to the accident. These facts indicate that the State was negligent in its failure to either perform necessary repairs or erect proper signs warning the public of the rough road. The testimony of Claimant, Officer Sheehan and Dr. Ruhl is persuasive in ascertaining that the negligence of Respondent was the proximate cause of Claimant’s injuries.

There is no evidence of contributory negligence on the part of Claimant. Respondent argues that Claimant’s admission of drinking two “highballs” several hours prior to the accident should be considered contributory negligence. No evidence of impairment or intoxication was offered to substantiate this allegation.

Claimant’s total stipulated medical bills are $5,574.15. As he was not employed at the time of the accident, lost wages, per se, were not included in Claimant’s petition for damages. Claimant has been unable to find employment since the accident and has experienced significant pain and suffering with the loss of his left leg.

Therefore, it is ordered, adjudged and decreed that Claimant is awarded $100,000 in full and complete satisfaction of this claim.