author: Burks, J.

text:
    (No. 5848
    Gloria Fuqua Kessler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 15, 1974.

    Lewis, Blickhan & Garrison, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Burks, J.

This action was brought to recover damages allegedly caused by negligence of the respondent in failing to maintain the surface of a highway bridge in a safe condition or to warn the claimant of the unsafe condition of the bridge surface when covered with ice or frost.

The bridge, on which claimant’s accident occurred, spans the Illinois River on U.S. Route 67 near Beardstown, some 45 miles northwest of Springfield.

This particular bridge, according to the record and photo exhibits, had a steel mesh or grid type of surface which is not commonly found in Illinois or at least in that section. Virgil Roberts, a section maintenance supervisor with the Division of Highways, testified that all of the other bridges in his jurisdiction are surfaced with either blacktop or concrete and that, to his knowledge, this was the only bridge in the entire area of west central Illinois that has this steel mesh type of surface construction.

Beverly Johnson, the State Police Trooper who investigated claimant’s accident at the scene a few minutes after it occurred, described the surface of the bridge as having been covered with cement at one time. However, the cement topping had been removed or flaked away leaving the steel mesh exposed on the surface and the rough concrete filling the the square openings in the mesh was lower than the mesh itself. Trooper Johnson identified claimant’s photo exhibit as an accurate image of the bridge surface at the time of claimant’s accident. James Carl Sellers, a highway maintenance supervisor for District 6, said that this type of surface had existed on the Beardstown Bridge for quite some time prior to claimant’s accident.

Continuing with the facts which we find to be supported by the evidence, it appears that on November 24, 1969, at approximately 6:45 a.m., claimant was driving her 1960 Chevrolet southbound on Route 67 from her home in Rushville to her place of employment in Springfield.

It was a cold, frosty and foggy morning, but the pavement from Rushville to the Beardstown Bridge was clear and dry. There was no appearance of ice or snow on the highway. Unknown to the claimant, the bridge was covered with ice which caused very slick driving conditions on the bridge. Claimant was in no particular hurry that morning and had slowed down by reason of a flashing light at the intersection a short distance from her approach to the bridge. When claimant drove onto the bridge her car slid into the railing on the right hand side, then slid over into the northbound lane and collided with a semi-trailer. Claimant’s car was demolished and she suffered some severe injuries. She was unconscious for some time after the collision and does not recall exactly what happened on the bridge. Trooper Johnson could not talk to the claimant in her condition, and based his determination as to how her car skidded upon the eye-witness statement of a Mr. Kessler, the driver of the truck with which claimant collided.

Trooper Johnson also confirmed that, although the highway was clear and dry, the bridge surface was covered with a sheet of ice so slippery he could hardly stand up when he walked upon it. Trooper Johnson said he knew that this bridge got slick before the highway did, which he said is a natural thing; that he knew it was customary to salt this bridge on many occasions in freezing weather; but that the bridge had not been salted on this morning prior to claimant’s accident. In describing the position of claimant’s car and the truck when he arrived at the scene, Trooper Johnson said claimant’s car had turned completely around, in the opposite lane, and had been struck in the rear by the semi trailer. He said it took the truck a long distance to stop after colliding with claimant’s car. The Trooper said that when he drove slowly onto the bridge, he could tell from driving on it that it was very slippery.

Respondent correctly states the well established rule that, before claimant can recover damages for her injuries, she must show by a preponderance of the evidence that [1] the State was negligent; [2] that she was free from contributory negligence; and [3] that the negligence of the State was the proximate cause of her injuries. Respondent contends that these three elements were not proven by the evidence introduced and that, therefore, this claim should be denied.

We believe that a careful examination of the facts warrants our finding that the preponderance of the evidence decisively supports claimant’s contention on all three essential elements of proof required to sustain her claim. As we analyze the facts on which we base our conclusion, we will refer particularly to our decision in Bovey v. State, 22C.C.R. 95 in which we held the respondent liable for damages on facts that are quite similar to the case at bar. Although respondent undertakes to distinguish the Bovey case on comparatively minor points, we find the basic facts in Bovey to be so strikingly similar to the facts in the claim before us that, it seems to us, the Bovey decision is directly in point on the key issues involved here.

In the Bovey case, the claimant’s accident occurred on a similarly constructed bridge which spans the Rock River near Dixon. That bridge, similar to the Beardstown bridge, had a steel grid floor with rectangular openings, which, as respondent knew, was subject to becoming icy and slick on occasions when the approaching highway was dry and free from ice or snow. These facts are exactly the same as the case at bar. It is true, as respondent points out, that the bridge in Bovey had a defect in the alignment of the steel grid sections which caused some weaving and side swaying motion when the surface was dry. However, it was the ice on the bridge, and not the misalignment of sections, which caused claimant’s accident in the Bovey case as it was in the case at bar.

There is one distinction which makes the authority of Bovey more favorable to the claimant in the instant claim. The bridge in Bovey had a large warning sign at its approach which read, "Bridge Slippery When Wet— Frosty”. Since there was no frost on the roadway or countryside and the highway was dry, we held that this sign was ineffective as a warning that the bridge might be icy when there was no frost, ice or snow visible elsewhere.

Such a sign, had there been one in the case at bar, might have been regarded as an adequate warning to the claimant since the countryside was covered with frost even though the highway was dry.

Such evidence as we find in the record on this point indicates that there was no sign or device of any kind to warn the claimant of the quick freezing propensity of the steel grid surface of the bridge, or, for that matter, of any other hazard on the bridge. Claimant’s photo exhibit showing a view of the bridge from the direction of her approach reveals no warning signs or devices. Since claimant alleged in her complaint that respondent was negligent in failing to warn her of any dangerous condition on the bridge, it would have been an affirmative defense to this allegation if respondent had been able to show that there were any such warning signs. Yet, the respondent clearly avoided this question in both direct and cross examination of the witnesses which include 4 state employees who were all very familiar with this bridge and the freezing qualities of the steel grid surface. The 4 state employees who failed to mention any warning signs when they testified at the hearing were: Beverly Johnson, State police trooper; Virgil Roberts and James Sellers, both State highway maintenance supervisors; and Neil Morton, State traffic engineer in this district. This court said in Tyler v. State, 26 C.C.R. 231 at page 242:

"The State of Illinois owes a duty to the traveling public to maintain adequate and proper warning signs or devices alerting the public to the unusual and dangerous conditions ahead.”

Inferentially conceding that the state failed in its study to maintain any warning signs at the bridge, respondent argues that such signs were unnecessary in claimant’s case since she had crossed this bridge many times before and should have known what to expect. In support of this contention, respondent relies on Pulizzano v. State, 22 C.C.R. 234 in which we said at page 244:

"Warning signs only serve to notify persons of an existing danger. If the danger is shown, a warning sign is useless.”

The Pulizzano case, from which the above statement is lifted, involves a claimant who fell from a dangerous trail in the black darkness of midnight in a state park, and the claimant there knew the trail was dangerous before the accident occurred. These facts bear no similarity to the case at bar. However, we have considered the question as to whether claimant, even in the absence of warning signs, should have known of the dangerous condition of the bridge on the morning of her accident.

Claimant testified that she had crossed this bridge many times, including son: occasions when it was covered with ice while the pavements were dry. However, she also testified that on such occasions the bridge had been salted. Even if claimant was presumed to know that this bridge became ice in very cold weather when the pavement is dry, she was accustomed to finding the bridge salted when it was icy. Respondent’s failure to salt the bridge or to warn of the danger on this particular morning, in our judgment, presented a hazard that could accurately be described as a trap for the traveling public. The dangerous condition of the bridge was certainly not readily foreseeable by the claimant.

We take judicial notice of the fact that, as we said in Bovey, "It is not unusual for bridges to freeze in snowy, icy, and extremely cold weather, when the pavement is free from ice or snow. This condition occurs, because the ground temperature imparts a warmth to the pavement, while the bridge floor obtains no such warmth”.

There is ample testimony in the record that respondent had known for some time that ice would form on this particular bridge in freezing weather when the highway was totally dry, and there was no ice or snow elsewhere in the vicinity. Trooper Johnson said, after describing the construction of the bridge floor, "This [ice on the bridge when the other pavement was dry] is a natural thing”. Notwithstanding this knowledge, the policy of the respondent, prior to the date of claimant’s accident, was to salt the bridge only after being informed of the dangerous condition. In fact, the respondent made no attempt to check the bridge for ice, but would wait until someone called to notify the maintenance men of ice on the bridge before they would proceed to apply salt. The calls might come from the police, the sheriff, or someone else. Claimant was totally unaware of respondent’s policy to salt the bridge only after someone phoned to inform the highway department that the bridge was icy. It just happened that each time the claimant had previously crossed in ice conditions, salt had already been applied to the surface.

Over objections of respondent, Mr. Sellers, the state highway maintenance supervisor, testified that, immediately after claimant’s accident, he personally instituted a new policy for salting this bridge. Under Sellers’ new policy, the maintenance employees start to work at 4:00 a.m. rather than 8:00 a.m.; they check this bridge every day rather than wait for someone to call; this schedule includes holidays and weekends unless the weather is warm; and when they find icy conditions, they salt or cinder the bridge.

We have noted respondent’s proper objection to any evidence as to changes in procedures which were made after claimant’s accident, and the court does not regard such evidence as an implied admission that respondent was guilty of negligence in its prior procedures which caused claimant’s injury. We find the record on this point conclusive without the necessity of any implied admission by the respondent. We consider the above testimony of Mr. Sellers admissible under the rule of evidence stated in Kuhn v. I.C.R.R. Co., 111 Ill.App.323 at page 329, and restated in our Bovey decision at page 101, but only as prologue to his testimony as to conditions existing prior to claimant’s accident.

Sellers said that when he took over as supervisor, some 8 months prior to claimant’s accident, he was experienced in general road maintenance work but had no prior experience with a bridge surface of the type found on the Beardstown Bridge. Sellers further stated that the state had no written policies that covered his dispatching work crews for salting or cindering bridges. It is apparent to the court that this failure on the part of the respondent, prior to claimant’s accident, led Mr. Sellers, as he stated, to institute a policy of his own to make certain that the bridge was examined and salted when necessary under freezing conditions.

It is obvious from the record that, prior to claimant’s accident, respondent’s procedures in the maintenance of this bridge in freezing weather was incredibly negligent. There were no signs to warn of the danger of ice on the bridge which respondent knew existed in climatic conditions prevailing on the morning of claimant’s accident. The bridge had not been salted or even inspected on that morning when respondent knew that the temperature was below freezing. Under the policy in effect at that time, respondent had no procedure for salting or inspecting the bridge until someone would phone in the information that the bridge was icy.

There is no evidence in the record on which the court could find the claimant guilty of contributory negligence. Claimant, who was unconscious after the impact of her collision with the truck, could not remember driving onto the bridge nor what she did immediately prior to the accident. However, she testified that she had slowed down for the intersection a short distance from the bridge and that she had been in no hurry to arrive at work that morning. This would be consistent with the time she had allowed herself to drive to Springfield. The accident was reported to the State Police at 7:00 a.m. She could have driven the 45 miles to Springfield at a low rate of speed and been there by 8:00 a.m..

The only eye witness to the accident was the truck driver who told Trooper Johnson that he just saw claimant’s car start skidding and it skidded into his lane of traffic. Trooper Johnson found marks on the right hand railing of the bridge which he thought was an indication that claimant’s car struck this curbing first and then spun over into the opposite lane. Accepting this assumption, which was not confirmed by the eye witness, respondent theorizes in its brief that claimant may have lost control of her car after carelessly "driving into the curb”. We consider it an incongruous conjecture to say that the icy condition did not cause the claimant to lose control of her car and strike the curbing, while admitting that the icy condition caused her car to skid into the opposite lane of traffic and turn completely around. We believe the only plausible explanation of this accident is that claimant’s automobile skidded on the ice causing her to lose control and to strike the right hand side of the bridge, then skid on the ice into the northbound traffic lane. In the absence of any evidence to the contrary, we find that claimant was free from contributory negligence.

Bearing on the question of damages, the evidence establishes the following facts concerning the claimant, Mrs. Kessler, Prior to the accident she was in good health and had no injury or illness of any kind, according to her family physician. As a result of the accident, she suffered numerous injuries, some severe and permanant. She was hospitalized for three months in hospitals at Beardstown, Springfield and Rushville consecutively. Dr. Arthur G. Hyde, who attended the claimant immediately after her accident, wrote the following statement in a letter dated March 13, 1970, which was admitted into evidence and reads in pertinent part as follows:

"Gloria Fuqua Kessler was admitted to Schmitt Memorial Hospital in Beardstown on November 24, 1969, with multiple extreme injuries. Life support and maintenance systems were activated, and after several days of extremely "critical situation definitive evaluation of her injuries revealed fractures of the jaw, comminuted complicated fractures of the pelvis, simple fracture of the right radius, cranio cerebral trauma, and multiple lacerations facial sutured. On December 3, 1969, under local anesthesia, fractures of the jaw were wired by my associate Doctor V. I. Machuca. The wiring proved to be unsatisfactory and was removed. On December 9, at the the request of the patient and her family, she was transferred to Memorial Hospital in Springfield, where she was under the care of Doctor Clifford J. Lynch.”

The record contains two lengthy statements of Dr. Clifford J. Lynch, claimant’s attending physician at the Springfield Hospital, which are consistent with the later testimony and prognosis of Dr. Russel R. Dohner, whose qualifications as a physician are impressive.

Claimant was under the care of Dr. Dohner after she was transferred by ambulance from the Springfield hospital to the Culbertson Memorial Hospital in Rushville, approximately one month after her accident. Claimant did not start walking again until one week after her discharge from the Rushville Hospital, about 3 months after her accident. She walked with the aid of crutches and then a cane and limped when she walked for about 4 months.

The record is replete with evidence of severe pain and suffering experienced by the claimant during her long period of recovery. Claimant testified at the hearing on November 18, 1971, that she still has frequent headaches; that her jaw catches as a result of the fracture, causing difficulty in eating; that she has scars on her right arm, on her face, hands and right foot; and that the rod in her right arm from wrist to elbow causes difficulty in using her right hand and slows her typing speed.

The most serious and permanent injuries suffered by the claimant were the multiple pelvic fractures which, according to Dr. Lynch, "have healed in a slightly displaced position”. One hip is quite noticeably higher than the other.

Dr. Dohner explained in detail that claimant’s badly fractured pelvis would always cause her great difficulty in bearing children. He said that on January 26, 1971, a child was born to the claimant by Caesarean section because the risk of having a baby born through her badly injured pelvis was too great. In the future, Dr. Dohner said, "all of her babies will be delivered in the same way. She will have to have a section each time.” Dr. Dohner also said, in response to respondent’s questions, that the risk of injury or even death to both mother and baby is much greater with a Caesarean section than by a normal delivery; and that there is no reason to believe that claimant would not have had normal deliveries in childbirth if this accident had not occurred.

Respondent does not dispute any of the medical testimony as to the seriousness and permanency of claimant’s injuries. Respondent merely points out that §8D of the Court of Claims Act, effective at the time of claimant’s accident, places a limit of $25,000 on any award that may be made for damages in a case sounding in tort. Considering the expenses incurred by the claimant for medical services, which are well documented in the record, her pain and suffering, and the permanency of her serious injuries, we find that the maximum award should be made.

The claimant, Gloria Fuqua Kessler, is hereby awarded the sum of $25,000.00 as damages for her injuries and losses.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    (No. 6692
    Northwest Ambulance Service, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed May 15, 1974.

      Northwest Ambulance Service, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 7001
    Carmen, Alonzo, d/b/a Carmen’s Movers, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed May 15, 1974.

    Edwin M. Raffel, Attorney for Claimant.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 5699
    Joseph M. Croughan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 18, 1974.

      Petition of Respondent for Rehearing denied May 20, 1974.

    Gordon and Brustin, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler and Martin Soll, Assistant Attorneys General, for Respondent.
   Burks, J.

While driving his motorcycle on a state highway, claimant struck a hole at the edge of the pavement. This caused an accident in which claimant sustained personal injuries and property loss for which he seeks damages, basing his claim on the alleged negligence of the respondent in the maintenance of its highway.

While engaged in a project to upgrade Route 83 in Villa Park, respondent provided a temporary detour for traffic. Claimant’s accident occurred at the point where this northbound temporary detour joined the original Route 83 south of Washington Street in Villa Park. Here the two lanes of the northbound detour came directly into the original Route 83 at almost a 45 degree right angle. Claimant’s photo exhibits show that the paved portion of the detour widens in a slight curve at the point where it joins Route 83 for use of vehicles making the right angle turn. Within this curved portion of the detour and at the very edge of Route 83 is the hole which claimant struck with his motorcycle. The hole is approximately 3 feet in circumference. Photos show that the asphalt had crumbled away at the edge of Route 83 adjoining a rut and wash-out about 12 inches deep on the shoulder, exposing the cement foundation of the black top pavement.

Were it not for the detour which entered Route 83 at this point, the hole would be mostly on the shoulder of Route 83 and not in the paved portion of the highway. However, the hole was within the right lane of the detour as indicated by the painted white lines marking the right hand edge of the detour roadway.

Even if we concluded that the hole were on the shoulder, we do not believe the State would be absolved from responsibility under our ruling in Lee v. State, 25 C.C.R. 29, in which we said at page 34:

"While the State must use reasonable care in maintaining the shoulder of a highway, there is no basis to hold that a difference of three or four inches in the levels of the road and shoulder constitutes a dangerous condition per se.”

In the case at bar, the hole was 12 inches deep, a fact that would alone distinguish it from Lee. Moreover, we conclude from examining the photo exhibits that the hole may have been partially on the shoulder but mostly within the main roadway of the detour.

We turn next to the question as to whether the State had actual or constructive notice of this dangerous hole in the highway, as essential element which claimant must prove as we stated in Dockery v. State, 18 C.C.R. 177, DiOrio v. State, 20 C.C.R. 53, and Visco v. State, 21 C.C.R. 480.

In Visco (Supra) we held that . . .

"Where evidence showed that a hole in pavement 16 inches wide, 30 inches long and 10 inches deep had existed for a week, the State could be charged with constructive notice of such condition of the highway.”

In the case at bar, claimant’s witness, Joseph Tate, confirmed the accuracy of claimant’s photo exhibits; recognized the hole in question; and testified that he knew that the hole had been there "2 or 3 months” prior to claimant’s accident, because he had "hit the hole a few times” with his truck. Tate’s truck was a Hendrixon Tractor with a 40 foot trailer which he drove over this route about twice a week. Manifestly, the hole would be less hazardous to such a truck than it would be to a motorcycle.

Respondent urges the court to give little weight to Tate’s testimony that the hole had been there for "2 or 3 months”, since the detour had been opened to traffic only 2 weeks before claimant’s accident. Respondent’s argument does not alter the facts to which Tate testified. Obviously, the location of the hole did not change, nor suddenly appear, when the detour was opened. The hole had existed for some time on the shoulder of Route 83. It was directly in the path of the detour and became a hole in the highway when the detour was opened. The record shows that Tate undertook to explain this in his testimony, and we believe he adequately did so.

We believe that Joseph Tate was a competent witness. He had less reason to be partial than the 2 witnesses from the Highway Department who drove through and inspected the area, 2 weeks before the accident, without noticing the hole or any defect in the road. In any event, the photo exhibits conclusively show that the hole had been in existence for some considerable period of time, longer than necessary to constitute constructive notice to the State under the rule in Visco (Supra).

Finally, we turn to the question as to whether claimant was free from contributory negligence.

The record shows that claimant was proceeding at about 25 m.p.h. in a northerly direction on his motorcycle in the right hand lane of the temporary detour. Immediately at his left was an automobile also northbound. As both vehicles approached the end of the detour where they would turn right onto Route 83, the automobile swung into claimant’s lane, taking up half of it and forcing claimant to ride in the extreme right portion of the lane where the hole was located.

Claimant said the hole was barely visible to northbound traffic, and he didn’t see it until he was right on top of it. His statement as to the visibility of the hole was confirmed by respondent’s witness who never did see it during their inspection. Yet, the photo exhibits gave mute testimony that the hole was there. So does the fact that claimant’s motorcycle hit the hole, bounced up and onto the bumber of the car that was on his left, then slid about 30 feet. Claimant rolled over and over ending up 40 feet from the point of impact.

Claimant admits that he had traveled the accident route twice before but had not previously noticed the hole. This is understandable since the hole was not noticed by the State inspectors. Claimant admits that he was aware of the numerous signs indicating the detour and the large 8 foot sign reading "Road Under Construction. Please Drive Carefully”. The record indicates to us that claimant obeyed this warning. We find that claimant was free from contributory negligence.

Claimant saw his doctor the next day after his accident. He had pains in his lower back and neck; his hands couldn’t close all the way, and knee was swollen. Dr. Charles Pease took x-rays and recommended a course of treatment. Claimant lost 2 days work from his job. The swollen knee condition lasted 3 or 4 weeks, and the pain in his back, off and on, lasted a few months. His doctor bill was $55. His motorcycle which he had purchased new 6 months before for $850 was a total wreck. It had a salvage value of $25.

For his injuries, loss of time and property damage, the claimant is hereby awarded damages in the sum of twelve hundred dollars. [$1,200.00]


author: Perlin, C. J.

text:
    (No. 73-CC-410
    Public Electric Construction Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 5, 1974.

    Landesman & Schwartz, Attorney for Claimant.

      William J. Scott, Attorney General; Saul R. Wexler and Martin A. Soll, Assistant Attorneys General, for Respondent.
   Perlin, C. J.

This cause coming on to be heard on the Joint Stipulation of the parties hereto, and the Court being fully advised in the premises;

This Court Finds that this claim is for labor and material services rendered by Claimant as per Change Order No. 3 dated October 1, 1971, for alterations to computer area, Department of Labor, Bureau of Employment Security, 165 North Canal Street, Chicago, Illinois (Project Number 71-8500-7E, award number 71352, dated March 5, 1971). An investigation of this claim by the Illinois Capital Development Board determined that United States Government Funds were made available to the State of Illinois for this expenditure. A pre-trial conference was held on the 28th day of April, 1974, before the Honorable Joseph Griffin, Commissioner of the Court of Claims pursuant to notice. At the pre-trial conference, the parties agreed that the sum of $5,946.00 (Five Thousand Nine Hundred and Forty Six Dollars) is due and owing to Claimant for materials and services rendered pursuant to the above mentioned Change Order and Claimant’s complaint, the same having been confirmed by the Joint Stipulation filed by the parties.

It Is Therefore Determined and Declared that Claimant has an enforceable claim against federal funds in the amount of $5,946.00 (Five Thousand Nine Hundred and Forty Six Dollars) for services rendered as per the Change Order No. 3 dated October 1, 1971, for alterations to computer area, Department of Labor, Bureau of Employment Security, 165 North Canal Street, Chicago, Illinois (Project Number 71-8500-7E, award number 71352 dated March 5, 1971.

It Is Further Determined and Declared that this claim be paid from the appropriate federal funds available to the Respondent.


text:
    (No. 73-CC-461
    Danny N. Michel, Sheriff, Fayette County, Illinois, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed June 5, 1974.

    Danny N. Michel, Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-168
    Memorial Hospital of Springfield, Illinois, An Illinois Not-For-Profit Corporation, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 5, 1974.

    Brown, Hay & Stephens, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-169
    Memorial Hospital of Springfield, Illinois, An Illinois Not-For-Profit Corporation, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 5, 1974.

    Brown, Hay & Stephens, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-172
    Memorial Hospital of Springfield, Illinois, An Illinois Not-For-Profit Corporation, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 5, 1974.

    Brown, Hay & Stephens, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-350
    Bethesda General Hospital, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed June 5, 1974.

    Bethesda General Hospital, Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-506
    Mobil Oil Corporation, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed June 5, 1974.

    Giffin, Winning, Lindner, Newkirk, Cohen, Bodewes & Narmont, Attorney for Claimant.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-533
    United Van Lines, Inc., Claimant, vs. State of Illinois, Bureau of the Budget, Respondent.

      Opinion filed June 5, 1974.

    United Van Lines, Inc., Claimant, pro se.

      William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-544
    Professional Audit Bureau, Inc., Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed June 5, 1974.

    H. Lee Grace, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-579
    Scherrer Equipment Co., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed June 5, 1974.

    Scherrer Equipment Co., Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-608
    Central Office Equipment Co., Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed June 5, 1974.

    Central Office Equipment Co., Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-638
    Typewriter Service Co., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 5, 1974.

    Typewriter Service Co., Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-641
    Berz Ambulance Service, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 5, 1974.

    Berz Ambulance Service, Inc., Claimant, pro se.

      William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6609
    Pitney-Bowes, Inc., Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed June 5, 1974.

    Pitney-Bowes, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6738
    Pitney-Bowes, Inc., Claimant, vs. State of Illinois, Department of Insurance, Respondent.

      Opinion filed June 5, 1974.

    Pitney-Bowes, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 7037
    Dodge Trucks, Inc., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed June 5, 1974.

    Dodge Trucks, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 5483
    Interstate Bakeries Corporation, A Delaware Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 6, 1974.

    Graham & Graham, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, Interstate Bakeries Corporation, seeks recovery of $5,241.57 for damages to one of its tractor-trailers involved in an accident on U.S. Route 36 at the intersection of Clearlake Village Road on September 26, 1966. Claimant contends that the State of Illinois was negligent in failing to remove an accumulation of oil from the highway and in failing to post a warning of the possible existence of the oil, which omissions are alleged to have proximately caused the accident.

On September 26, 1966, Henry Johnson, a truck driver employed by Claimant, was driving a 1965 Chevrolet tractor and a 1959 Fruehoff semi-trailer westbound on U.S. Route 36. Johnson, who had been driving similar trailor-trailers for over twenty-five years, was returning his empty trailer to Springfield after having made a delivery in Decatur, Illinois.

At approximately 3:00 a.m. as a light rain began falling, Johnson approached the intersection of Route 36 and Clearlake Village Road. He testified that he was traveling about forty-five miles per hour. As he reached the intersection, his rig hit two large bumps in the road and an oil slick. He lost traction on the oil, and his wheels locked. Johnson testified that he attempted to control the rig, but it jackknifed and skidded across the lane of oncoming traffic into an embankment where it overturned.

Mrs. Richard Hooper, who lived near the scene of the accident, was awakened by the crash and rendered aid to Johnson. She testified that when she arrived at the crash site she saw another westbound tractor-trailer also lose control at the intersection of Route 36 and Clearlake Village Road and narrowly avoid an accident.

This second tractor-trailer was driven by one Orvand R. Bolting. He testified that as he approached the intersection he saw Claimant’s overturned tractor-trailer, and he began to slow his own rig. He said that as he applied his brakes his rig skidded and jackknifed, but that he managed to bring it under control. After coming to a stop, he inspected the highway at the Clearlake Village Road intersection and found that puddles of oil had collected on Route 36.

Robert Walsh, the Illinois State Trooper who first arrived at the accident scene, testified that while still pinned in the wreckage Johnson complained to him that the road was slick. He said that he later talked to Johnson in the hospital where he was taken; and Johnson told him that it was possible that he had "dozed off for a split second.” Walsh also stated that he did not observe any skid marks at the scene, and that it did not appear to him that Claimant’s rig had jackknifed.

Clarence Samonds, a resident of Clearlake Village, testified that in early September, 1966, the roads in the village had been oiled. When this was done on prior occasions, the roads were sanded, scarified, and rolled to insure that the oil did not accumulate. These steps were not taken in September, 1966, and Samonds testified that oil accumulated on the roads "just like a duck pond.”

Shortly after the oil was applied, Samonds noticed that cars coming from the village onto Route 36 were tracking oil onto the highway. On September 4, 1966, Samonds notified both the Sheriff of Sangamon County, Illinois, and the State of Illinois Bureau of Roads that oil was accumulating on Route 36 and creating a dangerous condition.

Shortly after receiving Samond’s complaint, the Illinois Bureau of Roads dispatched a maintenance crew to the site. The crew scraped the excess oil off of Route 36 and placed several loads of sand over the highway at the intersection with Clearlake Village Road. Raymond Sklenka, the State employee in charge of maintaining Route 36 at the accident site, supervised this maintenance crew. He testified that he observed cars coming from Clearlake Village track oil on the highway. He further testified that his crew subsequently returned to sand the intersection "three to five times,” but he was unable to recall when the intersection was last sanded before the accident.

Sklenka also testified that no warning signs were ever placed near the intersection to warn of a possible accumulation of oil on the highway.

The State is not an insurer of all accidents which occur on a highway. Schunk v. State of Illinois, 25 C.C.R. 209, 213. However, the State does have an obligation to keep its roads in a reasonably safe condition; and the State has a further duty to place adequate signs warning of unusual conditions which motorists may encounter. Breens v. State of Illinois, 21 C.C.R. 83; Miller v. State of Illinois, 22 C.C.R. 68.

Claimant has shown by a preponderance of the evidence, that the State breached its duty to keep Route 36 in a reasonably safe condition and to warn users of the highway of the possible existence of an accumulation of oil. On September 6,1966, immediately after the roads in Clearlake Village were oiled, Clarence Samonds notified the Bureau of Roads that cars were tracking oil onto Route 36 and creating a dangerous condition. A maintenance crew scraped and sanded the road, and later returned to the intersection "three to five times” to deal with subsequent accumulations of oil. It is to be noted that the State employees who sanded the road were unable to state when the sanding occurred.

It is thus clear that the State had actual notice on September 4, 1966, that cars from Clearlake Village were tracking oil onto Route 36 where it was accumulating and causing a dangerous condition. It is equally clear, given the fact that a maintenance crew had to return to the site "three to five times,” that the State knew that this was a recurring condition. Although the State did make efforts to correct the condition, the recurring accumulation of oil at the intersection should reasonably have put the State on notice that its maintenance was ineffective. At the very least the State should have posted warnings alerting motorists of a possible accumulation of oil at the intersection.

This Court finds that the State was negligent in permitting oil to accumulate on Route 36 and in failing to post a warning of its presence. The Court further finds that these omissions proximately caused the damage to Claimant’s tractor-trailer.

The parties have stipulated that the accident resulted in $5,241.57 in damages to Claimant’s tractor-trailer.

Claimant is awarded damages in the amount of $5,241.57.


text:
    (No. 6757
    Janet C. Mc Gill, Claimant, vs. State of Illinois, Respondent.

      Order filed June 10, 1974.

    Price, Cushman, Keck and Mahin, Attorney for Claimant.
    William J. Scott, Attorney General, for Respondent.
   Burks, J.

ORDER GRANTING RESPONDENTS MOTION TO DISMISS

This matter is now before the court for a ruling on respondent’s motion to dismiss [filed April 25, 1974]. Claimant’s objections to said motion [filed on May 9] and respondent’s reply [filed May 20] in support of its motion are also before us. The pertinent information in this record, on which our ruling must be based, is restated by the court as follows:

1. This claim was filed on June 9, 1972, asking damages for personal injuries sustained by the claimant on June 12, 1970, as the result of an automobile accident in a construction zone in Highland Park.

2. Paragraph 7 of the complaint states that a lawsuit "based upon the same occurrence and injuries” was filed by the claimant on November 23, 1970, in the Circuit Court of Lake County, No. 70 L 650, against the City of Highland Park and others, including the gas, light, telephone, and construction companies, but not including the State of Illinois.

3. On October 24, 1973, pursuant to stipulation of the parties, the said Circuit Court action was dismissed with prejudice and the Order entered therein provided "that said dismissal shall be a bar to the bringing of an action based on or including the claim for which this action had been brought”. [A copy of the said order was attached to respondent’s motion, a copy of the stipulation to dismiss was attached to claimant’s objections, but neither party has furnished this court with a copy of the release.]

4. Claimant did not deny respondent’s contention that "Claimant executed a general release to all parties in return for payment of the sum of $4,000.00 in the Lake County Circuit Court action”. However, Claimant disputes respondent’s contention that the said release and dismissal would release or bar her separate action pending in this court, since "the State of Illinois was neither made a party to the Circuit Court action nor named as a principal therein”. Claimant avers, "It is well settled that where an action is compromised by the parties thereto and dismissed by mutual agreement, the dismissal does not bind or affect persons not made parties to the action.”

5. Claimant takes the position that the "City of Highland Park was liable because of negligent acts or omissions committed by the City, its agents or employees”, and that the State of Illinois is also liable because of the same negligent acts or omissions committed by the State, its agents or employees.

6. Claimant argues that she "cannot be held to an election of remedies insofar as either the City of Highland Park or the State of Illinois is concerned, because the Court of Claims Act and the Rules thereunder (1) required claimant to file separate actions against the City and the State and (2) required the instant cause in the Court of Claims to be continued generally until the final disposition of the Circuit Court action against the City”.

7. Respondent argues that the theory of liability urged against the respondent is either (1) that the respondent was a joint tort-feasor with the parties sued in the Circuit Court, or (2) that the parties sued in the Circuit Court were respondent’s agents. Both theories must necessarily fail, respondent states, because claimant’s release of all parties in the Circuit Court bars her action against the State under one of the following rules of law:

(a) Release of one of several joint tort-feasors operates as a release of all; or
(b) Release of an agent extinguishes the principal’s liability where the action is one predicated on respondeat superior.

The court takes notice of one unusual aspect in the pleadings which wa have considered in our ruling on respondent’s motion. We find it significant that the same acts of negligence charged against the City [recited in ¶5 (a) (b) (c) (d) (e) and (f) of claimant’s complaint in the Circuit Court] are restated in identical language as acts of negligence against the State [recited in ¶13 (a) (b) (c) (d) (e) and (f) of claimant’s complaint in this court].

If, as claimant contends, the City and the State were guilty of identical acts of negligence, it seems obvious that the City and the State must be regarded as joint tort-feasors even though they are sued in separate courts pursuant to statutory requirements. The law is well established in this state, as respondent suggests, that the release of one tort-feasor releases all joint tort-feasors. I. L. P. Releases §25. We see no reasonable basis for an exception to this rule simply because the joint tort-feasors were sued in different forums.

Claimant has cited no authority in her suggestions to the court in opposition to the argument in respondent’s motion nor in support of her contention that she "cannot be held to an election of remedies” referred to in ¶6 above. We believe that our conclusion is consistent with the rulings stated in I.L.P. Election of Remedies ¶5, and that respondent’s motion should be granted for the reasons stated above.

It Is Hereby Ordered that respondent’s motion to dismiss is hereby granted and this claim is hereby dismissed.


text:
    (No. 74-CC-33
    Reliable Plumbing & Heating Company, Claimant, vs. State of Illinois, Capital Development Board, Respondent.

      Opinion filed June 13, 1974.

    Reliable Plumbing & Heating Co., Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-93
    Cunningham Movers, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed June 13, 1974.

    Bernard A. Henning & Assoc., Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-300
    Cook County Hospital, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 13, 1974.

    Cook County Hospital, Claimant, pro se.

      William J. Scott, Attorney General; Saul R Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-313
    Standard Oil Division, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed June 13, 1974.

    Standard Oil Division, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-339
    I.M.H. Associates, Ltd., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 13, 1974.

    I.M.H. Associates, Ltd., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-340
    I.M.H. Associates, Ltd., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 13, 1974.

    I.M.H. Associates, Ltd., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-357
    Litton Business Systems, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 13, 1974.

    F. R. Ringle, Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-535
    Alexanders Movers, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed June 13, 1974.

    Alexanders Movers, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-578
    Scherrer Equipment Co., Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed June 13, 1974.

    Scherrer Equipment Co., Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-588
    Standard Photo Supply, A Division of Weiman Co., Inc., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed June 13, 1974.

    Fischel, Kahn, Weinberg & Brusslan, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-654
    Grundy Co. Sheriff’s Dept., Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed June 13, 1974.

    Grundy Co., Sheriff’s Dept., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-657
    Authorized Refrigeration Parts Co., Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed June 13, 1974.

    Authorized Refrigeration Parts Co., Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-661
    Row Motor Sales, Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed June 13, 1974.

    Row Motor Sales, Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-669
    Gulf Oil Corporation, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed June 13, 1974.

    Gulf Oil Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-670
    Gulf Oil Corporation, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed June 13, 1974.

    Gulf Oil Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-676
    Robert F. Vespa, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed June 13, 1974.

    Robert F. Vespa, Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-686
    W. W. Davidson, M.D., S.C., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 13, 1974.

    W. W. Davidson, M.D., S.C., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 7074
    Max Shaps, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed June 13, 1974.

    Max Shaps, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.