author: Raucci, J.

text:
    (No. 88-CC-0556
    Della Keene, Guardian for Darrell W. Cope, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 18, 1997.

    Womick & Associates (John Womick, of counsel), for Claimant.
    James E. Ryan, Attorney General (Deborah L. Barnes, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

This is a tort case for injuries sustained by a passenger in a vehicle that was being driven through a State park. Claimant is the guardian of the injured Darrell W. Cope. For convenience, Darrell W. Cope is referred to in this opinion as the Claimant.

The vehicle in which the injured Claimant was a passenger left the roadway and struck a tree growing near the edge of the road. Claimants basic argument is that, in the design and maintenance of the road, Respondent had failed to maintain a proper “free zone” along the edge of the park roadway, so that cars leaving the traveled surface of the roadway would have an opportunity to regain control without striking trees or other obstructions. There is little doubt that the Claimant suffered catastrophic injuries as a result of this unfortunate accident. Respondent takes the position that the provision of a so-called “free zone” was not applicable to a road through a State park, and that there was no negligence by Respondent in the design of the park road.

The injured Claimant testified that he was 36 years old and one of three passengers in a car being operated through the park on September 1,1985. He was seated in the front seat on the passenger side. It was about 9:45 p.m. and a raccoon ran across the road. Claimant estimated that the driver was operating the vehicle at 20 or 25 m.p.h. Claimant described the road as a narrow, curvy, two-lane road. Claimant described the horrendous injuries sustained by him in this accident.

Edward Allen Reeder testified by evidence deposition on behalf of the Claimant. Reeder is the Director of Public Works for the City of Carbondale. Reeders department is responsible for all roads in the city Emits of Carbondale. Reeders duties include the design of new streets and improvements to the streets as well as maintenance of the street system within the City of Carbondale. Reeder is a 1972 graduate of Southern Illinois University with a degree in civil engineering technology, and became a registered civil engineer in the State of Illinois after passing two eight-hour examinations in 1981. While he was in school, he worked for the Illinois Department of Transportation in Carbondale in August 1973. In its design and construction of roads and streets, the City of Carbondale uses all of the Illinois Department of Transportation standards in its projects.

At the request of Claimant, Reeder examined a road constructed by the Illinois Department of Conservation at Kincaid Lake. Reeder looked at the drawings by IDOT and reviewed the materials, plans, and specifications for the design of the roadway. Reeder went to the site and looked at the roadway. Reeder stated that it was his opinion, after reviewing the drawings, cross sections of the drawings, and what’s in the field, that there have “been some modifications, possibly, to what’s built there.” When asked whether the modifications from the design constituted a deviation from the standard of care in the construction of the roadway in question, Reeder stated: “[T]hey deviated from the original standards if you look at the AASHTO standards, the clear zones. I am sure they were trying to save some trees. They tried to restrict their, clear zone, and they probably should have been a little further than they are.” Reeder testified that the applicable standard for a “clear zone” at the time of the construction of the roadway in question, for speeds of less than 40 m.p.h., “is ten foot from the edge of the pavement.” A “clear zone” is to clear anything within that zone to give someone reasonable opportunity to recover if they run off the roadway. When asked if the drawings for the design of the roadway contained a clear zone of ten feet, Reeder replied that “the general note showed that it was toe of slope, top of cut, or five foot from edge of pavement. No, they did not probably have ten feet.” Reeder testified as follows:

“Q. They had a five foot clear zone?

A. Or where the toe of slope or the top of cut was. It could be greater than. I didn’t look at all the cross sections. The particular area where the tree was hit, they only showed about five feet.

Q. In your opinion, did that deviate from the standard required in the design and construction of such roadway at the time?

A. Yes.”

Reeder identified Plaintiff’s Exhibit No. 4 as a photograph portraying the roadway in question and the tree in question. The tree shown in Exhibit No. 4 is four-tenths of a mile north of the intersection of the access road and Route No. 149. Reeder identified Exhibit No. 1 as constituting the plans, drawings, and specifications for the roadway. Exhibit No. 2 is a plan profile of the roadway between stations 19 and 20 that Reeder marked with an "X.” The marking may not be exact. The “X” marked on Exhibit No. 2 correlates with the photograph identified as Exhibit No. 4. Reeder testified that the standards in existence “at the time” required a clear zone in the area shown in Exhibit Nos. 2 and 4 of ten feet from the edge of the pavement. These are the AASHTO standards used to design roadways. In Reeders opinion, building the roadway in question with a clear zone of less than ten feet was a violation of the standards of care for an engineer and for Respondent in constructing the roadway.

The tree that was struck by the vehicle in which the injured Claimant was a passenger was located approximately four feet from the edge of the pavement. Reeder testified that, from the curved configuration of the roadway, if a driver missed the curve, the vehicle would strike the tree as happened in this accident. Reeder testified that the tree should have been removed during road construction. Reeder testified that the failure to remove the tree during construction contributed to cause the accident in this case. If the “clear zone” had been wider, the driver of the vehicle would have had more of an opportunity to recover control of the vehicle.

On cross-examination, Reeder said that the AASHTO book adopted by the Illinois Department of Transportation does not have a séction on park roads. The book does have a section on rural local road systems. In Reeders opinion, the road should have a shoulder “if you look at the standards” of four feet. There were four feet between the edge of the pavement and the tree that was involved in this accident. A four-foot shoulder is fine according to Reeders opinion. Reeder testified on cross examination as follows:

Q. “In this situation, a four foot shoulder is fine; is that your opinion?

A. There should be a four foot shoulder, if that’s what you’re asking.”

Reeder stated: “I think the shoulder should be there. It gives an opportunity to recover. With that tree being so close, she didn’t have a chance to recover; she hit it. It was in the area that should have been cleared in the drawings.” Reeder further testified on cross-examination as follows:

Q. “The question was, could you say that but for the tree, the accident would not have happened?

[CLAIMANT’S ATTORNEY OBJECTS]

A. No.”

Reeder stated that he doesn’t go to many parks and has not designed roads for a State park.

On re-direct examination, Reeder testified that, in his opinion to a reasonable degree of certainty as an engineer, the ten-foot clear zone applied to the roadway in this case. The basis of his opinion was that the roadway in this case is a rural road and no different than a township road even though the road may be in a park. Decisions about the clear zone are based on the location of the road, the anticipated speed that drivers will drive on that roadway and the amount of traffic from the roadway. Applying these factors, Reeder believed that there should be a ten-foot clear zone. The purpose of designing a ten-foot clear zone is to allow drivers to have an opportunity to recover prior to running into something. The clear zone is not designed to have a driver bring the vehicle to a stop. In Reeder’s opinion, if a tree was located four feet off the roadway, it would be impossible, in a case like this, for the driver to recover because the tree is too close.

There is no distinction between the term “shoulder” and the term “clear zone” — the shoulder and clear zone run together. Reeder then testified as follows:

Q. “But the shoulder and the clear zone are not the same length? — The same width? You said here the clear zone should be ten feet.

A. The shoulder should be about four feet; ten feet total.

Q. Ten feet for the clear zone and the four foot shoulder?

A. Total of ten.

Q. Four, and six more?

A. Yes."

In looking at the cross-sections, Reeder testified that the general note said that they should clear to the toe of slope, to the top of the cut, or five feet from the edge of the pavement, whichever is greater. Reeder testified:

“looking at, say, this cross section right here, 21 plus 28; 37 left."

Reeder affixed a circle on the lower right quadrant of deposition Exhibit No. 3 and stated as follows:

“I’m trying to give you an example. This is the toe of slope. In other words, they’re supposedly building the road above the ground, so you’re going to have to slope down to meet the existing ground. In this particular cross section, they should have cleared out 17 feet to the toe of slope. They should have cleared everything in that zone on the left side of the roadway.”

Reeder then testified as follows:

Q. “You’re talking about from the centerline over?

A. Yes. 17 feet.

Q. Is that at the point where the accident occurred?

A. It’s down between 19 and 20.

Q. So would those — I think you alluded to this earlier when we were talking. I thought you had said it should be 16 to 17 feet.

A. Somewhere between — I never went out and actually measured the stations on the ground, but I can tell you that the accident happened between stations 19 and 20 and somewhere between 16 and 17 feet, which is the toe of slope in that area. Which the drawings show a toe of slope, but there’s not toe of slope in that area because it’s just flat. They should have cleared out 16 to 17 feet.

Q. So there should have been 16 to 17 feet of clear area from the centerline to the edge of the clear area?

A. Yes.

Q. Okay.

A. By these drawings.”

On further re-direct, Reeder testified that, in his opinion, the road was not built in compliance with AASHTO standards. When the road was constructed, Reeder does not think they cleared out to the toe of slope in this particular case, and that failing to do so was a violation of National Standards, and a violation of the design of this particular roadway.

Robert Catt, the park site superintendent for the Respondent, was called and testified on behalf of Respondent. Catt was present on-site when the road was constructed. Catt sat in on meetings for input with planning people, engineering people and other staff. Several things are taken into consideration in the construction of a park road including use, access to or from a particular area, and natural resources. As little of the natural resource as possible is destroyed. This often means putting more curves in a road to try to make things more natural and as aesthetically pleasing as possible. The speed of vehicles is taken into account. Exhibit No. 1-A was the site of the accident showing the scarring on the tree. At the time the photographs were taken, the tree was larger than it was at the time of the accident. The photographs in Respondents Group Exhibit No. 1 show different pieces of road within the State park, road surfaces and the proximity of trees to the edge of the road. Photograph 1-D shows a “slow” sign above the accident a couple of hundred feet north. The speed limit at the site was 30 m.p.h. Photograph 1-H depicts an area 300 or 400 feet south of the accident site showing a steep curve or sharp curve to the right which is marked with a 15 m.p.h. posting. The distance from the edge of the road to the tree that was impacted in this case was approximately four feet. It was 16 feet from the centerline of the road to the edge of the tree. There had been no previous accidents at the site where this accident occurred.

Catt has been in, and is familiar with, at least 30 other State parks in the State of Illinois. The road construction at the State park in question is typical of some of the southern Illinois parks as portrayed by the photographs in the group exhibit. The type of road involved in this accident serves an aesthetic function, as many trees as could be were left to serve the beauty of the park and the integrity of the beauty of the park.

On cross-examination, Catt stated he had no background in engineering, and his involvement with the roads put in the park would have dealt with his concern regarding aesthetics. The road was designed with gentle curves following an old roadbed that was originally there rather than creating a new alternate route because of the tremendous amount of destruction that a new alternate route would have caused. It was not Catt s responsibility to make sure that the road was being put in in accordance with State or National road constructions. The photographs of the access road show an estimated 40 or 50 trees that are within ten feet of the roadway.

The access road serves a marina with 300 to 400 boats. On the date of this accident, it was a major holiday weekend and there was a lot of traffic on the access road. Catt estimated that over 1,000 vehicles would travel the road on a typical holiday weekend each day. Catt was not familiar with standards of the American Association of State Highway and Transportation Officials. Prior to this accident, Catt recalls estimating that he has had notice of two vehicle accidents involving vehicles and trees, one of which involved a fatality. The accident involving a fatality involved a tree 35 or 50 feet off of the right-of-way.

Claimants contentions of liability against Respondent are predicated entirely on the proposition that Respondent owed a duty to Claimant to construct and maintain the Lake Kincaid Marina access road and its appurtenant lands through Lake Murphysboro State Park in accordance with the standards set forth in the road’s design specifications and the standards of AASHTO (American Association of State Highway and Transportation Officials). Claimant’s expert testified that the design specifications on the road required a clear zone of five feet from the edge of the pavement, and the AASHTO standards required a useable shoulder of at least four feet from the edge of the pavement, and a clear zone of ten feet from the edge of the pavement. There is no dispute that the Respondent allowed mature trees to grow within ten feet of the edge of the roadway and that the Claimant’s injuries were sustained when the vehicle in which he was a passenger left the traveled portion of the roadway and collided with a mature tree that was four feet off of the edge of the traveled portion of the road.

In support of his position, Claimant cites Lucht v. State (1983), 36 Ill. Ct. Cl. 248. In Lucht, the Claimant fell in a State parking lot that was icy. This Court denied the claim, stating that to require the State to remove snow and ice that had accumulated over a period of a few hours before an accident on State parking lots would put the State in a position of being an insurer. Claimant also cites Harder v. State (1991), 44 Ill. Ct. Cl. 235. The Harder decision denied a claim by an 80-year-old woman who sustained injuries when she fell on a step at the Old State Capitol Ruilding. The decision was based on a failure to show actual or constructive notice of a dangerous or hazardous condition.

Claimant cites Siefert, et al. v. State (1989), 42 Ill. Ct. Cl. 8. We held that, where the shoulders of a highway are in poor repair and unreasonably dangerous and a car is caused to go out of control after having left the main traveled portion of the highway as a result of poor maintenance and repair of the shoulders, and the State has actual or constructive notice of the condition, the State is liable for damages proximately resulting therefrom. The Siefert case followed Welch v. State (1966), 25 Ill. Ct. Cl. 270, which found liability in a case involving extremely hazardous conditions existing on the shoulder of a road, and involved a truck evidently intentionally attempting to pull onto the shoulder to avoid an accident. The Court stated:

“It is clear that the Respondent is required to maintain the highway and the shoulder in a manner reasonably safe for its intended purposes. Obviously, the standard of care is higher for the highway than the shoulder, since the reasonably intended use of the highway requires a greater level of care than the shoulder.
We hold that if the facts in a case show that the State has caused a dangerous condition by neglecting to maintain the shoulders of the highway, after having had actual or constructive notice of the defect requiring such maintenance, it is reasonably foreseeable that an injury may result therefrom. If that dangerous condition of the shoulder is a proximate cause of an injury that is sufficient to establish liability." 42 Ill. Ct. Cl. at 13, 14.

The Siefert opinion, supra, observed that an expert witness on behalf of the Claimants had testified that the condition of the shoulder caused the vehicle of the Claimant to come back onto the highway causing the accident from which the injuries arose. 42 Ill. Ct. Cl. at 15.

Additionally, Claimant cites Protective Insurance Co. v. State (1994), 46 Ill. Ct. Cl. 86. In that case, there was an award for Claimant arising from a vehicle accident after Claimants vehicle was deliberately driven onto a shoulder which was later determined to have a drop-off from the highway pavement six inches deep that extended for approximately one mile on either side of the accident site. The evidence was that the drop-off had existed for at least three years and possibly ten years. Expert witnesses testified that the six-inch drop-off was an unsafe condition that contributed to the accident. A large award was made to the Claimant.

Claimant cites Wilson v. State (1989), 41 Ill. Ct. Cl. 50, a wrongful death case, where it was alleged that the decedent was a passenger in a vehicle that suddenly left the traveled portion of a highway and struck a tree 15 feet from the east edge of the paved portion of the roadway. Evidence was introduced as to the standards for clearance of trees from the right-of-way along the side of the roadway. The evidence was clear that the standard recommended at the scene of the Wilson accident on Route No. 37 in Fayette County, was a distance of ten feet off the edge of the roadway. This Court stated as follows:

“Claimant's second premise [State negligent in not removing tree within 15 feet of edge of roadway] fails because the evidence shows that the standards introduced into evidence recommend a 10 foot clearance zone in the area of Route #37 where the accident occurred. Since the tree was 15 feet from the edge of the roadway, the standard does not apply to that tree. The State was within compliance of recommended standards. There is no duty upon the State to clear every possible source of injury from areas in the more remote proximity of the roadway. A legal duty requires more than the possibility of occurrence, and the State, like any other person, is charged with such a duty only when harm is legally foreseeable, [citing cases.] The issues of “foreseeability” and “duty” involve a myriad of factors, including the magnitude of the risk involved, the burden of requiring the State to guard against the risk, and the consequences of placing such a burden on the State, [citing case.] It is the finding of this Court that a consideration of all these factors leads to the conclusion that the State had no legal duty to remove the tree in question before the accident.” 41 Ill. Ct. Cl. at 55.

Claimant reasons from the opinion in the Wilson case that the presence of the tree in the case at bar four feet from the traveled portion of the roadway is evidence of Respondents breach of duty to Claimant.

Respondent interprets the evidence to suggest that standards were not violated in this case. Further, Respondent argues that the standards on which Claimants expert relied addressed “rural local road systems” and did not address park roads. Respondent further argues that the evidence showed only that Respondent had created a condition by which injury was made possible, and that the negligence of Respondent was not the proximate cause of the injury, arguing that the independent acts of the driver of Claimants vehicle broke the causal connection between the alleged original wrong and the injury. Thus, according to Respondent, it was the action of the driver of Claimants vehicle that caused the accident, and not a condition of the lands adjacent to the roadway.

Surprisingly, neither Claimant nor Respondent offered evidence concerning the standards used for roads primarily used as access for recreation in State parks.

From the testimony and the photographs offered and received in evidence, it is perfectly clear that it was intended by those designing and constructing this road to preserve the trees for aesthetic purposes. The close proximity of many large trees within a few feet from the edge of the road would be perfectly obvious to anyone making use of the road. At the site of the accident, speeds of vehicles using the road were limited to 30 m.p.h. There was no evidence that a vehicle at the scene of this accident being operated within the speed limit could not be safely driven on the marina access road. We are asked to hold that Respondent chose aesthetic considerations in allowing trees to remain close to the traveled portion of the road at its peril, and further, that if motorists using the road left the traveled portion of the roadway and struck a nearby tree in the forest, Respondent is liable to answer in damages for injuries sustained. It is obvious that the road in question in this case was not designed or constructed as an all-purpose State highway. Its purpose was to provide access to a State park and lake for recreation and the support services attendant thereon.

Respondents decision to build the road in such a way as to preserve trees closely adjacent to the road surface was certainly intentional, and not a result of inadvertence or mistake. A driver operating a vehicle through this State park could not be misled or surprised by the presence of a tree within four feet of the edge of the traveled roadway. There were trees close to the edge of the traveled roadway throughout the park road system as demonstrated by the photograph exhibits. Furthermore, it does not seem unreasonable to suggest that a person using reasonable care in the operation of a motor vehicle along this park roadway could expect and anticipate that wild animals may cross the roadway from time to time in such a manner as to interfere with vehicular traffic. The proximate cause of this tragic accident and the horrendous and permanent injuries to the Claimant was not the decision of the State to build a park recreation road with trees close along the sides of the road, but was instead, the manner of operation of the vehicle in which the Claimant was a passenger.

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


source: Caselaw Access Project

author: Frederick, J. Frederick, J.

license: Public Domain

text:
    (No. 88-CC-1121
    Joseph P. Kowasz, Individually, and as Administrator of the Estate of Kevin Kowasz, Deceased, Cynthia Kowasz and Melissa Kowasz, a Minor, by Joseph Kowasz, her Father and Next Friend, Claimants, v. The State of Illinois, Respondent.

      Order filed January 12, 1994.

      Opinion filed January 9, 1998.

    Albert Koretzky, for Claimant.

      James E. Ryan, Attorney General (David S. Rodriguez, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Frederick, J.

This matter comes before this Court on Respondent, State of Illinois, Department of Transportations motion to dismiss the complaint and this Court, being fully advised in the premises, hereby finds as follows:

At the time of the accident, the location at which Claimant alleges negligence occurred was not under the jurisdiction of the State of Illinois. The Court of Claims Act, as well as the administrative rules of the Court of Claims, require that a Claimant exhaust all judicial remedies prior to bringing a claim before this Court.

In the instant case, as noted above, the location of the accident was not under the jurisdiction of the State of Illinois. Thus, Claimants are obligated to initially seek a remedy with respect to the entity which did have jurisdiction. Claimants have not done so.

Therefore it is ordered, adjudged and decreed that the Respondent’s motion to dismiss is granted, and that this action is dismissed, with prejudice.

OPINION

Frederick, J.

Claimants, Joseph Kowasz, administrator of the estate of Kevin Kowasz, deceased, Cynthia Kowasz and Melissa Kowasz, a minor, by Joseph Kowasz, her father and next friend, filed their claim sounding in tort in the Court of Claims on October 28, 1987. Claimants allege that, on December 13, 1985, Kevin Kowasz was killed and Cynthia Kowasz and Melissa Kowasz were severely injured due to the State’s negligent maintenance and operation of Rodenburg Road near its intersection with Irving Park Road in Roselle, Cook County, Illinois. Claimants have alleged that the State knew that said intersection was extra hazardous to the driving public and particularly to vehicles proceeding southerly and northerly on Rodenburg Road at the intersection with Irving Park Road.

The Facts

On December 13, 1985, Cynthia Kowasz, a resident of Hanover Park, drove her car into the intersection of Illinois Route 19 and Rodenburg Road in Schaumburg, Illinois. At that time, her Chevrolet Chevette was struck broadside by an eastbound vehicle on Route 19. Kevin Kowasz, Cynthia’s two-year-old son, was sitting in the front passenger seat. Claimant, Melissa Kowasz, an eight-year-old daughter, was seated in the rear seat. As a result of the impact, Kevin Kowasz died of head injuries two days later. Both of the vehicles involved were totally destroyed. This action was brought on behalf of the estate of Kevin Kowasz by his father and by Cynthia and Melissa Kowasz, individually.

At the time of the collision, Route 19 and Rodenburg Road intersected at right angles with one lane of traffic on each road for each direction. There was north-south traffic on Rodenburg Road and east-west traffic on Route 19. The State admits it was in control of this intersection. There were stop signs for the vehicles on Rodenburg Road and the speed limit for Route 19 was 45 miles per hour. The evidence reveals that the volume of traffic on Route 19 made the intersection dangerous to vehicles in all directions. Furthermore, the Illinois Department of Transportation had known of the problem for years before the Kowasz vehicle was involved in the collision before the Court.

Located adjacent to the intersection on the northwest comer was the Chicago area office of AMP Incorporated, a Pennsylvania company. In August of 1983, the regional office manager of AMP, Mr. John W. Mercer, sent a letter to the district engineer of IDOT expressing a deep concern for the safety of all occupants of vehicles which used that intersection, and, specifically, for the safety of his employees who entered the intersection after exiting the building. Mr. Mercer occupied an office which afforded him a direct view of the intersection and he told the engineer that,

“Daily I hear numerous screeching of tires and see numerous near misses at this intersection. During the past month, four AMP employees, myself included, have come literally within inches of injury or possible death exiting to Irving Park Road ,,!I cannot stress my concern in regard to safety of my employees and the public on Irving Park Road enough.”

In response, Mr. Mercer received a letter from IDOT indicating that the intersection should be realigned and channelized, requiring land acquisition. Nothing was done to improve the safety of this intersection after Mr. Mercers letter.

As it turned out, this was not the first written warning the State had received regarding the dangers of this intersection. In March of 1983, the Village of Schaumburg director of engineering expressed his concerns for the safety of the public in general and the employees of AMP as they entered that intersection. Obviously, Mr. Mercer had been contacting other governmental agencies before he wrote the State. In response to this letter, the speed limit on Illinois Route 19 was reduced from 50 miles per hour to 45 miles per hour. Additionally, the State, after reviewing traffic volume at the intersection, concluded that traffic signals were needed at the intersection. On August 26, 1983, a service inquiry was made by an IDOT employee, Robert Murzyn, who lived within blocks of the intersection. In his inquiry, Mr. Murzyn informed IDOT that on the previous evening, he was awakened by an accident at the intersection and he called the local police. Mr. Murzyn also stated that it was the sixth such accident which had awakened him in the previous eight months. He further indicated that this inquiry was not the first time he had mentioned the intersection to IDOT employees, but that no steps had been taken to make the intersection safer.

In October of 1983, the Village of Schaumburg, through its director of engineering, informed the State that the Village did not believe an application for federal matching funds would be appropriate under the circumstances presented. It also pointed out to the State that Schaumburg did not control the complete intersection and that matching funds by the other governmental entity would be highly unlikely. The engineer also suggested that the State and Village continue to monitor this intersection with the hope that safety funding could be approved within the next 12 months. This letter was in response to an IDOT suggestion regarding the pursuit of financing for the intersection. In November of 1983, the State wrote Schaumburg again, requesting it to reconsider its position on funding, suggesting that Schaumburg could prepare the necessary documents in a shorter time than the State.

In the spring of 1984, communications occurred between the local State representative and IDOT. Who instigated those communications is unclear from the record. It is clear, however, that the previous correspondence relative to the location was provided to the State representative and that a district engineer told her that traffic signals were warranted and needed at that location. In May of 1984, the Department reviewed the accident statistics for that location for a period of five years. In a memo dated May 21, 1984, an IDOT official warned of the large number of right angle collisions and the rising number of total collisions at that intersection. He urged that the State should not wait for the Village of Schaumburg to sponsor an improvement before the Department of Transportation took action, predicting that the likelihood of a serious collision was very great at this intersection with the high speed limit on Irving Park Road. Also in May of 1984, a meeting took place between representatives of AMP Incorporated and representatives of the Village of Schaumburg. Afterwards, Mr. Mercer sent a letter to Schaumburg which memorialized the conversation that took place during that meeting and the IDOT engineering department and the Illinois State Representative were copied on that letter. It is clear from the letter that the discussions which took place included the review of the possibility of installing traffic signals at the intersection. The State’s position that geometric improvements would have to be made before the State would consider the installation of a temporary traffic signal was articulated to the representatives of the corporation. The cost of making these changes was discussed and the representatives of AMP Incorporated even considered that the company might be willing to contribute to those costs. While the record is unclear whether the company ever followed through on a specific commitment, the discussion by a private entity to contribute to a State improvement for safety purposes highlights the concern which these people had for the safety problems at the location. Also by May of 1985, another State Representative was in contact with the Illinois Department of Transportation, requesting information and status on the installation of temporary traffic signals at the location. The district engineer for IDOT, in response to that request, indicated that, without support from the local municipalities, temporaiy widening of Illinois Route 19 prevented the use of temporary signals and the State could not expect approval for permanent realignment and signals until fiscal year 1988. However, this position evidently changed in the ensuing months. By October of 1985, the same state engineer informed the State Representative that the Department had decided to proceed with the installation of temporary signals without interim widening work, and that such installation would be operational by December 31, 1985. While this was occurring, Illinois State police had started to direct traffic at the intersection during rush hours because of the traffic volume at the intersection. Construction on nearby Roselle Road had forced even more traffic onto Irving Park Road, mandating police intervention at the intersection. As of October 31, 1985, the Department of Transportation recommended continued police presence at the intersection during peak hours until the temporary signals were installed. On the date of the accident, there were no police at the intersection of Illinois 19 and Rodenburg Road. The record contains no explanation for their absence in spite of the IDOT recommendation that police be present during the peak traffic hours.

Kevin Kowasz was killed as a result of the collision. Cynthia Kowasz suffered a fracture of her pelvis, bladder contusions, low back injuries, and psychological difficulties. The total medical bills for Cynthia Kowasz related to this collision totaled $3,258.01. She also had a loss of earnings totaling $2,475, as she was off work for seven weeks. Melissa Kowasz suffered multiple bruises and psychological difficulties as a result of the collision. Her total medical expenses were $440.

During oral arguments, counsel for Claimants indicated that Kevin Kowasz’s case was settled for more than $100,000 and that his claim was now moot in this Court. Additionally, Claimants’ counsel indicated at trial that the death case was settled with Mr. Hodges’ insurance company and an underinsured motorist coverage for over $200,000.

Claimant, Cynthia Kowasz, was going south on Rodenburg Road. She stopped at the stop sign and waited about five minutes for traffic to clear so she could get across Route 19. She looked both ways and eventually saw • no traffic to her left and only one car approaching on her right. The car on her right was by a billboard. She believed she had enough time to cross the intersection. However, as she pulled out and looked again to the right, the headlights were right on top of her. She screamed and was then knocked unconscious. She was taken to Alexian Brothers Hospital and later to Lutheran General Hospital. Claimant had four fractures in her pelvic area. She was released on the 16th. She was unable to work. She went from a wheelchair, to crutches, to a cane. She was in a wheelchair for two weeks. Claimant testified to great pain and the inability to sleep during part of her recovery period. It took her two months to walk without the assistance of crutches or a cane. She also attended a group for bereaved parents for seven years. At the time of trial, she complained of occasional problems with her pelvis requiring chiropractic aid.

Claimant, Melissa Kowasz, had to be pulled out of the car. She was knocked unconscious. When she came to, she started crying. She sustained scratches and bruises on her face and feet. She also saw a psychiatrist to deal with the loss of her brother.

The Law

The Court must first note that the Respondent has failed to file any affirmative defenses and failed to dispute any of the five requests to admit facts filed by Claimants. This Court has repeatedly held that the State is not an insurer of persons traveling upon its highways, but the State does owe persons traveling on its highways the duty of or- . dinary care in the maintenance of its highways. In order to recover on a claim of negligence, the Claimants must establish by a preponderance of the evidence that there was negligence on the part of the State, that the negligence was the proximate cause of the injury, and that the Claimant was not contributorily negligent. (Pochis v. State (1993), 46 Ill. Ct. Cl. 1.) Further, in order to prevail on a claim of negligent highway maintenance, a Claimant has the burden of proving that the State had actual or constructive notice of the dangerous condition. (Crowell v. State (1994), 46 Ill. Ct. Cl. 211.) The mere fact that a dangerous condition existed is not sufficient to constitute an act of negligence by the State. Ott v. State (1994), 47 Ill. Ct. Cl. 231.

The condition at the intersection at issue in this case was known to a number of IDOT employees for a significant time prior to the date of the accident. Only the State had the ability to effectively reduce the risks of entering the intersection. In the face of numerous and varied warnings that the intersection was dangerous, the State did little to lessen the danger except to reduce the speed limit five miles per hour on Route 19. The statistical data alone provided to the State indicated that the risk was increasing as the expansion of that area of the township increased. Something as simple as a further reduction of the speed limit on Route 19 might have decreased accidents at that intersection. Temporary signals which had been rejected in 1983 and 1984 were approved in the fall of 1985. On February 7, 1986, those signals, which had been considered inappropriate, were turned on with various State officials present. Unfortunately, for the Kowasz family, those signals were a few days late.

It cannot be said that the State reacted in a reasonable manner and fashion to the alarm raised by numerous individuals regarding the safety of this intersection. This Court has long held that while the State is not an insurer of the safety of the persons and the lawful use of the highways, it nevertheless has certain duties regarding dangerous conditions of which it has notice. The evidence in this case establishes that the intersection of Rodenburg Road and Route 19 was dangerous. The evidence and admissions further establish that the State had actual notice of this condition.

The area of concern for the Court is that there is no evidence before the Court as to just what it was that made the intersection dangerous. The most likely prospect is that because of the increasing amount of traffic on Route 19, those drivers on Rodenburg Road would become impatient trying to enter the intersection after stopping at their stop sign and trying to enter the intersection when it was not safe to do so.

In light of the traffic laws which require a driver at a stop sign to yield to approaching traffic which does not have a stop sign at an intersection, it is very hard to understand why the State did not plead an affirmative defense of the negligence of the driver of the Kowasz vehicle.

Having said this, we again note that Respondent failed to raise an affirmative defense and failed to dispute the five requests to admit which had the effect of establishing Claimants’ case. We, therefore, find that the State was negligent.

Based on the evidence presented, we find that the damages proved as to Claimant, Cynthia Kowasz, are as follows:

(a) Medical bills $ 3,258.01

(b) Lost earnings $ 2,475

(c) Pain & suffering $46,000

We find that the damages proved as to Claimant, Melissa Kowasz, are as follows:

(a) Medical bills $ 440

(b) Pain & suffering $ 4,000

Based on the foregoing, it is hereby ordered:

A. That the claim of Joseph Kowasz, administrator of the estate of Kevin Kowasz, deceased, is dismissed and stricken with prejudice.

B. That Claimant, Cynthia Kowasz, is awarded $51,733.01 in full satisfaction of her claim.

C. That Claimant, Melissa Kowasz, now an adult, is awarded $4,440 in full satisfaction of her claim.


author: JANN, J.

text:
    (No. 88-CC-3484
    Andre Asbury, Individually and as Administrator of the Estate of Eleticia Asbury, Deceased, Claimant, v. The State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed April 6, 1998.

    John Patrick Healy, for Claimant.
    James E. Ryan, Attorney General (Sebastian N. Danziger, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

This matter coming to be heard on the Respondents motion to dismiss, due notice having been given, and the Court being otherwise duly advised in the premises;

The Court finds:

The Claimant brings this action individually and on behalf of his deceased daughter. The complaint alleges that the Respondents negligently returned the decedent to her natural mother, Violetta Burgas. As a result of the daughters return to her mother, the decedent was eventually murdered by her mother and another individual named Elijah Stanciel. No suit has been filed against either the natural mother or Elijah Stanciel.

The Respondent has filed its motion to dismiss this action for the Claimant’s failure to sue the child’s murderers and for failing to state a cause of action.

As stated in Boe v. State (1984), 37 Ill. Ct. Cl. 72 and Lyons v. State (1980), 34 Ill. Ct. Cl. 268, this Court has consistently interpreted the exhaustion of remedies rule to be an inescapable requirement for filing an action in the Court of Claims. In Boe, this Court stated that it does not recognize any latitude or discretion on the part of Claimants to pick and choose whom they wish to sue. In Lyons, 34 Ill. Ct. Cl. at 272, this Court stated that section 25 and rule 6 of the Rules of the Court of Claims, “quite clearly makes the exhaustion of remedies mandatory rather than optional.”

In the case at bar, the Claimant had a cause of action against the child’s murderers. When the child was returned to her mother, the mother incurred the duty to protect and care for the child. (Midamerica Trust Co. v. Moffatt (5th Dist. 1987), 158 Ill. App. 3d 372, 110 Ill. Dec. 787, 793, 511 N.E.2d 964, 970.) The mother murdered the child with the help of a third party, Elijah Stanciel. In failing to exhaust obvious remedies against Burgas and Stanciel, the Claimant has failed to meet a mandatory requirement of maintaining an action in this Court.

We shall not rule upon Respondent’s second argument for dismissal based upon a theory of lack of duty owed to Claimants decedent by Respondents. The record before us does not provide enough evidence to make such a finding at this time.

This cause is hereby dismissed for failure to exhaust remedies against known tortfeasors pursuant to section 790.60 of the Court of Claims Regulations (74 Ill. Adm. Code 790.60) and section 25 of the Court of Claims Act. 705 ILCS 505/25.


author: Frederick, J.

text:
    (No. 88-CC-3915
    Harvey Duerst, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 29, 1998.

    Beger, Ferguson & Associates (Jerrold R. Beger, of counsel), for Claimant.
    James E. Ryan, Attorney General (Gary M. Griffin, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant filed his complaint sounding in tort on April 28, 1988. The cause proceeded to trial on an amended complaint. Claimant has alleged that Illinois State Trooper Mark Fritz fractured Claimants neck when he used excessive force to effect the arrest of Claimant on April 30,1987, in Winnebago County, Illinois.

The Facts

On the evening of April 30, 1987, the paths of Harvey Duerst and Trooper Mark Fritz of the Illinois State Police crossed in an area of southern Winnebago County. When Mr. Duerst left that location, he was under arrest, in the custody of Trooper Fritz, and was suffering from fractured vertebrae in his cervical spine. This claim is brought by Mr. Duerst for those injuries. How Claimant suffered those injuries is the subject of this cause of action, and whether Trooper Fritz violated the standards on the use of force is the pivotal issue in resolving this claim.

In April of 1987, Harvey Duerst was a 43-year-old assembly worker at the Chrysler Corporation plant in Belvidere, Illinois. He was married to Marcia Duerst, his wife since 1969. He resided in Rockford, Illinois, an area to which he had moved in 1966.

Mark Fritz, on April 30, 1987, was an Illinois State trooper whose responsibilities included the patrol of the southern area of Winnebago County. He had been a cadet with the Illinois State Police between June of 1986 and October of 1986. Prior to that time, he had been a deputy sheriff. On April 29, 1987, Trooper Fritzs shift began sometime after 11:00 p.m. At approximately midnight, Trooper Fritz was driving at the intersection of Blackhawk Road and Mulford Road. Trooper Fritz observed a vehicle partially stopped on Mulford. He also observed Claimant around that motor vehicle. There were no other vehicles or pedestrians in the area, which would most accurately be described as rural. Trooper Fritz activated his emergency light after he turned the corner but before he pulled up behind Mr. Duerst’s vehicle. Claimant moved his vehicle off the road at that time.

While there are many conflicts between the testimony of the Claimant and the trooper, there are certain undisputed facts which can be ascertained from the testimony. After a period of observation of Mr. Duerst and a conversation with him, the trooper required Mr. Duerst to do what are commonly referred to as field tests for sobriety. Claimant failed the field tests. Additionally, Trooper Fritz asked for the Claimants driver’s license. After satisfying himself that he possessed probable cause, the trooper informed the Claimant that he was being arrested for driving under the influence of alcohol and then placed the Claimant in the Illinois State Police car. We agree that Trooper Fritz had abundant probable cause to arrest Claimant for driving under the influence of alcohol. Up to that point, the Claimant had cooperated with the officer and complied with the requests made. After the arrest, the tenor of the conversation was more adversarial and the Claimant became anything but cooperative. In the squad car, the Claimant tried to persuade the officer not to arrest him but failed. In doing so, Claimant mentioned a prior DUI arrest. The officer informed the Claimant that he would have to be searched for weapons and he proceeded to open the passenger door of the squad so that the Claimant could exit. The Claimant decided, however, that the officer did not need to conduct the search since the Claimant had already informed the officer that Claimant possessed no weapons. It was this error in judgment on the part of Claimant which led to the physical altercation between the Claimant and the trooper. The Claimant refused the officers requests to exit the squad car of his volition. After several requests, the officer finally grabbed the collar of the Claimants coat and pulled Claimant out of the squad car. The Claimant was forced to lean against the car at the rear passenger door.

From the point that Claimant was leaning against the squad car, the testimony is in conflict. There is conflict as to whether Claimant pushed himself away from the vehicle or if the officer intentionally took the Claimant to the ground. There is conflict in the testimony as to the Claimants level of cooperation while he was being searched, but the more reasonable conclusion is that his cooperation did not increase once he was forcibly removed from the vehicle. The Claimant admits pushing the officers arm away during the search and in reaction to the touching of his genitals. The officer testified that the Claimant was so uncooperative that the search had to be discontinued. At this stage, because of the Claimants attitude and the conditions, either Trooper Fritz made the decision to ground the Claimant, a tactic which makes it easier to handcuff an uncooperative suspect, or the Claimant pushed off the vehicle and the two fell to the ground. Again, the Claimants version is contrary to the officers as to how he ended on the ground. In evaluating the credibility of the Claimant, it is difficult to disregard the conclusion of those medical personnel at Swedish Covenant Hospital who noted that the Claimant was acutely intoxicated when he arrived there. Additionally, the hospital testing revealed that the Claimant had alcohol levels in his blood of 311 milligrams per deciliter. These results were included in the medical records admitted as part of Dr. Ayers’ testimony. Regardless of an individual’s tolerance, this type of intoxication would impair a person’s physical and mental abilities to some extent.

In trying to determine how the Claimant landed on the ground, it is important to remember that the officer was trying to impose physical control over an intoxicated', uncooperative male who would not allow himself to be searched in a rural, desolate location. While intoxication does not render one’s legal protections meaningless, the dilemma it creates in the eyes of the arresting officer certainly weighs on the type of force necessary to obtain that control. If the Court adopts Claimant’s version of the events, the Claimant urges that less aggressive options were available to Trooper Fritz in this confrontation. He discusses a verbal warning to the Claimant before being taken down, but it is obvious that such a measure might very well be counter-productive with an uncooperative suspect. Under section 7 — 5 of the Criminal Code (720 ILCS 5/7 — -5), a peace officer’s use of force is codified. How much force an officer can use and when it can be used is delineated. The statute states:

“Peace officers use of force in malting arrest, (a) A peace officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened s * * force which he reasonably believes to be necessary to effect the arrest and of any force which he reasonably believes to be necessary to defend himself or another from bodily harm while mating the arrest. However, he is justified in using force likely to cause death or great bodily harm only when he reasonably believes that such force is necessary to prevent death or great bodily harm to himself or such other person, or when he reasonably believes both that:
(1) Such force is necessary to prevent the arrest from being defeated by resistance or escape; and
[b] 0 * * justified in using if the warrant were valid, unless he knows that the warrant is invalid.”

It is the Claimants position that, since he suffered a fractured cervical vertebrae, the officers use of force was excessive since he was only being arrested for misdemeanor offenses. However, that analysis presumes that the force utilized was “likely to cause death or great bodily harm.” Under the circumstances present in this case, that is not true. Force likely to cause death or great bodily harm does not normally include forcing or even throwing a person to the ground in an attempt to control him. The Claimants injury no doubt did occur while being thrown, forced or falling to the ground. The mechanics of the injury seem to suggest that the Claimant’s head hit the ground first, but in a struggle, that is not surprising. The Court cannot conclude that the officer intended to cause such a severe injury to the Claimant, nor that it was likely that the take-down, if that is what occurred, would result in such a severe injury. To characterize the fracture of the Claimant’s cervical vertebrae as the unfortunate product of this scenario in no way diminishes the nature of the injury or its consequences. Claimant was forced to endure a long and painful recuperative period which would be compensable under different circumstances. There is, however, no credible evidence from which a trier of fact can conclude that the trooper intentionally abused or battered Mr. Duerst or used force likely to cause great bodily harm during the arrest process or diat the trooper was negligent.

Again, even if the Court accepted Claimant’s version of events regarding the fall to the ground, we find that the force utilized by the officer cannot be said to have been excessive. It was not the type of force which was likely to cause death or great bodily harm, and because of the resistance encountered, it was justified at the time.

The Law

To prevail, the Claimant has the burden of proving by a preponderance of the evidence that the State’s agent was negligent or used excessive force. (Simmons v. State (1991), 44 Ill. Ct. Cl. 304; Robinson v. State (1994), 47 Ill. Ct. Cl. 364.) As heretofore stated, the trooper did not use force likely to cause great bodily harm. The trooper was not negligent and did not use excessive force under the totality of the circumstances.

The Court must also consider the credibility of the witnesses. (Jones v. State (1994), 46 Ill. Ct. Cl. 324.) The testimony of the Claimant and trooper are diametrically opposed on most of the crucial evidence in the case. We find the testimony of the trooper to be more credible. The trooper was acting professionally and with restraint. The proximate cause of Claimant’s injuries are the Claimant’s own conduct in failing to obey the lawful orders of the trooper when asked to exit the car. The trooper’s credibility is enhanced by the fact that instead of instituting a costly tow of Claimant’s vehicle, he let Claimant choose a friend to come and retrieve the vehicle. Knowing that a private citizen was on the way to obtain Claimant’s car keys at the scene, it is more probable than not that the trooper was not going to use excessive force on Claimant.

We find, based on the evidence, that Claimant was intoxicated, that he was upset that he was being arrested for driving under the influence of alcohol, could not talk his way out of it, and refused to step out of the trooper’s vehicle when asked several times. Claimant admits he tried to talk his way out of the DUI arrest and that he did not abide by the troopers order. Cláimant’s excuse that he was startled and didn’t think the trooper should have to search him is not accepted by the Court as a reason not to follow the officer’s lawful order. Claimant must follow all lawful orders of the officer or he is resisting or obstructing the officer. Claimant’s conduct started the process that led to his injury.

We further find that Claimant resisted the pat-down search of the trooper. A trooper has the right to search an arrestee incident to an arrest. An arrestee has no right to resist or obstruct a police officer making a lawful arrest. (720 ILCS 5/7 — 7.) Claimant resisted Trooper Fritz. Under all of the circumstances and in dealing with this intoxicated, resisting arrestee, this trooper acted reasonably.

We find that the trooper did not intend to use, nor did he use, excessive force. The result was unfortunate but was not intended nor the necessary result of the force used. Claimant’s conduct was the proximate cause of his injury

Based on the credible evidence, this Court finds that Claimant has failed to prove by a preponderance of the evidence that the Respondent was negligent or used excessive force during the arrest of Claimant. For the foregoing reasons, it is the order of the Court that Claimant’s claim be and hereby is denied.


text:
    (No. 88-CC-4169
    Raymond Von Moore, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 1998.

    Raymond Von Moore, for Claimant.
    James E. Ryan, Attorney General (Chad D. Fornoff, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

Claimant, an inmate with the Illinois Department of Corrections, seeks damages in the sum of $100,000 against Respondent, State of Illinois, arising from an alleged neck injury sustained by Claimant when an electrically operated steel door closed on Claimants neck. The complaint contends that the incident occurred at Stateville on June 2, 1987. There is little detail set forth in the complaint as to how the alleged accident occurred.

Claimant filed three post-hearing motions for summary judgment and “directed judgment.” The same motions were twice denied and our ruling herein makes the three subsequent motions moot. Two hearings were held on October 23, 1992, and June 14, 1995. Claimant filed a series of motions during the commissioners consideration of his recommendation to the Court which caused some considerable delay in our consideration of this cause.

The Claimant, now having adopted the name Raymond Von Moore, testified upon hearing that on June 2, 1987, at Stateville Correctional Center, Correctional Officer Kellogg opened an electronic steel door on Claimants neck when Officer Kellogg was supposed to open cell 1D05 and instead opened cell 1D09, which was Claimants cell. At the time, Claimant was apparently attempting to speak to another correctional officer concerning a phone call to his attorney. Claimant was apparently standing in his cell with his head stuck out of the “chuck hole.” The “chuck hole” is a hole for receiving trays, clothing, or items in and out of the cell without opening the cell door. The chuck hole was a foot long and six inches high. Claimant had his head through the chuck hole. For an inmate to stick his head out of the chuck hole is not a common practice. Inmates do this when they can’t contact an officer in the gallery so that they can look and see if there is an officer “going on another wing.” There is a rule against sticking any objects like mirrors or anything out of the chuck hole, but Claimant contends that he had no choice “because I couldn’t contact no officer.” Claimant contends that he had earlier spoken to his attorney’s office and had been told to call back at about 1:00. Claimant was trying to get the attention of a correctional officer so that he could obtain approval to make the call when this incident occurred.

The chuck hole is located at about waist level and, in order to stick one’s head out of the chuck hole, one would have to bend at the waist or squat down so that one’s head would be waist level.

Officer Nash, who was called and testified for Respondent, testified that inmates are told not to stick their heads or arms out of the chuck hole. The heads of some prisoners wouldn’t even fit through the hole and inmates are told not to put their heads out of the hole.

Doors of the cells are opened electronically by pushing a button on a control panel. It takes 15 to 20 seconds for a door to open electronically. The opening is not a jerking motion. It is a smooth, slow, opening motion according to Nash. The food slot is in the center of the door and located in the portion of the door that moves open and closed. Mr. Nash testified that the door opens on a track at the top and bottom. The door slides along the outside of the concrete structure that constitutes the cell wall. The door would have to move approximately 12 inches before it would tend to bind anything protruding out of the slot.

Claimant testified that he sustained major muscle spasm and was taken to outside hospitals from the prison several times between August of 1989 and August of 1990 for treatment. He was admitted at Chester Memorial where he was kept on medication. At the time of the hearing, Claimant was still on medication. Claimant complained that he was having pain in his neck and his neck tended to pull over to the side as a result of his injuries.

Claimant testified originally that he had no choice but to stick his head out the chuck hole because he couldn’t contact an officer. Yet, when Mr. Von Moore was cross examining Officer Nash, his questions presupposed that Officer Nash was close enough to his cell to assist in holding the door open so that it would not do further violence to Mr. Von Moore’s neck. Claimant was attempting to portray a valid reason for sticking his head out of the chuck hole by attempting to convince the Court that it was necessaiy for him to do so in order to speak to, or get the attention of, the correctional officer. Out of his own mouth, however, he suggests that Captain Nash was close enough to his cell that within a matter of a fewr seconds Nash was restraining the door so that it would not close on Claimants neck and cause any further injury to Claimant. This anomaly raises serious questions with respect to Claimants credibility.

Inmates within their prison cells have absolutely no control over the questions of when the door to their cell is opened or closed. This is controlled, in Claimants case, by an officer in a control booth quite some distance from Claimants cell. Under these circumstances, sticking an arm or leg or ones head out of a hole in a door that can be opened electronically at any time by someone beyond the control of the inmate is foolhardy at best. The description of the location of the control booth to the wings upon which cells are located makes it obvious that a resident in one of the cells would have to be aware that the control booth operator would not have line of sight identification of a particular single cell door when opening and closing doors at the requests of correctional officers or for other valid purposes.

Claimants actions in sticking his head out of this opening in the door placed his head and neck in extreme jeopardy. His action was voluntary, although he states it was for the purpose of getting the attention of a guard so that he could call his attorney, his explanation pales in credibility when it is considered that Captain Nash was very close by at the time of this accident.

The evidence is not disputed that the inmates are instructed not to place their arms, legs or heads through the “chuck hole.” Simple observation of the chuck hole in the sliding door by an inmate would compel the conclusion that anybody using reasonable care for his own safety would not stick appendages of his body through the hole, thereby risking injury if the officer operating the control room happened to decide to push a button which would open the inmates door.

Although there is some suggestion in the evidence that the officer operating the control room buttons made a mistake in opening Claimants door, instead of another, it would seem under principles of the rules of comparative negligence, that Respondent was more than 50 percent responsible for this accident and proximately caused his own injuries.

In order for Claimant to recover, he must prove the State owed him a duty, and that duty was breached by a negligent act or omission, and that such negligence was the proximate cause of his injuries. McCoy v. State (1975), 37 Ill. Ct. Cl. 182.

Claimant has failed to meet his burden of proof as to proximate cause of his injury and, pursuant to section 2— 1116 of the Code of Civil Procedure (735 ILCS 5/1— 1116) when a Claimant is more than 50 percent at fault, he may not recover damages.

This cause is hereby denied and dismissed.


author: Mitchell, J. Mitchell, J.

text:
    (No. 88-CC-4292
    Steven Shannessy, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 12, 1997.

      Order filed December 26, 1997.

    Cooney & Conway, for Claimant.
    James E. Ryan, Attorney General (Cara LeFevour Smith, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Mitchell, J.

This cause comes before the Court on Claimant Steven Shannessy s complaint against Respondent State of Illinois seeking damages for personal injuries suffered on May 9, 1987, while operating a “trail” bicycle at Starved Rock State Park. The Claimant alleged that Respondent was negligent because it failed to properly warn of a dangerous condition or caused a path to be constructed too close to a cliff without constructing a fence or barrier. The bill of particulars, attached to the complaint, stated that medical expenses, disability and disfigurement, pain and suffering, and lost earnings totaled $1,000,000.

The hearing was conducted on August 1, 1996. Claimant presented three witnesses: Mr. Leo Trainer, an employee of Respondent; Mr. Stephen Shannessy, Claimant; and Mr. Francis Shannessy, father of Claimant. Claimant presented exhibits consisting of an itemized list of medical and health expenses incurred by, and projected for, Claimant; a trail map of Starved Rock Park; a photograph of the parking lot at Starved Rock Park; and a copy of an advertisement of a trail bike. All exhibits were admitted into the record.

Respondent presented one witness, Mr. Richard Vecchi, an employee of the Respondent. Respondent presented five exhibits consisting of photographs of a certain trail area; and a departmental report including various reports. The exhibits were admitted into the record.

Claimants Case in Chief

A. Testimony of Leo Trainer

Mr. Leo Trainer testified that he is employed by the State of Illinois and has worked at Starved Rock State Park (hereinafter the “Park”) for 23 years. He has personal recall of an accident that occurred on March 28, 1987, in the vicinity of Hennepin Canyon. He received a telephone call from the volunteer fire department indicating that they were responding to a call at the canyon. He assisted in bringing the injured individual up the trail. The injured person was Mr. Shannessy, the Claimant. He remembers seeing a bicycle. He told one of Claimants companions that this was the first bicycle accident he knew of on the trail. He told the person it was dangerous.

Mr. Trainer stated that, at some point in time after the incident, bicycles were rented from a private concession stand on Park property. He did not believe bicycles should be on any part of the trails because they were not designed for bicycles. The trails are dangerous for bicycles because they were designed for pedestrian use not for bicycle use. He identified the photographs marked as Respondents Exhibit Nos. 1-4. The photographs show the signage as it existed at the trail on May 9, 1987, the date Claimant was injured. The signs do not prohibit bicycles.

Mr. Trainer identified Claimants Exhibit No. 2, a trail map of the Park as it existed on May 9, 1987. The trail map states that there is no swimming, wading, rappelling or climbing and advises to stay on marked trails, but does not state anything about trails not being for bicycles. Claimant was injured at Illinois Canyon which is marked as “18” on Claimants Exhibit No. 2. Respondents photographs were taken near the letter “J” on tire trail map.

On cross-examination, Mr. Trainer stated that a person would have to use a stairway of 104 steps to get up onto the bluff trail near Illinois Canyon. Respondents Exhibit No. 3 is a photograph of a sign that states, “No camping, climbing or rappelling. People have been injured and killed in this area. Violators will be prosecuted to the maximum extent of the law.”

B. Testimony of Claimant Stephen Shannessy

Mr. Stephen Shannessy testified that he is 31 years of age. On the morning of May 9, 1987, he was employed as a millwright carpenter and in good health. He was earning $8 per hour and working 40 to 45 hours a week.

On May 9, 1987, he was “mountain biking,” an activity described as “off-road biking.” He was riding a Schwinn High Sierra. The bike was intended for use on rugged trails and steep slopes.

On May 9, he and companions parked at the parking lot marked “J” on the trail map. He identified Claimants Exhibit No. 3 as a photograph of the trail head.

He was at the Park once before. He had hit his head on that trip and does not remember anybody at the Park telling him the trails were dangerous for bicycles. On May 9, there was not any signage prohibiting bikes on trails. They went from parking lot J to the stairway and climbed up to the bluff. When they got to the top of the bluff, they began rappelling.

After rappelling, they climbed back up and got on the bikes and went downhill on the trail. He came to a switchback and the back wheel slipped out. He fell into the creek bed and hit his head against a tree. The trail was about two feet wide, muddy, with lots of overgrowth and very short switchbacks. The trail was a foot and a half away from the edge of the bluff. The drop from the edge of the bluff to the bottom was between 30 and 35 feet. There were not any barriers between the trail and the drop-off. There was a slope away from the trail. There were not any signs at the trail indicating that it was dangerous for bicycles.

After he had fallen, he could not feel a thing. He went into shock. He remembers being on the Loyola helicopter. He remembers being at Northwestern Hospital. They put him in a neck brace and a striker frame. Eighteen days later he had surgery and then he went to the Rehabilitation Institute of Chicago for four months of rehabilitation. After the operation he experienced extreme pain. They taught him the activities of daily living and how to use a wheelchair.

He is not able to use his legs. He has limited use of his arms and hands. The middle fingers of both hands are completely paralyzed. He has about 70 percent control over his breathing and lungs. He needs assistance with dressing, eating and cleaning. He uses a Texas catheter and lay-bag for elimination of body fluid. He requires a mini-enema for bowel evacuation. An attendant lives with him. He pays her $300 per month. Every six or eight weeks he has urinary tract infections. He takes an antibiotic twice a day at $5 per pill. The infections are getting worse. He is constantly at risk of having an autonomic reflex, where his bladder does not empty causing his blood pressure to drop and rise rapidly, leading to a possible stroke. He uses leg-backs, a shower tray, a wheelchair, and a catheter. He believes this equipment costs approximately a thousand dollars a month.

On cross-examination, Claimant stated that he did not see the sign at the front of the trail head that prohibited rappelling and warned that people have been injured and killed in that area. When riding his bike, he was aware that there was a drop-off at the side of the trail.

C. Testimony of Frank Shannessy

Mr. Frank Shannessy, the father of Claimant, testified that he and his family were called to the emergency room at the hospital when Claimant was injured. He went to the Park on May 26 and visited the site of the accident. He thought it was a dangerous site. The trail was very narrow with no barriers at the edge. Prior to becoming paralyzed as a result of the accident, Claimant was athletic.

Respondents Case in Chief

A. Testimony of Richard Vecchi

Mr. Richard Vecchi, an employee of the Park, testified that he was a ranger in 1987. The Park has never charged admission during his 26 years as an employee. He responded to a call on May 9,1987, because of Claimants accident at Illinois Canyon. The trail is an average of three feet in width and is designed for hiking.

On cross-examination, Mr. Vecchio stated that after Claimants first accident, on March 28,1987, at Hennepin Canyon, the Park put up “no biking” signs, specifically, the international sign (the bicycle with the slash through it) at Illinois Canyon. The sign is not in any of the photographs included in the departmental report, Respondent's Exhibit No. 5. The Civilian Conservation Corps built the trail in the 1930s. At the point Claimant fell, the trail is approximately four feet from the cliff. The trail is fairly level. He does not believe the trail is safe for bicycles. There are no signs prohibiting biking in the general area of the accident.

Claimants Argument

In Claimant's argument, the major premise is that the trails at the Park, which were owned and operated by Respondent, were dangerous for use by bicyclists and that, although Respondent had knowledge of this danger, it failed to warn against bicycling. In support of his argument that Respondent’s failure to warn the public of the dangerous condition of the trails was the proximate cause of his fall, Claimant cites Duncan v. State (1995), 47 Ill. Ct. Cl. 51 and Suhrbier v. State (1994), 46 Ill. Ct. Cl. 102.

Claimant argues that the case at bar is similar to the facts in Oleson v. State (1994), 46 Ill. Ct. Cl. 252. In Oleson, the State was partially liable for injuries to a Claimant because it was aware of the deteriorating condition of a roadway and scenic overlook at a State park, but did not repair the hazard or warn visitors. In Wilson v. State (1989), 41 Ill. Ct. Cl. 50, the Court stated that the magnitude of the risk, the burden of requiring the State to guard against the risk, and the consequences of placing such a burden on the State are factors in determining whether a duty exists (or harm is foreseeable). (41 Ill. Ct. Cl. at 55.) In this case the risk is substantial, the burden is minimal and the consequences are limited to posting warnings at trails at this park; therefore, the State did owe a duty to warn the public that bicycling on the trails was dangerous. Claimant does not present an argument that the test as stated in Wilson would result in a conclusion that the State should erect a fence or barriers.

Respondents Argument

The Respondent argued that the Claimant was the only person who could have prevented the accident. He took it upon himself to ride the bicycle along the top of the cliff. Respondent argued that when Claimant was at the Park on March 28, 1987, he also hurt himself. On May 9, Claimants accident occurred when he was returning along the same terrain he had traveled to get to the rappelling site. He was aware of the dangerous switchback or turn where the accident occurred.

The Respondent argues that there is no evidence of a duty.

CONCLUSION

The integral facts surrounding the accident that is the basis of this complaint are not in dispute. On May 9, 1987, Mr. Shannessy fell from his bicycle and struck his head while traveling along a trail at the Park near Illinois Canyon. He suffered serious and permanent injuries including full paralysis of his legs and partial paralysis of other portions of his body. Mr. Shannessy s life has not been, and never will be, the same because of the fall he took. Respondent has not disputed the extent of injuries or the dollar amount of damages claimed.

There are certain facts that may have some bearing on whether the Respondent had a duty to expressly warn Claimant that the trails were dangerous for bicycle use or to ensure that paths are not too close to cliffs without having a fence or barrier. The Respondents trail maps had warnings about various activities but did not specifically warn about bicycle use. There was a sign posted that prohibited certain activities, but not specifically bicycle use. The sign did state that, “people have been injured and killed in this area.” Respondents employees personally believed the trails to be dangerous for bicycle use. Prior to 1987, there is not any evidence of anyone riding a bicycle on the trails. This changed on March 28, 1987.

On March 28, 1987, Claimant was riding a bicycle on the trails at the Park and was injured. He was injured to the extent that he needed to be assisted by emergency medical personnel and did not remember details of the incident. This incident is a two-sided sword. Claimant refers to the incident to demonstrate that the Respondent knew that people were riding bicycles on the trails and that such activity was dangerous. The sword cuts the opposite direction when the fact is used against Claimant. On May 9, 1987, Claimant knew that riding a bicycle on trails at the Park was dangerous because he had actual notice of such danger. He was personally aware of accidents and injuries resulting from the activity. Claimant is not seeking damages arising from his March 28 incident. This claim is about the May 9 accident.

Mr. Vecchi testified that, after Claimants March 28 incident, the Respondent posted signs prohibiting bicycle use on the trails. This statement also appears in the visitor accident report prepared by him in relation to the May 9 accident. (See departmental report, Respondent's Exhibit No. 5, p. 5.) Claimant argues that Respondent encouraged bicycle use in the Park; however, Mr. Trainers testimony indicates that a concessionaire at the Park leased bicycles subsequent to May 9, and there is no evidence that the bicycles were intended for use, or actually used, on the trails.

In order for Claimant to recover against the State, he must prove by a preponderance of the evidence that the State owed him a duty, the duty was breached by a negligent act or omission, and that such negligence was the proximate cause of his injuries. (Ondes v. State (1991), 43 Ill. Ct. Cl. 272.) A landowner generally has a duly to use reasonable care to keep his premises safe for invitees, but that duty does not include a duty to warn invitees of obvious dangers or risks. (Ma on behalf of Ma v. State (1993), 45 Ill. Ct. Cl. 180.) In this case, the Claimant has failed to sustain his burden of proof. Claimant has not shown that the State s duty of reasonable care included a duty to warn against an obvious risk of riding a bicycle on a narrow hiking trail atop a cliff which is not intended for bicycling.

In the instant case, though the signage did not prohibit bicycling, it did state that:

“No camping, climbing or rappelling. People have been injured and killed in this area. Violators will be prosecuted to the maximum extent of the law.”

This, along with the fact that the Claimant, by his own testimony, was aware of the drop-off on said trail, indicates that the trail was obviously designed for hiking, since the Claimant was required to carry his bicycle up 104 steps in order to get to the hiking trail. The danger was obvious to his father who testified that “it was so dangerous that I was crawling on my hands and knees.”

Where a danger is obvious, a landowner does not have a duty to warn of the danger. The Illinois Supreme Court recognized limits on a defendants duty of reasonable care where the risks are obvious:

“Certainly a condition may be so blatantly obvious and in such position on the defendant’s premises that he could not reasonably be expected to anticipate that people will fail to protect themselves from any danger posed by the condition." Ward v. K-Mart Corporation (1990), 136 Ill.2d 132, 143.

There is no reason that the State should have anticipated that a bicyclist would attempt to ride on a trail about Illinois Canyon. The trail was accessible only by climbing a steep, 104-step stairway. This certainly was no invitation to Mr. Shannessy to carry his bicycle up the stairway in order to reach the trail.

The Court believes that the actions of the Claimant were the sole proximate cause of his accident and he has failed to establish by a preponderance of the evidence that the State of Illinois has caused the injuries leading to his paralysis. The risk was obvious and the Claimant chose to accept that risk. Therefore, the claim is denied.

ORDER

Mitchell, J.

This matter comes before the Court on Claimants motion for rehearing. After having reviewed the entire file and its previous order filed June 12, 1997, the Court finds that the argument of Claimant is not persuasive and denies Claimants motion for rehearing, and the order entered June 12, 1997, remains in effect.