text:
    (No. 5602
    Jud J. Reidy, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 11, 1975.

    William R. Dunn and Will Gierach, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler and Martin A. Soll, Assistant Attorneys General, for Respondent.
   Burks, J.

Claimant in this action seeks damages for personal injuries he sustained when he drove his car into an accumulation of water on a State highway, lost control of his vehicle, and struck another automobile coming from the opposite direction.

Claimant contends that his accident was caused by negligence of the Respondent in failing to prevent the accumulation of water at the site of the accident by providing adequate drainage, in failing to provide adequate warning of this dangerous condition of the highway by posting signs or barricades, and in failing to detect the existing hazzard by adequately patrolling the highway.

Coming home from his work in Aurora at about 5:30 p.m. on January 28, 1968, Claimant was driving alone in his Volkswagen in a northeasterly direction on Illinois Route 171, a mile east of Route 83, in Lemont Township of Cook County.

It was dark. The weather was drizzly and raining all that day. The highway was wet. Claimant was familiar with the stretch of road on which his accident occurred, having driven it at least 30 times, but on his way to work earlier that day he had taken the toll road instead. In the 35 minutes he had been driving on his way home, Claimant noticed puddles of water on the highway, but no large accumulations until he struck the water extending several car lengths across the highway and stated in Claimant’s brief to be four inches in depth.

Claimant said he was driving about 45 mph; that his windshield wipers were on; that traffic was medium; that he saw the headlights of an approaching car when he struck the water and lost control of his car. Claimant was on the wrong side of this two lane highway when it smashed into the oncoming automobile driven by Frank Kovalis, Respondent’s eyewitness to the accident.

Claimant was not wearing his seat belt, and he suffered a broken leg above the knee. He never got out of his car, and did not know the depth of the water. He was in shock when they brought him to the Community Memorial Hospital in La Grange where he remained for eight days. His medical bills were covered by insurance, but he suffered a substantial loss of wages, damages to his car, and a 14 inch scar on his right leg which is weather-sensitive and curtails some of his normal activities.

After a careful reading of all evidence submitted in this case, the Court is still mystified as to how the accumulation of water appeared on the highway at the time and place of the accident, in the absence of any proof of an extreme downpour of rain at that particular location. All witnesses familiar with area testified that there was no evidence of any prior flooding in that area. The evidence is also clear that the State had no prior actual notice of any accumulation of water, although the State Police patrolled the area twice a day.

The first question before us is whether the State had constructive notice of a dangerous condition on its highway and failed to take appropriate measures within a reasonable time to warn users of the highway of such dangerous condition. Gray v. State, 21 Ill.Ct.Cl. 521; Visco v. State, 21 Ill.Ct.Cl. 480; Dockry v. State, 18 Ill.Ct.Cl. 177.

The second question, of course, will be whether the Claimant was free from any negligence that contributed to his accident. Maki v. Frelk, 40 Ill.2d 193; Schuck & Maryland Casualty v. State, 25 Ill.Ct.Cl. 209.

For answers to the above questions, we will first summarize the testimony of the three witnesses called to testify on behalf of the Claimant other than the Claimant himself and his wife.

Claimant first called Howard Farthing, a State Trooper who was on duty at the time of the accident and who received a call from State Police Headquarters about 20 minutes after the accident. When he arrived at the scene there were three police cars there ahead of him, and there were two wrecked cars, Claimant’s Volkswagen and a Plymouth partially in the ditch.

Claimant was sitting in his Volkswagen when Officer Farthing arrived. The people in the other car had already been taken to the hospital. Officer Farthing, by walking in the water on the highway, determined its depth to be four inches and said it was several car lengths covering both sides of the highway.

Officer Farthing radioed headquarters and requested barricades. He then issued a traffic citation to the Claimant for "improper lane usage”. Though he said the center line was not visible under the water.

Although he was patrolling a different area that day, Officer Farthing had patrolled the accident site numerous times before; said this particular stretch of road is patrolled at least once every eight or nine hours; that no reports had come in prior to or after he came on duty at 4:00 p.m. as to any flooding condition of the road in this area. He said the road was level in the vicinity of the accident, with no low or high spots, and no curves. He was never aware of any accumulation of water on the road in this vicinity at any prior time. He said the road was in good repair and the shoulder was grassy.

Claimant then called George Zarins, an employee of the Illinois Division of Highway Communications Center whose duties were to receive and log radio transmissions. He testified that on the night of the accident he received a radio report from the State Police at 6:35 p.m. that barricades were required or requested at the scene of the accident. Zarins also disclosed that he checked the radio logs for an hour or two before the 6:35 p.m. report and determined that no earlier requests for barricades were received, but he didn’t check the records for any report beyond that.

Highway Field Engineer Raymond Kristopaitis who next testified on behalf of the Claimant stated that he too examined the State Highway Communications Log for January 29, 1968, and failed to see any actual notification prior to the time of the accident of flooded road conditions or requests for barricades.

Respondent’s witness, State Trooper Earl Enders, stated that he was very familiar with the site of this accident, since he patrolled and resided in the area for the past ten years. He confirmed that the police patrolled the area in every eight hour shift, and further stated that, based upon his ten year experience within the area, he had no knowledge of any prior flooding conditions at the scene of this accident. He concluded that the drainage in the area was good. Claimant’s witness, Ray Kristopaitis, the Field Engineer for the Division of Highways, had earlier testified that this section of the highway was in good shape, didn’t need any repairs, and that no repairs in the roadway were made following the accident.

Frank Kovalis, whose auto was struck by Claimant in the collision, testified that he drove past the accident site at least once a week and, therefore, was very familiar with the highway. He, too, stated that he never noticed any water accumulation on the road prior to the night of the accident.

We find the evidence to be overwhelming that the State had no knowledge of the flooded highway prior to the accident, and no knowledge of any prior road flooding at or near the scene of the accident.

Claimant argues that circumstantial evidence should support our finding of constructive notice, viz., in the absence of proof of a heavy rainfall, an accumulation of water four inches deep and 80 feet long could not have accumulated suddenly, but must have built up over a period of time, and that, since the State Police patrolled the area twice a day, the condition should have been discovered and reported. The logic of this argument overlooks the possibility, or even the probability, that the water accumulated within a 12 hour period since the area was last patrolled.

Claimant testified that there was a "medium” amount of traffic on this highway at the time of his accident, and the evidence shows that there had been no other accident in this vicinity. Apparently all other drivers noticed the water, reduced their speed, and kept their cars under control while passing through it. This includes the only eyewitness to the accident other than the Claimant himself. Frank Kovalis, whose car was struck by the Claimant, had no difficulty in keeping his Plymouth under control and staying in his own traffic lane. None of the other motorists who drove through the water apparently considered it sufficiently hazardous to report it to the police.

The Secretary of State’s booklet, Rules of the Road, states at page 28:

"Regardless of the limits which may be posted, the law also provides that no person shall drive at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or which endangers the safety of any person or property.”

The evidence in this case draws us inexorably to the conclusion that the probable cause of Claimant’s accident was his failure to use ordinary care for his own safety on this particular occasion.

Claimant’s headlights should have picked up a body of water 80 feet long before he entered it. The highway was straight and level for a long distance before he approached the water. There was nothing but rain to obstruct Claimant’s vision. He entered the water at a speed of 45 miles per hour, well below the speed limit, but a speed that was apparently unsafe and excessive under the conditions prevailing.

Claimant admitted that "he lost control of his car” when he hit the water. In Schuck & Maryland Casualty Co. v. State of Illinois, 25 Ill.Ct.Cl. 209, this Court denied Claimants’ recovery based upon an accident allegedly due to the failure of the State to maintain a frontage road. Noting that "it is the duty of a driver to keep his vehicle under control,” we found, as we do in the case at bar, that the Claimant "has shown no hazardous or dangerous condition of which the State had either actual or constructive notice. There have apparently been no accidents or complaints in regard to this portion of the highway . . . .”

The duty of the State to motorists using public highways is to exercise ordinary care to keep them reasonably safe for such use. Rains v. State of Illinois, 25 Ill.Ct.Cl. 330. In the instant cause we find that the State has not failed in this duty, since it had no notice, actual or constructive, of any flooding of the highway. Moreover, we find that Claimant failed to prove that he was free from contributory negligence at the time of the accident. Any finding of liability against the Respondent under these circumstances would be tantamount to declaring the State to be an insurer against all accidents which occur on its highways. That would be contrary to our rulings followed in many previous claims of this kind. Beenes v. State of Illinois, 21 Ill.Ct.Cl. 83; Hook v. State of Illinois, 22 Ill.Ct.Cl. 629; Gray v. State of Illinois, 21 Ill.Ct.Cl. 521; Link v. State of Illinois 24 Ill.Ct.Cl. 69; Vesci v. State of Illinois 24 Ill.Ct.Cl. 23.

This claim must be and is hereby denied.


source: Caselaw Access Project

author: Holderman, J.

license: Public Domain

text:
    (No. 5671
    Margaret Manos, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 8, 1976.

    Robert Lisco, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Holderman, J.

This matter comes before the Court after oral argument on the Petition for Rehearing and the Claimant’s Answer to Respondent’s Petition for Rehearing.

The Court, having heard oral arguments in said cause and having examined the Respondent’s Petition for Rehearing, together with Claimant’s Answer to said petition, does find:

That the highway where the accident occurred is one that is very heavily travelled, and from the evidence and the record, it appears to be clear that it is a very rough highway with numerous chuck holes, some of them of considerable size. It is apparent that Respondent was fully acquainted with this situation and that cold patches were used to try to eliminate chuck holes and a dangerous situation.

The testimony of the service station operator in the immediate vicinity is uncontradicted when he stated that this condition had existed for a long period of time.

This Court has repeatedly held that the State of Illinois is not an insurer against all accidents happening on its highways.

This Court has also held that it is incumbent upon the State of Illinois to warn the travelling public of dangerous conditions as they exist.

It is the opinion of this Court that the State did not warn the travelling public in this particular instance as it could have done by warning signs, rough pavement signs, or other signs that would alert the motorist of the fact that there was a dangerous condition existing.

It is incumbent upon the State to reasonably maintain the roads and highways in a safe condition and to warn the travelling public if dangerous conditions exist. This doctrine was clearly set forth in the case of Scudiero vs. State of Ill., 26 Ill.Ct.Cl. 457 where the following statements were made by the Court:

Although Claimants’ witnesses testified that they saw no warning signs, Respondent’s witnesses stated that there were rough pavement signs every two miles. This hardly seems adequate when there was no sign at the spot, which all parties stated was one of the worst. Respondent could have exercised reasonable care in maintaining the area by doing the patching job, which took 45 minutes instead of the 'patch holes’ job, which was known not to last in heavy traffic, which occurred daily. Respondent’s witness, Mr. Galus, also testified that it would have been possible to put up barricades and flashers if an area is impossible to repair. The condition in question had lasted at least three days to two weeks before the accident. Respondent, through its daily inspections, knew or should have known of the dangerous condition of the road.
Although the State is not an insurer of all who travel on its highways, it does have an obligation to keep its highways in a reasonably safe condition for motorists traveling over them. If the highways are in a dangerously defective condition, the State is negligent if it does not notify the public of such condition.

It is the opinion of this Court that the State failed in its duty to properly warn the public, and that the death of Harry Manos logically followed such neglect. The decision heretofore rendered in this matter is confirmed and the petition for rehearing is denied.


author: Burks, J.

text:
    (No. 5730
    Ruth M. Nayh, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 13, 1975.

    Stanley Werdell and Charles Dean Conner, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Burks, J.

This claim is brought by the Claimant to recover damages for an assault and battery upon her person by one Carl Kowack, a patient at the John J. Madden Zone Center, a mental institution under the jurisdiction of the State.

On June 4, 1969, the Claimant, a registered nurse for 27 years and actively so engaged, was employed by the Veterans Administration Hospital at Hines, where she had been employed for 19 years, following her service in the U. S. Army Nurse Corps. At the time of her injury she was a staff nurse at Hines, worked the night shift, and lived on the grounds.

Adjacent to the Veterans Administration Hospital is a mental institution, the John J. Madden Zone Center, separated from the Veterans Administration installation by a concrete fence approximately six feet high running around the mental institution. A person can enter the Veterans Administration grounds through a gate in the fence. The nurses’ quarters, where Claimant lived, are about two blocks away from the fence.

At about 6:30 p.m., on June 4, 1969, the Claimant left the nurses’ quarters and entered her car parked across the road. Carl Kowack, later identified as a patient escaped from the State mental institution, got into the car on the side opposite the driver’s side as Claimant was sitting in the car and demanded that she give him her keys.

When she refused to give him her keys, he brutally assaulted the Claimant, beat her severely about the face, as graphically shown in Claimant’s photo exhibits, and as related by Claimant in the record.

By stipulation, the parties agreed that Claimant’s assailant, Carl Kowack, was committed by court order to Chicago State Hospital, a State institution, on May 22, 1969. Kowack was transferred to John J. Madden Zone Center on May 28, 1969, to receive more intensive care and better therapy since the staff-to-patient ratio at the Zone Center is one-to-one, whereas, at Chicago State Hospital it is more like one staff member for 25 or 30 patients, according to Dr. Ernesto Lopez, a psychiatrist on the staff of the John J. Madden Zone Center in charge of Kowack. He was preliminarily diagnosed as suffering from an acute anxiety reaction with a schizoid personality.

Two days later, Kowack escaped from the hospital and was found wandering on the grounds of the Hines Hospital immediately adjacent to the State institution. He was placed in restraints that evening. Kowack was released from restraints on the following day on the order of Dr. Ernesto Lopez, a licensed psychiatrist, in the exercise of his medical judgment. Dr. Lopez explained that the patient appeared calm, and that a patient cannot be restrained indefinitely "since a patient suffering from acute anxiety reaction would view restraints as a possible form of punishment.”

Four days later Kowack escaped through a window at approximately 6:15 p.m. and attacked the Claimant.

He was returned to the Madden Zone Center by guards from Hines Veterans Hospital and was thereupon placed in restraints. He was kept in these restraints the following two days.

Kowack had not previously been hospitalized in a State institution, and there was no evidence in the record as to any previous acts of violence. However, his court commitment as "a person in need of mental treatment” contemplates the following definition of that term as used in the Mental Health Code, Ill.Rev.Stat., Ch. 95½ §1-11:

... a person who "reasonably expected at the time the determination is being made or within a reasonable time thereafter to intentionally or unintentionally physically injure himself or other persons....”

After further conversations with Dr. Lopez, Respondent stipulated that Carl Kowack, suffering from acute anxiety reaction with schizoid personality, recognized that he was unable to control his impulses, and that he might be dangerous.

In Eichen v. State, Ill.Ct.Cl. 5589, August 8, 1975, we held that absolute liability, in the absence of negligence, is not imposed on the State by statute known as:

AN ACT concerning damages caused by escaped inmates of charitable, penal, reformatory or other institutions over which the State has control. Ill.Rev.Stat., Ch. 23, § 4041.

The record before us is amply sufficient to support a finding that the State was negligent in failing to prevent the second escape of Carl Kowack from the John J. Madden Zone Center. The negligence of the State in failing to guard the walls and gate adequately and to otherwise supervise the movements of Carl Kowack within the grounds of the Madden Zone Center is particularly glaring if we consider Dr. Lopez’s testimony that the "staff to patient ratio at the Zone Center is one-to-one.”

Respondent concedes that Claimant’s assailant had escaped four days before he attacked the Claimant, and that the attending physician knew he "might be dangerous.” It is not essential that the precise consequences which actually resulted therefrom should have been foreseen. I. L. P. Negligence § 105. As we said in Paulus v. State, 24 Ill.Ct.Cl. 215, 216, "We believe that, under the circumstances, the State was negligent in not providing better security for á potential risk.”

There is no evidence of any contributory negligence on the part of the Claimant. As we said in Callback v. State, 22 Ill.Ct.Cl. 722, 733:

Claimant had no reason to believe that she would be attacked by a wandering insane man in the early hours of the morning or at any hour. She had no reason to believe that such a man would be allowed to roam the grounds unattended and alone. She was not, in our judgment, guilty of contributory negligence. The facts establish that she was exercising due care and caution for her own safety, and did nothing to incur the injury or incite the assault.

Since Claimant was an employee of the Veterans Administration Hospital, she incurred no financial loss for her hospital and medical expenses. However, she sustained some noticeable permanent injuries to her face. Examining Claimant’s eight color photo exhibits showing the condition of Claimant’s face after the beating, it is remarkable that the permanency of her injuries was not more severe.

Dr. Robert Dirmish, who treated Claimant the night she was assaulted and examined her again on the day of the hearing, testified that, as a result of the beating, she sustained minimal permanent changes in the soft tissue adjacent to her right jaw, causing the right side of her face to be less full than the left, and causing thereby a small but noticeable facial asymmetry.

The Claimant, Ruth M. Nayh, is hereby awarded damages for her personal injuries in the sum of Five Thousand Dollars ($5,000.00).


author: Perlin, C. J.

text:
    (No. 5748
    James Bilodeau, Et Al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 30, 1976.

    Craig A. Ridings, Attorney for Claimant.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Perlin, C. J.

This is an action for wrongful death and personal injuries in which Claimants allege that the State was negligent in maintaining a stop sign at the northwest corner of the intersection of U.S. Alternate 30 and Meridith Road in Kane County, Illinois. Claimants contend that the negligence of the State was the proximate cause of an automobile collision at the intersection in which James Bilodeau, Michael Bilodeau and Gerald Bilodeau were injured, and Natilie Bilodeau sustained injuries which resulted in her death.

U.S. Alternate 30 runs in an easterly and westerly direction. Meridith Road runs in a northerly and southerly direction. The speed limits on both roads in the vicinity of their intersection were 65 miles per hour. Alternate 30 was the preferred road, and its intersection with Meridith Road was protected by stop signs which halted north and southbound traffic on Meridith Road. Approximately 838 feet north of Alternate 30 on Meridith Road there was a warning sign indicating a stop sign ahead. The warning sign did not indicate the distance to the stop sign.

At approximately 10:30 a.m. on January 28, 1968, Illinois State Trooper Ray D. Winstead was driving southbound on Meridith Road. As he approached the intersection with Meridith Road he noted the warning sign indicating a stop sign ahead. When he reached the intersection he noted that the stop sign on the northwest corner, which halted southbound traffic on Meridith Road, was lying on the ground. Winstead testified that although he was looking for the sign he drove almost into the intersection before he saw it lying at the side of the road.

Winstead immediately radioed a report of the downed sign to his headquarters. The Illinois State Police radio log sheet for January 28, 1968 reflects that this call was received at 10:40 a.m. Winstead then attempted to reset the sign but was unable to do so. After a few minutes he left the sign in the same position as he had found it and left the intersection unattended to resume his patrol.

Approximately two hours later, Claimants were proceeding south on Meridith Road. Natilie Bilodeau, then 22 years of age, was driving. Her husband James, their three year old son Michael, and her brother-in-law, Gerald Bilodeau, were passengers in the car. They were driving to Aurora to visit James Bilodeau’s sister and were unfamiliar with the area as they had never before made the trip.

Richard A. Moecher and Jean Ann Moecher were the sole eyewitnesses to the accident. Called as Claimants’ witnesses, they said that the Bilodeau car proceeded through the intersection without stopping. At the same time a car which was northbound on Meridith Road ignored the stop sign for northbound traffic and, without slowing, entered the intersection and turned west onto Alternate 30 directly in front of the Bilodeau car. The northbound car, driven by one Hugh Spears and carrying five passengers, collided head on with the Bilodeau car at approximately the middle of the intersection.

Trooper Winstead arrived at the accident site shortly after the collision. He said that the downed stop sign on the northeast corner of the intersection was in the same position as he had left it about two hours earlier.

In order to recover for the wrongful death of Natilie Bilodeau, and for the injuries to the other occupants of the Bilodeau car, Claimants bear the burden of proving by a preponderance of the evidence that Respondent was negligent in maintaining the intersection of Alternate 30 and Meridith Road; that the negligence of Respondent was the proximate cause of their damages; and that they were themselves free of contributory negligence.

The issue of whether the State was negligent in maintaining the intersection was decided by this Court in Merchants National Bank of Aurora, et al. v. State, No. 5600 filed January 9, 1973, amended opinion filed October 26, 1973. There this Court held that the conduct of Trooper Winstead, in leaving the intersection unattended after he had actual notice of the downed stop sign, constituted negligence.

As we said in our amended opinion in Merchants National Bank,

In a nutshell, the Respondent, after receiving actual knowledge of said dangerous condition, literally walked away from the dangerous condition and thus allowed the hazardous condition to remain, which eventually caused the death of claimants’ decedents.

Our earlier holding in Merchants National Bank, supra, that Respondent was negligent in not taking some action to protect the intersection once it had actual knowledge of the downed stop sign, is determinative of that issue in this action.

We next turn to the issue of proximate cause. Respondent argues that the negligence of Hugh Spears who ran a standing stop sign and drove into the path of Claimants’ car was the proximate cause of the accident. Respondent contends that it could not have reasonably foreseen Spears’ negligence.

It is clear that there may be more than one proximate cause of an occurrence. The act of one party may create a dangerous condition which may permit an accident to occur given the negligence of another party. If the negligence of the second party could have reasonably been foreseen by the party who created the dangerous condition, then that party may be held legally responsible for the resultant damages. As stated in Johnson v. City of East Moline, 338 Ill.App. 220, affirmed 405 Ill. 460:

What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act. (citing cases) The intervention of independent concurrent or intervening forces will not break the causal connection if the intervention of such forces was itself probable or foreseeable.

The question thus becomes whether Respondent could have reasonably foreseen that an accident would occur in the absence of a stop sign. Again, our earlier decision in Merchants National Bank, supra, is dispositive. We there held that it was reasonably forseeable that an accident would occur at the intersection in the absence of the stop sign, and we, therefore, hold that the negligence of Respondent was a proximate cause of this accident.

The final issue is whether Claimants have established freedom from contributory negligence. James Bilodeau, Michael Bilodeau and Gerald Bilodeau were passengers in the car, and the record establishes that they were in the exercise of due care for their own safety. Further, even if we were to find that Natilie Bilodeau, the driver of the car in which they were riding was negligent, her negligence would not be imputable to her passengers. Summers v. Summers, 40 Ill.2d 338; Tyler v. State, 26 Ill.Ct.Cl. 231.

Respondent argues, however, that an award to the Administrator of the Estate of Natilie Bilodeau is barred because Natilie Bilodeau was not free of contributory negligence. It appears from the record that Natilie Bilodeau was unfamiliar with the intersection of Alternate 30 and Meridith Road and thus could not have been anticipating a stop sign at that location. Although she passed a sign approximately 800 feet north of the intersection indicating a stop sign ahead, that sign did not state the distance to the stop sign. Further, eyewitness testimony established that the Spears car turned directly in front of her vehicle after her car was already in the intersection. Under all the circumstances, we find that she was exercising reasonable caution for her own safety at the time of this occurrence.

James Bilodeau suffered a broken right shoulder, a compound fracture of his right arm, a fractured pelvis, several fractured ribs, and numerous cuts and bruises as a result of the accident. He was hospitalized for four weeks and wore a cast for about eight weeks thereafter. His out of pocket expenses were $8219.18, including $4777.74 in lost wages and $2418.09 in hospital bills. He has already received the sum of $19,963.95 from the Estate of Hugh Spears, which is required by Section 26 of the Court of Claims Act to be set off from his recovery in this forum.

Gerald Bilodeau suffered a broken left arm, three fractured ribs, a cerebral concussion, burns on his right leg, and numerous cuts and bruises. He has suffered permanent, but not disfiguring, scarring. His out of pocket expenses were $2127.62, including $1066.62 in hospital bills and $656.00 in lost wages. He has received the sum of $4444.87 from the Estate of Hugh Spears.

Michael Bilodeau was three years old at the time of this accident. He has a permanent disfiguring scar across his entire forehead which may be helped by plastic surgery. He has received the sum of $6925.68 from the Estate of Hugh Spears.

Natilie Bilodeau was 22 years old at the time of her death. She was married to James Bilodeau and was the mother of Michael Bilodeau. She was employed at the time of her death earning $1.85 per hour. Her death represents a loss to her husband and son in excess of the maximum award which this Court may make. Her estate was paid the sum of $8,665.50 from the Estate of Hugh Spears.

After setting off the amounts received by Claimants from the Estate of Hugh Spears, as required by Section 26 of the Court of Claims Act, we hereby make the following awards:

To James Bilodeau, the sum of $5,036.05.
To Gerald Bilodeau, the sum of $15,555.13.

To James Bilodeau, as Guardian of the Estate and Person of Michael Bilodeau, a minor, the sum of $3,074.32.

To James Bilodeau, Administrator of the Estate of Natilie Bilodeau, Deceased, the sum of $16,334.50.

      . All of the occupants of the Spears car were killed. In Merchants National Bank of Aurora, et al. v. State, No. 5600, filed January 9, 1973, amended opinion filed October 26, 1973, a companion case to the instant action, the administrators of the estates of the passengers of the Spears car brought suit against the State for the wrongful deaths of those individuals. Neither Mr. nor Mrs. Moecher, the sole eyewitnesses to the collision, were called to testify in that action. The case was tried on the theory that the Spears car was eastbound on Alternate 30 when it struck the Bilodeau car, apparently on the basis of the locations of the Spears and Bilodeau cars when they came to rest after the collision.


text:
    (No. 5759
    Willett Elmore, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 29, 1976.

    C. Robert Yellin , Attorney for Claimant.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Perlin, C. J.

This is an action to recover for personal injury and property damage sustained by Claimant in a head-on automobile collision on January 2, 1969. The accident occurred on County Line Road in Highland Park, Illinois, a two lane, undivided roadway. The parties have agreed that the road was under the jurisdiction and control of Respondent at the time of the accident.

Claimant asserts that her injuries were proximately caused by the failure of Respondent to properly maintain the road. Specifically, she alleges that her automobile struck a large hole in the road, which caused it to skid into the lane of oncoming traffic. Respondent contends that the road was properly maintained, and that Claimant’s own negligence was the proximate cause of her injuries.

At about 7:55 a.m. on January 2, 1969, Claimant was driving in an easterly direction on County Line Road with two passengers in her car. Traffic was light, and visibility was good. Claimant was very familiar with the road, having driven it daily for several years prior to the accident.

There had been a heavy snowfall for several days prior to January 2, 1969. Two days before the accident State employees had plowed County Line Road. The plowing resulted in snow being pushed to the sides and shoulders of the road, making the shoulders impassable to traffic. There was a snowfall after the road was plowed, and automobile traffic wore ruts in the accumulated ice and snow in both the eastbound and westbound lanes.

Claimant testified that County Line Road was slippery on the day of the accident, and that she was travelling about 10 miles per hour because of the road conditions. She said that at about the 500 block of County Line Road her car struck a large deep hole which caused it to slide into the lane of oncoming westbound traffic and collide with an automobile driven by one James Levy.

Claimant said that she saw the Levy car when she was about two blocks west of the accident site. She said that she did not apply her brakes between the time she first observed the car and the collision because, "we were going so slow.”

Claimant described the hole she said she struck as being four feet wide, three feet long, and about six inches deep. She said that it was located in the approximate center of the street. Claimant further testified that she "knew [the hole] was there all the time,” as she had seen it on many previous occasions. She said she had first seen it about two months before the accident, and that it had been her practice to drive around the hole. She said she was unable to do so on the day of the accident because the shoulders of the road were impassable because of the accumulation of snow.

Claimant was hospitalized for six days as a result of the accident. She suffered a broken nose and a whiplash injury, and claims a loss of earnings as well as property damage to her car.

Sargent John Dunn, a Highland Park police officer, arrived at the scene of the accident shortly after the occurrence. He described County Line Road as being in "very bad” condition with deep ruts in the hard packed snow which covered the street. He also said that the road was narrowed to 18 to 20 feet because snow had been plowed to the sides and shoulders.

Dunn frequently drove past the accident site during the course of his duties. He acknowledged having received complaints from Highland Park residents about the condition of the road but had no personal knowledge as to whether the complaints were transmitted to the State of Illinois. Asked whether there were any holes in the road at the accident site other than the ruts in the packed snow, Dunn said, "I believe there were some because I believe there was some construction going on at the time of the accident.” However, Dunn was unable to recall whether the construction began before or after the accident and did not recall observing any construction warning signs at the accident site.

James Levy, the driver of the vehicle that collided with Claimant’s car, was the sole witness to testify on behalf of Respondent. Levy was a Highland Park resident who drove past the accident site daily on his way to and from work. He said that County Line Road was a little icy and rutty on the day of the accident, and that it was somewhat narrower than usual because plowed snow had been pushed to the sides of the road.

Levy first saw Claimant’s car when it was about one-half block from his car. He estimated that Claimant was traveling 10 to 15 miles per hour. Levy said he was travelling about 5 miles per hour as he approached Claimant’s vehicle, and that he would not have been in control of his car had he been driving any faster. Levy said that Claimant’s car began sliding into his lane when it was one to two car lengths from his car.

Levy did not recall seeing any chuck holes or pot holes in County Line Road at the accident site.

In Emm v. State, 25 Ill.Ct.Cl. 213(1965), this Court held that the State must keep roads under its jurisdiction and control in reasonably safe condition. In order for Claimant to prevail in this action she must prove by a preponderance of the evidence that the State breached this duty; that she was free of contributory negligence; and that the negligence of Respondent proximately caused her injuries.

We must first determine whether Claimant has proven Respondent’s negligent failure to maintain County Line Road. Claimant testified to the existence of a large hole in the street which she alleges caused her car to slide into the path of the Levy vehicle. However, both James Levy and Officer Dunn, unbiased witnesses with no interest in this cause, testified that they did not recall seeing a hole in the pavement at the accident site. Both had ample opportunity to examine the road since both travelled it daily, and James Levy was particularly certain that he did not observe a defect in the pavement.

We think it highly improbable that both Levy and Dunn would overlook a hole as large as that which Claimant testified existed in County Line Road. Given the fact that all witnesses agree that County Line Road was studded with ruts worn by traffic in packed snow and ice, we think it most probable that Claimant’s car struck a large rut created by the wear of traffic on the snow packed road.

It is well established that the State is not liable for injuries resulting from the natural accumulation of snow on a road or for injury caused by traffic wearing on the snow causing ruts and ridges on the road surface. Strapelli v. City of Chicago, 371 Ill. 72; Casper v. City of Chicago, 320 Ill. App. 269, 271.

We, therefore, hold that Claimant has not established a breach of duty on the part of Respondent.

Furthermore, we think the record establishes that Claimant was not in the exercise of due care for her own safety at the time of the accident. Claimant testified that she was driving 10 miles per hour when she saw the Levy car but did not slow down until the collision. Yet Claimant knew that the road was slippery, that the shoulders of the road were impassable and, most significantly, that there was a large rut at the accident site. This is very clear from Claimant’s own testimony:

Q. Did you at any time that morning see this rut before the collision?
A. Yes, because I know (sic) it was there all the time.
Q. Approximately how far from the rut were you when you became aware of it that morning?
A. Well, I couldn’t say where I was because I knew the rut was there.
Q. You had driven over this hole before, had you not?
A. Right.
Q. What happened on previous occasions when you drove over it?
A. Well, sometimes I would go around it. Either there wouldn’t be as much snow, and you would get over on the shoulder.
Q. Had you ever actually driven into it prior to January 2, 1969?
A. No.
Q. You were aware of the rut that was there before you hit it?
A. Yes.

We think that these facts conclusively show that Claimant did not exercise reasonable caution. She was fully aware of the existence of the alleged rut and saw the oncoming Levy car, yet drove directly into the rut without even attempting to slow her car. Reasonable prudence would have dictated that she at least reduce her speed as she knew that she could not drive around the rut because of the accumulation of snow on the shoulder of the road. Her failure to take this elemental precaution, knowing the condition of the road, certainly was at least a contributing cause of the accident.

In Vanda v. State, 25 Ill.Ct.Cl. 213, 218, this Court said, "A party has no right to knowingly expose himself to danger, and then to recover damages for an injury which he might have avoided by the exercise of reasonable and ordinary care.” We think that language accurately describes Claimant’s position, and this claim is accordingly denied.

      . It should be noted that even if we were to find that Claimant had proven the existence of a hole in the pavement, Claimant has presented no evidence to show that Respondent had either actual or constructive notice of the defect. In the absence of such proof, the State would not be liable for injuries caused by the defect. See, Visco v. State, 21 Ill.Ct.Cl. 480; Pyle v. State, Ill.Ct.Cl., No. 5343.


text:
    (No. 5830
    Lewis and Enola M. Dingledine, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 16, 1976.

    L. H. Flesner, Attorney for Claimants.
    William J. Scott, Attorney General; William E. Webber and Owen D. Lierman, Assistant Attorneys General, for Respondent.
   Holderman, J.

Claimants, Lewis Dingledine and Enola M. Dingledine, his wife, seek recovery from the State for damages allegedly suffered as a result of actions of a ward of the State who had been placed in their charge.

The Claimants entered into an agreement with the State of Illinois, Department of Children and Family Services and, as a result of the agreement, accepted one Paul Reeves, a 14 year old boy, who entered their home on March 17, 1969. He remained there until July 30, 1969.

It is the contention of the Claimants that shortly after the placement of the foster child in their home, he became destructive and they requested the State to remove him. There is considerable conflict as to whether the Claimants clearly demanded that Paul Reeves be removed from their home prior to July, 1969, but it is undisputed that they complained about him to the Department as early as May 14, 1969. The later part of May, 1969, they submitted a tentative list of the damage he had done.

Mrs. Mahoney, the case worker in charge of this particular individual, testified that she did not hear from the Dingledines until May or June to the effect that they were having trouble with the child and that July 14, 1969, was the first date on which she received a request to remove him.

Before Claimants can recover, they must prove that the State was negligent in its duty toward the Claimants, and that Claimants were free from contributory negligence.

On the question of contributory negligence, it does appear that after July 1,. 1969, there was no record of any damage done by the foster child. In response to a question as to why no damage was done between July 1 and the time he was removed, Mrs. Dingledine responded, "We were just keeping doggone tight watch on him,” which would indicate that when they did keep a tight watch on this individual, he did not commit any damage.

The record shows that the Claimants have a history of keeping foster children in their home, so they are undoubtedly familiar with the problems that can arise. On the whole, however, I do not believe that Claimants were guilty of contributory negligence.

This appears to be the first time that a claim of this nature has been presented to the Court of Claims. This claim is based upon a tort action arising out of a foster home placement agreement. It would seem that the State of Illinois, which now permits itself to be sued for tort, can be held liable for negligence in the performance of a contract and that, therefore, Claimants’ complaint sets forth a recognizable cause of action. Therefore, it appears that the law is not in dispute in this matter, but rather a question of fact.

The record is devoid of any facts showing that the foster child had been a destructive child nor is there any evidence that indicates that the State could or should have anticipated that he was a destructive child. That being the case, the State did not act negligently in placing him in the Dingledine home. To hold otherwise, in the absence of proof of notice, would be treating the issue as one of res ipsa loquitur.

It is the State’s contention that there was not a "real” request to remove this child until July 14, 1969. He was removed a few days later, but during this period of time, according to the record, there was no further damage done.

It is probably true that the State could have acted more promptly in removing this child, but the State contends that it had difficulty in placing these children, and it does take time to find a new home for them.

There does not seem to be any previous Court of Claims opinions that have a bearing on this case. The authorities cited by Claimants and Respondent are directed to the underlying legal issue of duty as related to tort cases arising out of contracts.

There can be no recovery in tort unless a duty and breach of that duty is alleged and proven.

A. Duty. I. L. P. Negligence, Section 22, states as follows:

In order that there may be negligence or actionable negligence there must be a legal duty to exercise care in favor of the person injured or to protect such person from injury, and a breach, or failure to perform, such duty. Where there is no duty or breach thereof there can be no negligence.
It is not sufficient that there has been a breach of some duty or obligation unless such duty or obligation was one owing to the person injured. Where the duty of care and caution has no existence toward a particular person there may be no such thing as 'negligence’ in the legal sense of the term.
Contractual Duty. One who has been • guilty of negligence in the performance of a contract may be liable for the resulting damages sustained by the person with whom he contracted. Where the only relationship between the parties is contractual, the liability of one to the other for negligence must arise out of some positive duty which the law imposes because of the relationship or because of the negligent manner in which some act which the contract provides for is done, and the mere breach of an executory contract, where there is no general duty, is not the basis for a charge of negligence.
In order that liability based on the negligent performance of a contract may attach, some privity or relationship should exist between the person injured and the one sought to be charged, by reason of which the person sought to be charged owes some legal duty to the one suffering the injury.

74 Am.Jur.2d Tort, Section 23, sets out the law as follows:

A tort is a wrong to another in his rights created by law or existing in consequence of a relation established by contract, but it cannot be based upon the contract itself. In other words, a mere breach of contract cannot be converted into a tort. Indeed, a tort is sometimes defined as a wrong independent of contract, or as a breach of a duty which the law, as distinguished from a mere contract, has imposed. Although such duty may have been imposed because of a contract or because of it and something else combining, when otherwise it would not have created the duty, yet breach of contract may only be treated as a tort where the law casts its separate obligation. To recover upon that theory, the plaintiff must show not merely that the defendant assumed an obligation under contract, but that out of that obligation there arose a duty to the plaintiff.
Basically, it can be said that if the cause of complaint is an act of omission or nonfeasance which, without proof of a contract to do what has been left undone, will not give rise to any cause of action, then the action is founded upon contract and not upon tort. To found an action in tort, there must be a breach of duty apart from the nonperformance of a contract. To determine whether an action is ex contractu or ex delicto, it is necessary to ascertain the source of the duty claimed to have been violated; if this duty is one imposed merely by the contract, then action for the breach thereof is necessarily ex contractu. But if a party sues for breach of duty prescribed by law as an incident of the relation or status which the parties have created by their agreement, the action may be one in tort, even though the breach of duty may also be a violation of the terms of the contract. And a legal duty the violation of which is a tort may spring from extraneous circumstances not constituting elements of the contract as such, although connected with and dependent on it.
Where a contractual relationship exists between persons and at the same time a duty is imposed by or arises out of the circumstances surrounding or attending the transaction, the breach of the duty is a tort. In such a case, the tortious act, and not a breach of the contract, is the gravamen of the action; the contract is the mere inducement creating the state of things which furnished the occasion for the tort.

It is the opinion of this Court that the Claimants have failed to prove any negligence on the part of the State and an award is hereby denied.


text:
    (No. 5910
    Robert Skinner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 16, 1975.

    Miller, Hickey & Close, by Harold L. Turner, Attorneys for Claimant.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant Robert Skinner has brought this action to recover for personal injuries and property damage incurred when the car in which he was riding collided with a car being driven by one Gaila Riddle at the intersection of Blackhawk Road and 20th Street in Rockford, Illinois, on October 5, 1969. The gravamen of Skinner’s claim is that Respondent negligently failed to properly maintain a stop sign at the intersection.

On October 5, 1969, at approximately 5:00 p.m., Claimant was driving in a westerly direction on Black-hawk Road, an east-west street, near its intersection with 20th Street, a north-south avenue. Gaila Riddle was traveling southbound on 20th Street. The day was clear and the roads were dry. The speed limit on both Blackhawk Road and 20th Street was 65 miles per hour.

The intersection of Blackhawk Road and 20th Street is controlled by stop signs on the southeast and northwest corners of the intersection which stop traffic north and southbound on 20th Street. At the time and date in question the stop sign on the northwest corner, which halted southbound traffic on 20th Street, was not standing. The sign had been uprooted, and was lying on the shoulder of the road.

Gaila Riddle did not stop her car at the intersection and collided with the car being driven by Claimant.

This Court has often held that the State is not an insurer of the safety of all who travel its roads and is required only to exercise reasonable diligence in maintaining roads under its jurisdiction. See Weygandt v. State, 22 Ill.Ct.Cl. 498. Claimant therefore bears the burden of proving by a preponderance of the evidence that Respondent was negligent in maintaining the intersection; that Respondent’s negligence proximately caused his injuries; and that he was free of contributory negligence.

It is the Claimant’s position that Respondent had both actual and constructive notice that the stop sign was uprooted. Respondent counters that it had neither actual nor constructive notice of the condition of the stop sign. Respondent further asserts that Claimant has failed to prove his freedom from contributory negligence; that it was the negligence of the drivers involved which proximately caused the accident; that Claimant’s damages are speculative and uncertain; and that Claimant has failed to allege and prove facts necessary to invoke the jurisdiction of the Court of Claims.

Deputy Sheriffs Steve Holcomb and Ronald E. Betts who arrived at the accident scene shortly after the collision both testified that sometime prior to the accident they had observed the stop sign uprooted. Holcomb said that he and Betts had passed the intersection four or five days prior to the accident, and that he noticed that the stop sign was leaning over. He said he was certain that the sign was not completely uprooted at this time. Betts said that they passed the intersection sometime within seven days prior to the accident, and that the stop sign was completely down on this occasion. Betts confirmed that he and Holcomb reported the condition of the sign to the office of the Sheriff of Winnebago County. Betts further testified that it was the procedure in the Sheriff’s office to relay such reports to the agency in charge of the particular road.

Mr. and Mrs. Paul Phillips resided on the northwest corner of Blackhawk Road and 20th Street. They had been on vacation for two weeks prior to the accident and returned to their home in the early morning hours of October 5. Neither could recall whether the sign was standing when they returned home, but at about 11:00 a.m. on October 5, they did notice that the sign was down. They did not report the condition of the sign to authorities.

Mr. Phillips testified that the sign had been uprooted "several times” from April, 1968, to the date of the accident.

Elizabeth Dye also resided near the intersection of Blackhawk Road and 20th Street. She testified that she had observed the downed stop sign earlier in the week, and that in the eight years that she lived in the area the sign had been uprooted a number of times.

Richard Sink, a foreman in the Maintenance Department of the State of Illinois Division of Highways, was called to the accident site to erect a temporary sign after the collision. He inspected the uprooted sign, and testified that the post was intact. He said the lower three feet of the post was covered by a thin layer of dirt which appeared to be moist. He said that to his recollection the weather had been warm and sunny for several days prior to the accident, and that in his opinion the pole had probably not been down longer than 24 hours.

Arley Webster also lived near the intersection in question and was employed at the offices of the General Telephone Company which were located approximately 1000 feet from the downed stop sign. Webster testified that at approximately 4:00 p.m. on Friday, October 3, 1969, he was working outside the General Telephone offices when he noticed that a woman’s car had stalled on 20th Street. He testified that he helped the woman push her car onto the shoulder of the road near the stop sign on the northwest corner of the intersection. Webster said that he specifically recalled that the stop sign was standing at this time, as he had difficulty in maneuvering the woman’s car around the sign.

Reconciling all the foregoing testimony as to when the stop sign was standing and when it was down, the Court concludes that while the stop sign had indeed been uprooted from five to seven days prior to October 5, 1969, and that Respondent presumptively had actual notice of this fact, the stop sign had been re-erected sometime prior to 4:00 p.m. on October 3, 1969. This is the most plausible explanation for the testimony of Deputy Sheriffs Betts and Holcomb that the stop sign was down earlier in the week, and the uncontradicted testimony of Arley Webster that the stop sign was standing at 4:00 p.m. on October 3, 1969. Our conclusion is buttressed by the fact that moist dirt covered the lower three feet of the post although the weather had been warm and sunny for several days prior to the accident indicating that the bottom of the post had not been exposed for any great period of time.

It therefore appears that the sign was uprooted sometime between 4:00 p.m. on October 3, 1969, and 11:00 a.m. on October 5, 1969, when Mr. Paul Phillips noticed that the sign was down. The issue thus framed is whether, in these circumstances, the State may be charged with constructive notice of the condition of the sign on October 5, 1969.

Respondent may be charged with constructive notice of a dangerous condition when, from all the circumstances of a case, it is determined that Respondent should have been aware of the existence of the condition in the exercise of reasonable care and diligence. Joyner v. State, 22 Ill.Ct.Cl. 213, 217. That is, the dangerous condition must have existed for such an appreciable length of time that the Respondent can be charged with negligence in not ascertaining and correcting the condition.

In Hilden v. State, Ill.Ct.Cl. No. 5652, filed May 11, 1971, we held that a two day long malfunction in a traffic signal was not a sufficiently lengthy period to put the State on notice of the defect. The evidence here shows that this stop sign had been down for a period of less than two days at the time of accident and under our holding in Hilden, we must conclude that Respondent cannot be charged with constructive notice of this fact.

Claimant urges, however, that the State had notice that the sign was subject to being periodically uprooted and should have instituted a program of regular inspections of the intersection. While the record indicates that this particular stop sign had been uprooted previously, we are still unable to charge the State with constructive notice of its condition on October 5, 1969. The record shows that the stop sign had been repaired sometime between October 1 and October 3,1969, and was upright and in good condition at 4:00 p.m. on October 3. To charge the State with constructive notice of the condition of the sign on the morning of October 5, under these circumstances, would be tantamount to making the State an insurer of the condition of all traffic signals under its jurisdiction and control.

Finally, Claimant contends that Respondent was negligent in not anchoring the stop sign by extraordinary means after it had been uprooted on prior occasions. Claimant points to the testimony of Mr. and Mrs. Phillips that the sign was down three times between April, 1968, and October, 1969, and the statement of Elizabeth Dye that the sign was down "many times” during an eight year period. Claimant further points out that after the accident on October 5, 1969, the stop sign was anchored with a post twice as large as the old post, and the sign had not been uprooted from the date of the accident to the date of the hearing herein.

Donald R. Love, Supervisor of State Highway Maintenance in Winnebago County, testified for Respondent that the stop sign in question was placed on a pole which measured four inches by four inches on each side. The sign weighed 50 to 60 pounds, and was the standard stop sign as used throughout the country. While the intersection had been troublesome, Respondent did not act unreasonably in utilizing a standard stop sign.

Claimant has failed to establish that Respondent had actual notice of the condition of the downed stop sign on October 5, 1969, and considering all the facts of this case, we find that the stop sign had not been down for a sufficient period to charge Respondent with constructive notice of the condition. Claimant has further failed to establish that Respondent was negligent in utilizing a sign of standard construction at the intersection in question.

Claimant’s claim is accordingly denied.

      More recently, and directly in point, is Pyle v. State, Ill.Ct.Cl. No. 5343, filed November 10, 1973, wherein this Court made a thorough analysis of leading authorities on the question of notice in tort claims based on downed stop signs.


text:
    (No. 5949
    Dudley Porter, Administrator of the Estate of Benjamin R. Porter, Deceased, and Dudley Porter, Individually, Claimants, vs. State of Illinois, Respondent.

      Order filed July 24, 1975.

   Burks, J.

This matter is now before us on Respondent’s motion filed May 5, 1975 for dismissal of this action on the grounds that this Court does not have jurisdiction of the subject matter of this claim. The Claimant having filed no objection to said motion, and the Court being fully advised in the premises, finds as follows:

The alleged wrongful death of Claimant’s decedent was allegedly caused by the driver of a military vehicle who we find was not an agent of the State of Illinois at the time of the fatal accident. The departmental report in the record pursuant to our Rule 14, states in ¶1:

At the time of the accident, the driver of the military vehicle, Sergeant James R. Hough, [ XXX-XX-XXXX ], was a member of Company B, 682d Engineer Battalion, Illinois Army National Guard. He was on an authorized mission and performing Federally funded annual training required by §503, Title 32, U.S. Code. Claim for property damage and death arising from this accident would therefore be cognizable under §715, Title 32, U.S. Code [commonly referred to as the National Guard Claims Act].

This Court has previously commented at length on the employment status of the members of the Illinois National Guard when they are on a federal mission and not engaged in the performance of a State function or in State service.

In a case almost identical to the claim before us, we held that the alleged tortfeasor, an Illinois National Guardsman on a federal mission, was not an agent of the State at the time of the fatal accident, and that the claim based upon the guardsman’s negligence was not within the jurisdiction of this Court, McRaven, Adm. v. State, Ill.Ct.Cl. No. 5586 filed July 14, 1972.

Respondent’s motion to dismiss this claim is hereby granted.


text:
    (No. 6005 & 6175
    David Brockman, individually, Twyla Brockman and Brent Brockman, Minors, by David Brockman, their father and next friend, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 11, 1975.

    Pefferle, Maddox & Gramlich, by Joseph W. Maddox, Attorneys for Claimant.
    William J. Scott, Attorney General; Douglas Olson, Assistant Attorney General, for Respondent.
   Perlin, C. J.

These consolidated cases arise out of an automobile accident that occurred on November 15, 1968, which resulted in the death of Evie Brockman and injuries to her son, David Brockman, and his children, Twyla and Brent Brockman.

In cause number 6005, David Brockman is suing in both his individual capacity and as father and next friend of Twyla and Brent Brockman and seeks $25,000 in damages for personal injuries and property damage sustained by them. Cause number 6175 is a wrongful death action in which David Brockman, as administrator of the estate of Evie Brockman, seeks $1,500 for burial expenses incurred for Evie Brockman.

On November 15, 1968, David Brockman was driving a 1965 Chevrolet sport van truck in a southwesterly direction on the U.S. Route 66 by-pass in Springfield, Illinois. The accident occurred at about 9:30 p.m. at approximately 100 feet northeast of a C & IM Railroad overpass that intersected the road.

It had been raining steadily all day, and Brockman’s vehicle struck an accumulation of water on the highway. The van went out of control and travelled across the highway into the median strip, sideswiped a tree, and came to rest against the cement abutment of the railway overpass.

Evie Brockman was killed in the accident. Brent Brockman suffered a broken right arm and Twyla Brockman suffered a broken collarbone. David Brockman received head injuries which he alleged caused severe headaches for several years and prevented him from working.

Claimants assert that Respondent was negligent in designing the highway and the highway’s drainage system in such a manner as to permit water to accumulate on the road and in failing to install and maintain warning devices to advise drivers that a dangerous condition existed on the highway. The State contends that the highway and drain were not negligently designed or maintained.

At the accident site the U.S. Route 66 by-pass is a four lane highway divided by a 33-foot wide median with a posted speed limit of 45 miles per hour. The road and drainage facilities were build in 1937. The drainage facilities consist of a 12 foot by 5.5 foot concrete box culvert running diagonally east and west under the pavement directly north of the C & IM Railroad crossing. Twelve inch storm sewers are located on either curb of the southbound lanes just north of the box culvert and drain into the culvert. About 90 feet north of the box culvert there is an additional 12-inch storm sewer on the east curb of the southbound lanes.

David Brockman testified that it had been raining constantly on November 15, 1968. At the time of the accident he was travelling about 40 miles per hour, and his car lights and windshield wipers were operating. He described the visability as "good,” but said that as he approached the accident site, he was not able to see the water on the pavement. He said he didn’t remember anything about how the accident occurred from the time his van struck the water.

Harold B. Edwards, an Illinois State Trooper who investigated the accident, testified that he observed a six-inch deep accumulation of water on the road to the northeast of where the Brockman vehicle left the highway. He located a clogged drain beside the roadway from which he removed some debris. The road thereafter drained water in about 40 minutes.

Edwards stated that he had driven over the highway "many times” when it had been raining but did not recall whether he had ever seen water accumulate on the road. On cross-examination Trooper Edwards testified that he had passed the accident site "many, many times” but had never seen water on the pavement at the point of the accident.

Edwards said that as he approached the scene of the accident, he could see the water on the pavement from about 150 to 200 feet ahead.

Claimants introduced into evidence a United States Department of Commerce Climatological data sheet for Springfield, Illinois, which showed that 1.03 inches of rain fell on November 15, 1968.

George Helmerich, an engineer employed by the Illinois Division of Highways, testified for Respondent that he had supervisory authority over the maintenance of Sangamon County highways in 1968 and in particular over the portion of the U.S. Route 66 by-pass whereon the accident occurred.

Helmerich identified photographs of the storm drains along the highway and stated that they were standard drains as used generally throughout the highway system. He further stated he was aware of no prior instances of the drain at the accident site becoming plugged. He said that there had been other areas where drains became plugged, but that the accident site was not a "problem area.”

Helmerich said that the 30-foot wide median area drained onto both the northbound and southbound lanes, and that it was possible that the drainage carried with it twigs, leaves and dry grass which clogged the drain.

On November 15, 1968, Helmerich had assigned two men to clear and repair sewers on the section of roadway whereon the accident occurred. It was customary for the men to clear sewers in rainy weather in areas where they had previously experienced drainage problems. He testified that the men worked from 8:00 a.m. until 4:30 p.m. and travelled over the entire section of roadway cleaning any areas that were not draining.

It is axiomatic that the State is not an insurer of the safety of all persons who use its highways but is only required to use reasonable diligence in maintaining the roadways under its jurisdiction and control. Breens v. State of Illinois, 21 Ill.Ct.Cl. 83. In order to recover for their injuries, Claimants bear the burden of proving by a preponderance of the evidence that Respondent breached its duty of reasonable care, that they were themselves free of contributory negligence, and that the negligence of Respondent proximately caused their injuries.

Claimants seek to charge Respondent with negligence in both the design and maintenance of the highway. Claimants first argue that because the highway and drain were designed in such a fashion as to permit debris and twigs to wash from the median onto the drain on this occasion, Respondent was negligent.

This highway had been designed in 1937. The record fails to show even one accident caused by flooding in the 31 year interval between the design of the highway and the instant action. Illinois State Trooper Edwards, who had been assigned to Sangamon County for 16 years, testified that he had passed the accident site many times when it had been raining and could not recall its flooding previously.

George Helmerich, an engineer in charge of maintaining the accident site, stated that the accident site was not a problem area with reference to flooding. Further, Helmerich also said that the drain which had become plugged was of a standard design used throughout the highway system.

Claimants have presented no testimony to indicate that the design of the highway and drains were not in conformity with accepted standards in the industry at the time they were constructed, and the record is bare of any evidence of prior flooding which would have put Respondent on notice of the existence of a dangerous condition at the accident site. That in a single instance a drain became clogged is not proof that either the highway or the drain were negligently designed.

Claimants’ contention that the State was negligent in failing to properly maintain the road and drain must also be rejected. Claimants contend that in employing only two men to check drains from 8:00 a.m. to 4:30 p.m. on the day of the accident, the State did not act with reasonable diligence. Essentially, Claimants argue that because it was raining on November 15, 1968, the State should have kept men on duty cleaning drains until the rain ceased.

Again, this record is devoid of any testimony upon which the State can be charged with constructive notice of the tendency of the portion of highway in question to flood. The testimony of the State’s engineer that this was not a "problem area” is uncontradicted, and we are not convinced that the State in the exercise of reasonable diligence was required to maintain a constant surveillance over this drain on the chance that it might clog and flood the highway.

Although the Court regrets the damages suffered by Claimants, we conclude that Claimants have failed to prove negligence on the part of Respondent, and these claims are accordingly denied.


text:
    (No. 6112
    Franciscan Sisters of the Immaculate Conception of the Order of St. Francis, Etc., Claimants vs. State of Illinois, Respondent.

      Opinion filed October 6, 1975.

   Holderman, J.

Claimant, owner of St. Anthony’s Hospital, filed a claim herein for hospital services supplied to Charles Hamerlinck.

The facts are undisputed. In September, 1969, Charles Hamerlinck, 63 years of age, became a patient at St. Anthony’s Hospital and was not discharged until February, 1970. The total charge for the hospital services was $9,231.50, part of which has been paid. In November, 1969, while a patient in the hospital, Hamerlinck applied for Public Aid assistance through the Rock Island County office of the Illinois Public Aid Department. The Rock Island County Public Aid office began an investigation into the eligibility of the patient.

It appeared that previously, in 1967, Hamerlinck had sold his home for a net price of $4,700. In making its investigation, the local Public Aid office could not account for $3,226 of the proceeds and, therefore, could not determine if Mr. Hamerlinck was eligible for Public Aid. In effect, the Public Aid office found that the patient possessed excess assets in the amount of $3,226 and was therefore ineligible for aid. There was an appeal taken from this, and on appeal, the Department concurred in the determination that the patient did possess excess assets and entered its order to that effect on September 11, 1970. No appeal to the Courts was taken from that Department order.

Mr. Hamerlinck’s condition improved to the extent that he was able to leave the hospital and go to a nursing home. However, the nursing home wouldn’t take him without being assured it would be paid for services it would render him.

In January of 1970, Claimant and the Rock Island Public Aid office orally agreed that the hospital would look to Mr. Hamerlinck for the payment of its bill in the sum of $4,719.80 and that the Department would approve Mr. Hamerlinck as a Public Aid patient retroactive to October 1, 1969. This would facilitate arrangements for the nursing home to accept Mr. Hamerlinck.

A previous suit for the sum due was filed in the Circuit Court by Claimant against the Illinois Department of Public Aid. The Circuit Court dismissed the case on the grounds that the administrative decision rendered by the Department of Public Aid was a final and binding determination of the issues precluding further litigation.

The hospital appealed to the Appellate Court for the Third District of Illinois. The Appellate Court sustained the trial court’s dismissal of the action but based its decision on the grounds that the proper forum to litigate the claim was in the Court of Claims. It made no other determination. See Franciscan Sisters etc. v. Illinois Department of Public Aid, 3 Ill.App.3rd 587, 278 N.E. 2nd 105. After that court case was dismissed, the hospital filed its claim before this Court.

The authority for payment of the claim is statutory. See Ill.Rev.Stat., Ch. 23, §11-13. The provisions of the Public Aid Code authorize payment directly to a firm who supplies goods or services to a recipient; a recipient being a person who is receiving financial aid under any provision of the Code.

The Respondent, State of Illinois, argues that the Claimant herein was a party to the previous administrative proceedings and therefore was barred from making further claim in this Court. This Court previously held, on a motion to dismiss, that the hospital was not a party to the administrative proceedings and therefore was not bound. Our position is that the hospital had no standing to appeal from the prior adverse administrative order. Respondent argues, however, that Claimant assisted the patient in his application for benefits and in his appeal from the local office to the Department; that Claimant was present at the hearing; that counsel testified, stating that he was present on the behalf of the hospital; that this made him a party to the administrative proceedings. Respondent acknowledges, however, that in order to participate in an administrative review, it is necessary that one be a party of record. See Winston v. Zoning Board of Appeals, 407 Ill. 588.

We do not agree that the hospital was a party of record at the administrative proceedings, and no authority has been cited from which this conclusion must be reached. We see no reason to reverse our former holding in this regard.

In further defense of the claim, Respondent contends that Claimant is estopped to deny the validity of its oral agreement with the Rock Island Public Aid office that the hospital would look to Mr. Hamerlinck for payment of its bill in the amount of $4,719.80. The hospital made this agreement in order to facilitate the removal of Mr. Hamerlinck from the hospital to the nursing home. In return, the Department approved Mr. Hamerlinck as a Public Aid patient retroactive to October 1, 1969. This agreement was sometime in January of 1970. Further, Respondent argues that Claimant waived any claim against the State of Illinois. The waiver theory was substantially the same as the estoppel theory. The agreement between the hospital and the local office of the Public Aid was based on the understanding that there were excess assets in the hands of Mr. Hamerlinck, a fact which did not exist. There was thus a mutual mistake in fact which was a part of the consideration for the agreement.

There is a question whether Respondent can raise the issue of estoppel or waiver without having affirmatively pleaded the defenses. I.L.P., Estoppel, Ch. 2, §36, Vol. 18.

Estoppel is allowed as a defense when to do otherwise would help perpetrate a fraud or cause injustice. It is applied when the facts show that a party conducted himself in a way calculated to influence other who have, in fact, been influenced by it and where substantial injustice results unless the party’s promise is enforced. I.L.P. Estoppel, Ch. 2, §24, Vol. 18.

In the case before the Court, there is no proof of fraudulent intent on the part of the hospital, and no fraud is being perpetrated by refusing to apply the doctrine.

Nor are we impressed with Respondent’s argument that Claimant has waived its rights. Clearly there was no intentional relinquishment of a known right. I.L.P., Estoppel, Ch. 2, §21, Vol. 18.

Claimant is hereby awarded the sum of Four Thousand Seven Hundred Nineteen and 80/100 Dollars ($4,719.80), the amount unpaid on the Charles B. Hamerlinck hospital bill.


text:
    (No. 6149
    Florence Nestman, Administratrix, ETC., Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 27, 1975.

    Richard W. Husted, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Burks, J.

This is a claim for wrongful death. Claimant is the widow and administratrix of the estate of Clifford Nestmann, who died on September 6, 1970, when the motorcycle he was driving collided with a safety island and traffic sign on Highway 31, immediately north of its intersection with Virginia Road in McHenry County. The court’s jurisdiction is stated in the Court of Claims Act, §8(d).

The State’s liability, if any, must be based on a finding that the Respondent was negligent; that its negligence was the proximate cause of the death of Claimant’s husband; and that the decedent was free from contributory negligence. Howell, Administrator of the Estate v. State, 23 Ill.Ct.Cl. 141. Before determining these issues, we summarize the facts in the record as follows:

Very early in the morning of September 6, 1970, at about 3:30 a.m., Claimant’s husband was travelling southward on Illinois Route 31, approaching its intersection with Virginia Road. It was dark. He was operating a motorcycle, and was the lead vehicle of two other motorcyclists who were his companions. He was travelling just inside and to the right of the white center line of Route 31.

At this point Route 31 heads straight north and south for a distance of several miles. The only deviation from a straight southerly course, which Claimant’s husband was travelling, was immediately north of the intersection with Virginia Road. There southbound travelers, due to the recent reconstruction of the intersection, were required to swing out to the right to pass a recently constructed safety island.

The reconstruction of the intersection included the placement on Route 31 of an elongated curbed island in the middle of the highway, 433 feet in length. Southbound traffic was required to swing out to the right to go around it. From the north point of this island, a corrugated, raised rumble strip extended northward an additional 150 feet.

The construction was completed, and Route 31 had been reopened for traffic for 20 days. A reflectorized sign reading "KEEP RIGHT” was in place on the island approximately 33 feet south of the island’s north tip. This sign faced and warned southbound traffic.

Claimant’s husband, traveling approximately 60 to 65 miles an hour, which was then within the speed limit, traversed the raised rumble strip in the middle of the highway, struck the north point of the island, and continued on, striking the right edge of the "KEEP RIGHT” sign. He was thrown from his vehicle, struck the pavement some great distance from the point of impact, and was pronounced dead on arrival at the hospital in Elgin.

Prior to the reconstruction of this intersection, there had been for several years an overhead yellow blinker light which operated 24 hours per day in the center of the intersection. This light provided some illumination, but its primary purpose was to warn approaching motorists of the intersection. After the reconstruction of the intersection this light was removed, and new lighting was installed. It is undisputed that, at the time of the accident, there was no overhead light fixture in the immediate vicinity of the north end of the island where the accident occurred. The evidence is conflicting as to whether the intersection itself was illuminated, and, if so, how well. The evidence is also conflicting as to exactly what warning signs were in place at the time of the accident. These disputed matters are discussed more fully below when we deal with the alleged negligence of the State.

Claimant, in her brief, states her theory that the State was negligent as follows:

1. In failing to continue lighting this intersection, after having done so for years, and after claiming that it recognized need for, and had installed, new lighting on May 22, 1970, some three months prior to the collision resulting in death.

2. In failing to light the hazardous part of the intersection, i.e., the approach to the island where the pavement curves to the right to go around the island; and

3. In failing to provide warning signs or blinkers on such approach.

These points will be discussed in the order stated.

Alleged failure to light the intersections.

Claimant’s two eye witnesses, the other two motorcyclists travelling with Claimant’s husband, testified that the intersection was totally without illumination at the time of the accident. Decedent’s father-in-law testified that at about 6:30 a.m. the morning of the accident he went to the scene of the accident and found that the light pole was down, not having yet been installed, and that there were no lighting fixtures overhead. Another of the Claimant’s witnesses, Byron Brouty, whose parents lived near the intersection, testified that no lights were installed at the intersection until a year after the accident, and then they were installed on wooden poles.

The testimony of this witness, like that of the decedent’s father-in-law, that the light at the intersection had not been installed at the time of the accident, is clearly contradicted by the weight of the evidence discussed below: the observation of the police officers called to the scene; the business records of Commonwealth Edison; and the records of Respondent’s Division of Highways.

Edward Sachel, an officer of the Cary Police Department, knew that the overhead lights were in place at the time of the accident but could not say whether they were on, since his own car lights shown on the motorcycle, on Mr. Nestmann’s body, and provided all the light he needed.

When this officer arrived at the scene, he saw two men fighting. They were later identified as Claimant’s two eye witnesses who were members of a motorcycle club, the "Tin Ponies,” and who were threatening Deputy Sheriff Edgar Fair because he hadn’t moved the decedent’s body.

Edgar Fair, Deputy Sheriff of McHenry County, could cast no light on the question of whether the overhead lights were on. He couldn’t recall, because he was so frightened and shook up at the time. One of the other motorcyclists had threatened to kill him if he didn’t take his friend to the hospital in the squad car instead of waiting for the ambulance he had called.

George A. Stackhouse, an Algonquin policeman, testified that he arrived at the scene of the accident shortly after it occurred, and that the area was well lit by big arc lamps.

The officer said the area was so well lighted that he did not need to use his flashlight; that, in fact, he was able to see and to pick up small pieces of the bike. On cross-examination,he officer’s testimony was unshakable. He testified that "we had no trouble in seeing and even in picking up small bits of metal”. He was also positive that the illumination was provided by the overhead lights and not by car headlights.

In our opinion the testimony of Officer Stackhouse that the area was well lit by arc lights should be accepted, even though he was in error in describing the lights as blue rather than amber, as stated below by Commonwealth Edison.

Pursuant to a subpoena, Mr. Joseph J. Stephens, of Commonwealth Edison, testified that his company installed two mercury vapor lights of 15,000 lumen power each at the intersection on May 22, 1970, three months before the accident. Mr. Stephens further testified that the lights were ordered by, and billed to McHenry County Division of Highways, and that Commonwealth Edison had the responsibility for maintaining these lights. The records of Edison, also subpoenaed and admitted into evidence, indicate that there was no interruption of electrical facilities or malfunction in these lights for the month of September, 1970, nor did Edison ever learn of a malfunction in these lights even though, in such an instance, they always eventually do. The lights installed were of an amber color, rather than the conventional blue. Mr. Stephens explained that amber is a more dramatic light than blue to call attention to the intersection, and that these lights were visible from a distance of several miles. In this connection, we notice that the evidence shows that the approach to this intersection from the north was straight and level for almost two miles.

The preponderance of the evidence does not support Claimant’s first contention that the intersection was not adequately lighted at the time of the accident.

Alleged failure to light the hazardous part of the intersection. Claimant is correct in that there was no additional light at the northerly tip of the safety island which the decedent hit. The Court takes judicial notice of the fact that, while mercury amber lights can be seen for great distances, they would not fully illuminate the tip of the island several hundred feet north of the intersection. Respondent’s color photos, admitted into evidence, show the great distance of the lighting fixtures from the northerly tip of the island. Respondent’s Exhibit 3 is also significant in this regard, showing that the two light fixtures are installed at the very southern margin of the intersection. Additional overhead lights at the north end of the island would, no doubt, have been an added safety factor. The Court cannot say, however, that the State was actionably negligent for failing to install such additional lighting at the northern tip of the safety island in view of the 150 foot rumble strip warning at the approach to the island, the numerous reflectorized warning signs discussed below, and the fact that there was much better lighting at the intersection than had previously existed.

Claimant relies heavily on the fact that the intersection was formerly lit by one yellow, flashing warning light. Obviously, if two amber mercury arc lights did not light up the tip of the safety island, a blinking yellow light 500 feet south of the scene would not have done so either. The previous blinking light at the intersection was a caution light only and did not illuminate the intersection. Claimant’s contention that the State failed to continue lighting this intersection is without merit.

Alleged failure to provide warning signs or blinkers. Although Claimant’s witnesses gave conflicting testimony as to the type and number of warning signs, the evidence clearly establishes that the following signs were in place at the time of the accident: (1) A diamond-shaped "CENTER CURB AHEAD” sign more than 500 feet north of the island; (2) a "side-road” sign 600-700 feet north of the intersection; (3) a diamond shaped sign depicting a "staggered intersection”; and finally (4) the "KEEP RIGHT” signs on the island itself; all of these were in place at the time of the accident, and were reflectorized.

This testimony, confirmed by other witnesses, was given by William Carl Brandt, Jr., of the Division of Highways, who was responsible for signs and pavement markings for the area in question.

Joseph Kostur, of the Division of Highways, prepared Respondent’s Exhibit 8, a diagram of the area in question showing the aforesaid signs, their position, and where the street lamps were placed. This doqument’s accuracy was verified by Brandt, by the Commonwealth Edison representative, and by the three police officers. Hence we find Respondent’s statement of facts concerning the reflectorized warning signs supported by a preponderance of the evidence.

The evidence also shows that the curb of the island was reflectorized, and that the highway had been re-striped with a reflectorized center line and edge lines. The 150 foot rumble warning strip approaching the island was also in place. Claimant’s assertion that the safety island was a "death island” is further contradicted by the accident statistics submitted by the Respondent.

The cases cited by Claimant do not support her theories as to Respondent’s alleged negligence. In Chicago v. Powers, 42 Ill. 169, a 1866 case, the Court ruled that previous accidents were admissible where a pedestrian fell off of a swinging, unlit bridge. In the case at bar, the only testimony as to previous accidents was produced by Respondent during presentation of its casein-chief. This evidence clearly established that the number of accidents at the intersection had declined as a result of the reconstruction of the intersection. In Jockens v. City of Chicago, 6 Ill.App.2d 144,127 N.E.2d 142, the court ruled that the city did not have adequate notice of the non-functioning of a temporary fixture. In Baras v. City of Chicago Heights, 99 Ill.App.2d 221, 240 N.E. 381, the Court ruled that where it was alleged that the city was negligent in the way it lit an intersection, and expert testimony was given as to industry lighting standards, then a question of fact was raised for the jury to determine. There was no expert testimony offered by the Claimant in the case at bar, and we find no proof that the lighting was inadequate or violative of industry standards. In fact, the evidence was that the lights placed were particularly visible for a distance of miles to call attention to the intersection.

As to Claimant’s contention that the State was negligent in constructing a "curbed island” in the intersection and for failing to light it, she cites Huyler v. City of Chicago, 326 Ill.App. 555, 62 N.E.2d 574; Rohwedder v. Chicago, 332 Ill.App. 700, 53 N.E.2d 495; and O’Connell v. Chicago & North Western Railroad Co., 305 Ill.App. 430, 27 N.E.2d 644. The first two cases are abstract opinions only. Huyer apparently hinged upon plans for reflectorized buttons which were not installed, as well as a similar accident prior to the one at bar therein. In the case at bar, the evidence clearly established that all plans for signs and striping were fully implemented prior to the accident, as well as the absence of any similar mishap either before or after Nestmann’s fatal accident. In Rohwedder, another abstract opinion, the case turned upon the concealment of an island and pole due to a snowstorm. The O’Connell case involved a suit by a passenger (and hence no contributory negligence) for injuries sustained in a car collision with an unlit dirty gray or black railroad trestle which was unpreceded by any signs. In the case at bar, the adequacy, position, and number of signs in place were clearly established. Claimant’s "inadequate lighting” theory has been previously discussed.

In support of her theory that the State failed to provide warning signs in advance of the intersection, Claimant relies on Wells v. Kenilworth, 228 Ill.App. 332. In Wells, the Court reversed a directed verdict for defendant and remanded the case for new trial on the grounds that certain questions of fact which should have gone to the jury were raised. In that case, plaintiff drove into an unlighted safety island lamp post maintained by the department which was two feet square and ten feet high. The salient points in Wells were as follows: (1) The lamp post was unlit; (2) it was shaded by trees; (3) it had been struck a few days before under the same conditions by a truck; (4) the department was responsible for turning on the lights; (5) there were no advance warning signs to advise of the presence of the island. All of these facts differ from the evidence in the case at bar.

Finally, it is clear to the Court that even if we could find some degree of negligence on the part of the State in this case, it was not the proximate cause of the accident. The preponderance of the evidence supports our finding that the negligence of Claimant’s intestate was the proximate cause of his fatal accident. He was certainly not free from any contributory negligence.

This Court has always followed the rule that contributory negligence on the part of a Claimant is a bar to recovery of damages. The contributory negligence rule was carefully reconsidered and reaffirmed by the Illinois Supreme Court in Maki v. Frelk, 40 Ill.2d 193. This rule makes it incumbent upon the Claimant to prove that her husband did nothing to contribute to the accident. Emm and Vanda v. State, 25 Ill.Ct.Cl. 213.

The deceased’s two companion motorcycle drivers each saw the safety island as they approached it. Even if the deceased had been unfamiliar with the intersection, he should have been able to see what the others saw in the same existing light.

Claimant’s eye witness, James Clark, testified as follows:

Well, we were going down the road. Like I say, they were in front of me a ways. It looked to me like Cliff [Nestmann] was going a little too close to the center curb.
I was going to say something before, but I didn’t. It looked like he was getting a little too close to it [the safety island], I thought maybe he was going to swerve at the last minute or miss it.
Then all of a sudden I seen the sparks flying from his motorcycle when he hit the ground. Then I knew he hit the curb.

The other eye witness, Patrick Beckman, testified as follows:

Well, Cliff Nestmann and I were in the lead. Jim had a problem with his bike, and we were in the lead. I was just a little bit behind him. He was in the left, like where the left tire of a car would ride. He was riding there, and I was riding to the right. As we approached the intersection he hit the curbing there. He went on the rippled part and hit the curbing, and that’s where he got killed.

It appears to the Court that the deceased had ample opportunity to go around the safety island, but without any deviation in his course whatsoever, traversed all or part of the rumble strip, a distance of 150 feet, and then hit the north end of the island dead center.

There was nothing to obstruct decedent’s view of a well posted and illuminated intersection, the presence of which was clearly marked by several reflectorized signs as well as reflectorized striped markings, and a 150 foot rumble strip. He was driving at a speed of 60 to 65 mph on a high-powered motorcycle which hád been modified, and whose standard tire with a four and one-half inch tread had been replaced with one of only a three inch tread. It was on this high speed vehicle that the decedent met his death, and which was ultimately buried with him, according to the testimony of his companion, Patrick Beckman.

Prior to the accident, deceased was apparently driving in the very center of the highway. He ran straight into a reflectorized sign with his headlights on. Moreover, he had passed the island earlier in the evening going north, and should have known that it was there. At the time of his demise, Clifford Nestmann’s driving license had been suspended, the second such suspension he had received.

The evidence shows that Mr. Nestmann was familiar with the intersection in question and had driven past it only a few hours before his fatal accident. Testimony of one of the eyewitnesses also established that there was no change in conditions during this brief period of approximately four hours. One who has earlier the same evening traveled over a certain stretch of highway is charged with a knowledge of its condition so long as the condition is unchanged on his return trip. To approach a place of known danger without care commensurate with such danger is contributory negligence. Doolittle v. State, 21 Ill.Ct.Cl. 112; Mason v. State of Illinois, 21 Ill.Ct.Cl. 446; Mounce v. State of Illinois, 20 Ill.Ct.Cl. 268; Link v. State of Illinois, 24 Ill.Ct.Cl. 69.

An analagous situation was presented to this Court in Sam Weisman v. State of Illinois, Ill.Ct.Cl. No. 5233, filed May 9, 1972. In Weisman the Claimant, while driving his automobile at night, struck a metal guard rail serving as a lane divider on the Dan Ryan Expressway. In that case there was a rumble strip about 100 feet long in front of the divider, which we said "would give every driver ample warning of the existence of the divider ahead" and, moreover, "Claimant had been over the road on at least one previous occasion.”

This Court has also stated and followed the rule that it is the duty of every driver to maintain control of his vehicle, and the failure to do so amounts to negligence. Schuck & Maryland Casualty Co. v. State, 25 Ill.Ct.Cl. 209.

While the Court regrets the tragic death of Clifford Nestmann, this claim must be, and is, hereby denied.