text:
    (No. 91-CC-3133
    James W. Lance III and Debbie D. Lance, Claimants, v. The State of Illinois, Respondent.

      Opinion filed December 14, 1999.

    Ripplinger, Dixon & Johnston (George R. Ripplinger, of counsel), for Claimants.
    Jim E. Ryan, Attorney General (Phillip McQuillan, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

The Claimants, James W. Lance III and Debbie Lance, bring this action for compensatoiy damages pursuant to the Illinois Court of Claims Act, 705 ILCS 505/8. Claimant, James W. Lance III (James Lance), asserts that he was injured as a direct and proximate result of negligence committed by agents of the State of Illinois in maintaining an area of pavement along and upon Illinois Route 13 at or near its intersection with Pinckneyville Road near Marissa, Illinois. The Claimant further asserts that the State of Illinois was negligent by erecting a guardrail at the same location so as to constitute a danger to anyone leaving the pavement and striking the guardrail. Claimant, Debbie D. Lance (Debbie Lance) asserts that as a result of the negligence of the State of Illinois in maintaining the pavement and erecting the guardrail, she suffered a loss of consortium and she has become responsible for the medical expenses of her then husband, James Lance.

Statement of Facts

At some time between 10:30 p.m. and 11:20 p.m. on April 17, 1989, Claimant James Lance was operating his Yamaha Maxim 650 motorcycle on Illinois Route 13 in a southerly direction at or near Pinckneyville Road, City of Marissa, County of St. Clair, Illinois. James Lance alleges that as he approached the intersection, he was traveling about 40 m.p.h. and struck a pothole that was located at the edge of the lane of traffic. James Lance then struck a metal guardrail and was thrown over the motorcycle handlebars and landed approximately 30 feet from the guardrail. James Lances motorcycle remained upright after the impact, wedged in the bent guardrail.

A hearing was held before Commissioner Clark on June 9, 1998. At this hearing, the Commissioner heard testimony from Mark Ezra, a mechanical engineer who testified as an expert witness for the Claimants regarding the nature of the alleged potholes and location of the guardrail in causing the injuries to James Lance. Also testifying were the Claimants, James Lance and Debbie Lance. The Commissioner entered into evidence the deposition of Dr. Dale H. Rosenberg, Dr. Rosenberg’s curriculum vitae, deposition of Dr. Henry Hurd, Dr. Hurd’s curriculum vitae, photographs of the alleged potholes and guardrail, police report of the accident for limited purposes, medical bills for James Lance, and a sketch of the accident scene for limited purposes. A departmental report from the Illinois Department of Transportation was filed.

Mark Ezra testified that James Lance struck a pothole causing him to leave the roadway. According to Mr. Ezra, James Lance should have been able to stop the motorcycle and keep it under control without further incident or injury, had it not been for striking the guardrail. Mr. Ezra opined that the guardrail was improperly located in that it was placed perpendicular to the intersection. Mr. Ezra opined that the guardrail should have been placed parallel to the roadway to minimize damages to vehicles and motorcycles leaving the roadway, and that if the guardrail had been parallel to the road, Mr. Lance’s injuries would have been greatly reduced. Upon cross-examination, Mr. Ezra admitted he is not a civil engineer, and he based his conclusions on the laws of physics. Also, Mr. Ezra admitted that he could not cite a standard that exists in any rule, law or statute, that calls for a guardrail to be placed parallel to the area where vehicles may leave the roadway. Further, Mr. Ezra relied upon photographs given to him by Claimants, and the record only indicates that the photographs were taken shortly after the accident. Mr. Ezra did not opine the age of the alleged pothole, nor did he visit the accident site.

James Lance testified that on April 17,1989, he traveled from work to the babysitters house where his young son was being cared for. While traveling from the babysitters house to his house, Mr. Lance stated he was traveling about 40 m.p.h., when he hit a “crater” along and upon Illinois Route 13 at or near its intersection with Pinckneyville Road near Marissa, Illinois. After hitting the crater, Mr. Lance testified he remained upright and struck a guardrail, projecting him over the motorcycles handlebars approximately 30 feet from the guardrail. Mr. Lance further testified as to his injuries as a result of the accident. Mr. Lance was unable to work for over four years and returned to full employment in the summer of 1993. His medical bills totaled $99,409. Upon cross-examination, Mr. Lance admitted that he drove the stretch of road where the accident occurred daily and had traveled the location more than 500 times. Upon objection from Claimant’s attorney, Mr. Lance admitted that he had consumed several beers after work before driving to collect his son.

Debbie Lance testified that she and James Lance were married until 1996 and still live together. She stated that she was fired from her job three weeks after Mr. Lance’s accident due to the time she had to take off to care for Mr. Lance. She stated that she had been earning $350 per week and she was re-employed six months after being fired. Upon cross-examination, she admitted that she passed the accident spot that day and did not recall seeing any potholes in the pavement.

The Claimants rested their case on June 9, 1998. On August 3, 1998, Claimants filed a motion to bar the Respondents expert witness, Dr. Daniel Brown, from testifying. On September 3, Respondents responded to the motion to bar the testimony of Dr. Daniel Brown. According to the February 27, 1998, expert witness disclosure, Dr. Brown was to testify as to “Claimant’s alcohol consumption at the time of the accident.” Also on September 3, 1998, Respondents filed a motion for leave to file an amended answer with affirmative defenses, alleging that Mr. Lance’s own conduct was the proximate cause of the accident on April 17, 1989. The motion alleged that Mr. Lance failed to keep a proper lookout on the roadway, failed to apply the brakes of his motorcycle, and was operating the motorcycle while under the influence of alcohol.

A second hearing was held on October 28, 1998. At this hearing, over the objection of the Claimants, the Commissioner heard testimony from Dr. Daniel Brown, an expert witness for the Respondent who is a forensic toxicologist. Again, over objection from Claimants, the Commissioner entered into evidence Dr. Brown’s curriculum vitae and an opinion letter from Dr. Brown to the State of Illinois. The Commissioner also allowed the amended answer to be filed.

Dr. Brown testified that Mr. Lance had a serum blood alcohol concentration of 0.101 at the time of the accident. Dr. Brown arrived at this conclusion by considering the time interval between the time of the accident (11:12 p.m.) and the serum blood alcohol test at 3:30 a.m. (0.043). Then, Dr. Brown determined from the scientific literature the amount of" time alcohol takes to metabolize to reach the 0.043 level. Accordingly, Dr. Brown testified that Mr. Lance had at least five 12-ounce domestic beers, or about five ounces of 100-proof liquor. Mr. Brown further testified that if Mr. Lance had only had two 12-ounce beers before the accident, his blood alcohol concentration would have been zero.

The State of Illinois rested its case on October 28, 1998. The State of Illinois filed a motion for a directed finding after October 28, 1998, and the Claimants responded to the motion on January 8,1999.

The Law

Several issues were raised in both hearings held before the Commissioner such as the admissibility of Dr. Daniel Browns testimony on James Lances alcohol consumption on the day of the accident, the affirmative defenses in the amended complaint, and the motion for a directed finding at the conclusion of the October 28, 1998 hearing. However, even if all of these issues raised fall in favor of the Claimants, the Claimants have failed to prove by a preponderance of the evidence that the State of Illinois had actual or constructive notice of the alleged pothole.

The State of Illinois is not an insurer of the conditions of the highways under its control, but it does have a duty to the public to use reasonable care in maintaining its roadways. (Preikshat v. State (1985), 37 Ill. Ct. Cl. 29.) Accordingly, for the Claimants to prevail, they must prove that the State of Illinois had breached that duty of reasonable care, and that the breach of that duty was the proximate cause of injury to the Claimant. (N.W. v. Amalgamated Trust and Savings Bank (1990), 196 Ill. App. 3d 1066, 554 N.E.2d 629, 663, 143 Ill. Dec. 694.) Further, in order for the Claimants to recover, they must prove by a preponderance of the evidence that the State had actual or constructive notice of the dangerous condition on the roadway. Feldman v. State (1984), 36 Ill. Ct. Cl. 158.

The State does have a duty to maintain its roadways and highways in a reasonably safe condition, and a Claimant must prove by a preponderance of the evidence that there was a breach of that duty. (Preikshat v. State (1985), 37 Ill. Ct. Cl. 29.) Here the parties do not dispute that the State had a duty to maintain the roads and highways in a reasonably safe condition. However, the parties disagree on whether there was a breach of that duty.

To prevail, the Claimants must prove by a preponderance of the evidence that the State had actual or constructive notice of the dangerous condition on the roadway. (Feldman v. State (1984), 36 Ill. Ct. Cl. 158.) The mere fact that a defective condition existed is not, by itself, sufficient to constitute an act of negligence on the part of the State. Cotner v. State (1989), 40 Ill. Ct. Cl. 70.

The Claimant introduced photographs of the roadway that were taken after the accident; however, neither the pleadings or the record contain any exact date indicating when these photographs were taken. The closest approximation of the date on which the photographs were taken is a month after the accident. Also, the Claimants expert, Mark Ezra, did not offer any opinion as to how long the alleged pothole had been on the roadway or whether the State should have been aware of the potholes on the roadway. Lastly, although the State did not mention the Illinois Department of Transportation departmental report at hearing, the report reveals that the State had no actual or constructive knowledge of the alleged potholes on the portion of the roadway in question.

The Claimants also alleged that James Lances injuries were a direct and proximate result of the placement of the guardrail just off the roadway. To prevail, the Claimants must prove by a preponderance of the evidence that the State was negligent in the design or maintenance of the guardrail, that the State knew or should have known of the dangerous condition, and that failure to implement stricter standards or otherwise maintain the guardrail was a proximate cause of the Claimants injuries. (Evans v. State (1988), 40 Ill. Ct. Cl. 140; Kramer v. State (1990), 42 Ill. Ct. Cl. 23.) The Claimants’ expert, Mark Ezra, testified that he could not find any rules, laws, or statutes of any state to indicate the guardrail was not properly installed. The Claimants’ expert has no experience in roadway design, construction or maintenance.

The State amended its answer to add affirmative defenses that James Lance’s own actions were the proximate cause of his injuries. The Claimants contend these affirmative defenses were untimely and should be barred from consideration. Also, the Claimants argued that the testimony of Dr. Daniel Brown should be barred, as the disclosure by the State on what Dr. Brown would testify about was inadequate. A court has broad discretion to allow the addition of new defenses on just and reasonable terms at any time before final judgment so long as other parties do not sustain undue prejudice or surprise. (735 ILCS 5/2 — 616.) The Illinois Supreme Court upheld a trial court’s decision to allow a physician to amend his answer late in the trial to include an affirmative defense of contributory negligence. (Hobart v. Shin (1999), 705 N.E.2d 907, 235 Ill. Dec. 724,185 Ill. 2d 283.) The Court noted that the issue of the Claimant’s responsibility was sufficiently prominent in the pleadings and discovery to allow the plaintiff ample opportunity to rebut a defense of contributory negligence. Id.

Here, the pleadings and discovery are sufficient to put the Claimants on notice that the issue of James Lance’s own responsibility may be raised in trial. Further, the State adequately disclosed that Dr. Daniel Brown would testify as to James Lance’s alcohol consumption on the date of the accident, and this disclosure was sufficient to apprise the Claimants that the issue of alcohol consumption and intoxication would be raised at the trial. In brief, the Commissioner recommended that the Claimants were adequately informed of the nature of the affirmative defense to allow the Claimants to conduct discovery and rebut the defense at trial, and we affirm his decision.

We do not consider the issue of the affirmative defenses in the State’s amended answer or the issue of Dr. Brown’s testimony as dispositive of this case, as the Claimants have not proved that the State was on notice of a dangerous condition on the roadway. Regardless, section 2 — 1116 of the Code of Civil Procedure provides that a plaintiff whose contributory negligence is more than 50 percent of the proximate cause of the injury or damage for which recovery is sought shall be barred from recovering any damages. (735 ILCS 5/2 — 1116.) Based upon the testimony of Dr. Brown concerning the amount of alcohol consumed by James Lance prior to the accident and the fact that James Lance had driven the roadway at least four times on the day of the accident, it is the opinion of the Court that James Lance was more than 50 percent responsible for his own injuries in failing to exercise reasonable caution and care for his own safety.

It is hereby ordered that Claimants’ claims are denied and dismissed with prejudice.


source: Caselaw Access Project

author: Frederick, J. Frederick, J. Frederick, J.

license: Public Domain

text:
    (No. 91-CC-3407
    Schuepfer Plumbing Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed May 7, 1997.

      Order on rehearing filed March 30, 1998.

      Order filed August 31, 1999.

    Law Offices of Anthony G. Suizzo (Anthony Kiselis, of counsel), for Claimant.
    Jim E. Ryan, Attorney General (Edward C. Seward III, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Frederick, J.

This cause comes before the Court on Claimant’s motion for summary judgment and Respondent’s cross-motion for summary judgment, and the Court having reviewed all of the pleadings and exhibits, heard the arguments of counsel, and the Court being fully advised in the premises, wherefore, the Court finds:

Claimant filed its verified complaint in the Court of Claims on May 21, 1991. After a motion to dismiss was denied, the parties engaged in considerable discovery. The parties then filed cross-motions for summary judgment which are now before the Court. The parties both argue that there are no genuine issues as to any material issue of fact and that each is entitled to a judgment as a matter of law.

The undisputed facts are that on April 23,1987, W. G. James, Inc. and the Capitol Development Board entered into CDB Contract No. 87-0929-81 for CDB Project No. 810-032-009 for the William Rainey Harper College Corrective Rehabilitation, phases I and II. Thereafter, W. G. James, Inc. and Claimant, Scheupfer Plumbing, Inc., entered into an oral subcontract whereby Claimant agreed to furnish W. G. James, Inc. with labor, materials, tools, and equipment required to perform a portion of the work on this project. Claimant did furnish labor, materials, tools, and equipment pursuant to its oral contract. Claimant had no contract with the Respondent, State of Illinois. Claimant did not receive payment for a part of the labor, materials, tools, and equipment which it provided in the sum of $46,902.50. There is no dispute that Claimant provided such services, nor any dispute as to the amount owed Claimant.

On May 31, 1989, Claimant filed a public hen notice and bond claim with the State of Illinois. Thereafter, Claimant filed a complaint to foreclose its mechanics lien against W. G. James, Inc. in circuit court. W. G. James, Inc. prevailed in state court on the grounds that Claimant failed to file suit on its public lien within 90 days of the filing of notice and failed to file suit on the bond claim notice within 180 days from the date the bond claim notice was filed, as provided by statute.

Claimant argues that it is a third party beneficiary of the States contract with W. G. James, Inc. It is Claimants position that the prime contract required W. G. James to provide a labor and material payment bond to guarantee that subcontractors would be paid for the services and materials supplied for the project. This bond was required by 30 ILCS 550 — 1, et seq. Claimant believes this bond requirement was for the direct benefit of subcontractors and makes Claimant a third party beneficiary under the contract.

Claimant filed this action against the State of Illinois as a contract claim, a third party beneficiary claim, and a lien claim. We find there was no contract between Claimant and Respondent and Claimant cannot prevail on a direct contract claim.

A subcontractor cannot generally proceed against the State outside the Mechanics Lien Act in the absence of an allegation that the subcontractor is a third-party beneficiary under the proposed contract. If a contract is entered into for the direct benefit of a third party, not a party thereto, such person may sue for breach of the contract if the benefit to him is direct, but if the benefit to him arising from the contract is only incidental, he has no right to recovery. (First National Bank of Springfield v. State (1990), 43 Ill. Ct. Cl. 1.) One issue before the Court is, therefore, whether Claimant is a third party beneficiary of the prime contract. The Court must also consider whether Claimant has failed to comply with the filing provisions of the Mechanics Lien Act. This Court will strictly construe the provisions of the Mechanics Lien Act. KSM Sheet Metal Co. v. State (1986), 39 Ill. Ct. Cl. 41.

Respondents cross-motion for summary judgment contends that Claimant has no standing to sue because there is no contractual relationship between Claimant and the State of Illinois. (McNeil Asphalt Co. v. State (1984), 37 Ill. Ct. Cl. 68); that Claimant is not a third party beneficiary; that Claimants claim is barred by the doctrine of res judicata; that Claimant has failed to exhaust its remedies against W. G. James, Inc. by failing to file its mechanics lien in a timely fashion; and that the claim is barred by the Illinois Purchasing Act, 30 ILCS 505/ef seq., because the subcontract was oral and not in writing.

As previously stated, we find that Claimant cannot prevail on a direct contract claim. (County Sales & Supply Co. v. State (1986), 38 Ill. Ct. Cl. 73.) Claimants mechanics lien and bond claim must also fail. Claimant failed to notify the director of CDB of the filing of its verified complaint within 90 days of giving notice of its public hen. Claimant did not serve the CDB with its verified complaint until June 16,1989. Claimant failed to file verified notice of its bond claim with the CDB within 180 days after the date of the last item of work or the furnishing of the last materials. The last day Claimant provided any labor, material or supplies and services in connection with this claim was January 21, 1988. Claimant, therefore, had until July 20, 1988, to file its verified notice of bond claim with the CDB. In violation of the statutory provisions, Claimant did not serve its verified bond claim notice with CDB until April 23,1989.

Claimant’s mechanics hen claim against W. G. James, Inc. was the subject of a summary judgment motion in state court. W. G. James prevailed on the basis that Claimant failed to timely file its statutory notice and to timely file its complaint. This is a failure to exhaust remedies and this claim must be denied in the Court of Claims, (section 790.60 of the Court of Claims Regulations, 705 ILCS 505/25.) Failure to comply with the provisions of section 790.60 shall be grounds for dismissal. See section 790.90 of the Court of Claims Regulations (740 Adm. Code 790.90). Welsh v. State (1994), 46 Ill. Ct. Cl. 420.

Therefore, Claimants only possible source for recovery is pursuant to a third party beneficiary claim in the event we were to find that Claimants failure to timely perfect its mechanics hen remedy against W. G. James, Inc. does not bar this claim for failure to exhaust remedies. We will address that issue later in this order.

The Claimant has no privity of contract with the Respondent and the Claimant has failed to properly sue W. G. James, Inc. with whom they have privity of contract. Because there is no privity of contract with the State and because this Court will only imply a contract in very limited emergency situations, the Claimant seeks to recover against the State of Illinois as a third party beneficiary. This is not an emergency situation where this Court would consider finding an implied contract. There is no other basis upon which Claimant could recover on its claim before this Court.

Therefore, the only way the Claimant could possibly recover is if Claimant is found to be a third party beneficiary of the agreement between the State of Illinois and W. G. James, Inc., which was a public contract. Under Illinois law, there is a strong presumption against creating rights in a third party beneficiary. (Midwest Concrete Products Co. v. LaSalle National Bank (1981), 94 Ill. App. 3d 394.) To overcome this presumption, the intent to benefit a third party must affirmatively appear from the language of the instrument and the circumstances surrounding the parties at the time of its execution. (Bates & Rogers Construction Corp. v. Greeley & Hansen (1985), 109 Ill. 2d 225.) The Court in Bates & Rogers, supra, stated:

“Only third parties who are direct beneficiaries have rights under a contract. It is not enough that the third party will reap incidental benefits from the contract. The test is whether the benefit to the third person is direct to him or is but an incidental benefit to him arising from the contract. A third party is a direct beneficiary when the contracting parties have manifested an intent to confer a benefit upon the third party.
With respect to construction contracts this court has held that it is not enough that the parties to the contract know, expect or intend that others will benefit from the construction of the building in that they will be users of it. The contract must be undertaken for the plaintiff s direct benefit and the contract itself must affirmatively make this intention clear.” 155 Harbor Drive Condominium Ass’n v. Harbor Point, Inc. (1991), 209 Ill. App. 3d 631; Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44; Brighton Building Maintenance Co. v. State (1982), 36 Ill. Ct. Cl. 36.

The Claimant argues that the bond provisions and payment provisions of the prime contract make Claimant a direct and intended beneficiary of the contract. We disagree. The bond provision is an incidental benefit. The State would not even be hable if the State failed to obtain the bond. Stratford Homes v. State (1984), 37 Ill. Ct. Cl. 190.

The other benefits cited by Claimant are incidental benefits. The cited provisions involve hen waivers. This Court has found that even payment provisions are incidental.

In Ables v. United States (1983), 2 Ct. Cl. 494, aff'd. (1984), 732 F. 2d 166, the United States Court of Claims concluded that a provision requiring payment to a third party did not create third party beneficiary rights in that third party.

The contract at issue in Abies was an arbitration agreement between the Air Force and a labor union, and the Claimant was an arbitrator who performed services for the parties. The Claimant sought recovery based upon a provision in the arbitration agreement that stated, "Each party shall pay the costs and expenses of the [arbitrator] they [sic] select. The parties shall share equally the costs and expenses of the neutral member.” (2 Ct. Cl. at 500.) The Court ruled that the payment provision did not create a third party beneficiary relationship, reasoning that the agreement contemplated that payment would emanate from separate agreements between the parties and the arbitrator.

We find there are no material issues of fact. The Claimant is not a third party beneficiary of the contract between the State of Illinois and W. G. James, Inc. We also find that Respondent has not waived the exhaustion of remedies requirement of sections 790.60 and 790.90 of the Court of Claims Regulations. The cause has not reached the trial stage.

While we recognize that the State has received a benefit from a subcontractors work, materials, tools and equipment on the Harper project, there is a long line of cases which hold that our jurisdiction does not encompass quantum meruit. The result in this case is not harsh because Claimant had a mechanics lien claim and bond claim against W. G. James, Inc. which it failed to properly pursue. This Court cannot adjust the facts to try to pay a subcontractor, as this Court must follow the law. Brighton Building Maintenance Co. v. State (1982), 36 Ill. Ct. Cl. 36.

Based on the foregoing, it is the order of the Court:

A. That Claimants motion for summary judgment is denied.

B. That Respondents motion for summary judgment is granted.

C. That judgment is entered in favor of Respondent and against Claimant on Claimants complaint.

D. That Claimants claim is denied with prejudice.

ORDER ON REHEARING

Frederick, J.

This cause comes before the Court on Claimants petition for rehearing, and the Court having reviewed the evidence, the pleadings, the Courts opinion, and the Court having heard the arguments of counsel, and the Court being fully advised in the premises, wherefore, the Court finds:

On May 7, 1997, this Court entered an order denying Claimants motion for summary judgment and granting Respondents motion for summary judgment. This Court found that Claimant was not a third party beneficiary. The Court indicated there is a strong presumption against creating rights in a third party. The Court adopted the law that the interest to benefit a third party must affirmatively appear from the language of the instrument and the circumstances surrounding the parties at the time of the execution of the contract.

The Claimant has cited our case, First National Bank of Springfield v. State (1990), 43 Ill. Ct. Cl. 1, in support of its position. The First National Bank of Springfield, supra, decision seems to indicate that a clause in a State contract requiring the architect to review all payments to the contractor and requiring lien waivers creates a third party beneficiary status to all subcontractors. This is clearly not the law as lien waivers are intended to protect the landowner and have only an incidental benefit to the subcontractors. Such hen waiver clauses are common in most building contracts and would make subcontractors third party beneficiaries in most cases. This is completely contrary to the law which disfavors third party beneficiaiy status to subcontractors.

To the extent that the clause in First National Bank of Springfield, supra, at page 10, was found to create a third party beneficiary status in a subcontractor, we expressly overrule First National Bank of Springfield v. State (1990), 43 Ill. Ct. Cl. 1. As Claimant may have relied on First National Bank of Springfield, supra, in its dealings with the contractor and the State, our overruling of that case is prospective only.

We are persuaded by Claimant’s arguments that under the prior law, Claimant would have been a third party beneficiaiy. We, therefore, reconsider our prior order and vacate the order of May 7, 1997. We find that Claimant performed the work claimed and, as a third party beneficiary as determined pursuant to our prior, and now overruled, decision, is entitled to a judgment as a matter of law in the amount of $46,902.50. We, therefore, deny Respondent’s motion for summary judgment and grant Claimant’s motion for summary judgment.

The matter of payment remains to be determined.

It is therefore ordered:

A. That the Court’s order of May 7,1997, is vacated.

B. That summary judgment is granted in favor of Claimant and against Respondent.

C. That Respondent’s motion for summary judgment is denied.

D. That within 30 days, Respondent shall file with the Court a statement indicating the following:

(1) Whether the State has retainage of $46,902.50 available from this contract with which it could pay Claimant in full;

(2) That if there is not $46,902.50 available to pay Claimant in full, the amount of monies that lapsed under this contract or which could be transferred from another line item which lapsed which could be used to pay this claim;

(3) That upon receipt of the information required by paragraph D hereof, the Court will entet an order regarding payment of this claim.

ORDER

Frederick, J.

This cause comes on to be heard following the parties’ responses to the order entered herein on January 11, 1999.

The Court finds that the Capitol Development Board has access to sufficient funds to pay the award herein.

It is hereby ordered that the Capitol Development Board pay the claim, in care of Claimants counsel, the sum of $46,902.50.


author: Mitchell, J.

text:
    (No. 92-CC-0333, 92-CC-0334, cons.
    William Scivally and Judy Thompson, Claimants, v. The State of Illinois, Respondent.

      Order filed May 9, 2000.

    Vella, Sparkman & Altamore, P.C. (James D. Spark-man, of counsel), for Claimants.
    Jim E. Ryan, Attorney General (Tomas A. Ramirez, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

Mark Scivally, age 13, and Jonathan Jackson, age 14, died on August 24, 1989, in the City of Rockford. They had been swimming in a drainage ditch under the Kishwaukee Street Rridge which had a substructure with a box culvert on the west side and piers on the east side. Present with them before they drowned was Jonathans brother, Raymond Jackson. Mark Scivally and Raymond Jackson were best of friends.

The bridge in question is one of 112 bridges located in the City of Rockford. Located under the bridge is a box culvert through which water runs from a concrete drainage ditch from east to west. The drainage ditch ends underneath the bridge. When there was rainfall or melting of snow, the water flowing from the drainage ditch would increase. Through the testimony of the young men who had utilized this area as a swimming and fishing hole, it is apparent that the flow from the box culvert into the ditch created enough force so that scouring occurred underneath the box culvert. Scour is defined as the movement of the riverbed as a result of the pressures of the water flow. In this case, a hole existed underneath the concrete box culvert large enough for children to swim into the hole and reach a point where the height of the concrete increased. There was an air pocket under the concrete and children would utilize the air pocket location as a hiding place. There is evidence in the record that this air pocket existed as early as the mid-1960s. The existence of this hole was known to many of the children of the neighborhood and was passed down from one age group to the next. There is even evidence that adults knew about the hole because they had utilized the stream area for swimming. On the date of the incident, Raymond Jackson and his best friend, Mark Scivally, were dropped off at the bridge area by Raymond’s grandfather. It had been their intention to go fishing under the bridge. Raymond described this area as their playground, a place they went to often. Raymond’s older brother, Jonathan, arrived separately and he convinced Mark to go swimming with him. Raymond thought the water was too cold for swimming and continued fishing. Raymond saw Mark and Jonathan disappear into the water at the location which leads to the air pocket as he continued to fish. Two other boys arrived, he talked to them for awhile, and when they left, 15 to 30 minutes had gone by, and his brother and his best friend were still under the concrete. Becoming a little concerned, Raymond approached the area on the box culvert from which he could stand over the entrance to the air pocket and he noticed two legs floating. He touched the legs and realized that something had gone wrong. He ran to the closest commercial establishment and from there paramedics and police were called. The bodies of the two boys were found by the officials who responded, Mark partially out of the entrance-way to the pocket of air and Jonathan still inside. Mark was pronounced dead at the scene and Jonathan died the next day. Raymond Jackson described the distance one had to swim underwater in order to reach the air pocket as only a couple of feet. He did not understand how his brother and friend had died, and there is no indication in the record of exactly what happened to the two boys once they went under the water. Raymond described the air pocket as being in the exact same condition when he saw it weeks earlier.

The intended use of the bridge and box culvert in question was for the transportation of traffic, not to aid in recreational purposes for the people of the area. Incidental to the construction of the box culvert, the process of scour had constructed a hole in the river which was discovered by the children in the neighborhood. This hole turned into a deadly trap for the children of the Claimants in August of 1989, but the State had no knowledge of the existence of this hole, whether it is considered a defect or not, since scour is a natural process in a body of water that is flowing. It must be remembered that the inspections conducted by the State were carried out so that the traffic on the bridge would not be compromised. The State employees who testified had responsibility for the bridge, not the stream below the bridge. There was no evidence that the State was aware that the drainage channel in question was being used as a swimming facility by the children in the neighborhood, a fact which is confirmed by that same lack of notice to the parents in the neighborhood. A danger which is as well concealed as this scour hole was, could not be seen during the periodic inspections by the State employees. There is no legal duty upon the State to remove every possible source of injury from areas in the more remote proximity of the State-controlled property. A legal duty requires more than the possibility of an occurrence. The State is charged with a duty only when the harm is foreseeable. (Powell v. State (1996), 48 Ill. Ct. Cl. 111.) In this scenario, the State exercised reasonable care in the maintenance and inspection of the bridge and box culvert. That the inspections did not detect the scour is not proof of negligence. Claimants are unable to produce evidence that the State had actual or constructive knowledge of the condition which resulted in the deaths of these children.

Therefore, the claims are denied.


author: Jann, J. JANN, J.

text:
    (No. 92-CC-2777
    Ronald E. Paul, Individually and Executor of the Estate of Mary Joann Paul and Administrator of the Estate of Sheryl J. Paul, and Ronald G. Buban, Administrator of the Estate of Kevin R. Buban, Claimants, v. Illinois Department of Transportation, Respondent.

      Order filed August 30, 1999.

      Order on motion to reconsider filed December 10, 1999.

    Phelps, Kasten, Ruyle, Burns, Carmody & Sims (Byron J. Sims, of counsel), for Claimants.
    Jim E. Ryan, Attorney General (Guy A. Studaen, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Jann, J.

This cause comes on to be heard on Respondents motion for summary judgment and Claimants reply in opposition thereto. Both parties have submitted memoranda of law in support of their positions.

I. Facts

This case arises from an auto accident which occurred on Sunday April 14, 1991, at approximately 12:03 a.m., at the intersection of Illinois 159 and Renken Road (Prairietown Road), township of Monro, unincorporated Madison County, Illinois.

Decedents, Maiy Joann Paul, Sheryl J. Paul and Kevin R. Buban were passengers in a car driven by Claimant Ronald E. Paul. Ronald Paul (herein Paul) suffered personal injuries and the decedents died after a collision between the car driven by Paul and a car driven by Joseph E. Sheppard (herein Sheppard). Pauls car was traveling northbound in the northbound lane of Illinois 159 at the intersection of the westbound lane of Renken Road. Sheppard’s car was traveling east to west and pulled out in front of Paul's car, striking Paul’s car on the right passenger side.

There are two stop signs on Renken Road for the westbound traffic at the intersection. One sign is on the northeast corner of the intersection and the other is placed on the southeast comer of the intersection. Additionally, there is a “stop ahead” sign seven hundred feet east of the stop signs on Renken Road. At the time of the accident, all the signs were in place and were clearly visible to the westbound traffic.

Sheppard was driving while intoxicated at the time of his accident. The Alton Memorial Hospital records show that Mr. Sheppard arrived at the hospital at 1:33 a.m. on April 14, 1991. Mr. Sheppard submitted to a forensic blood test at 2:24 a.m. on April 14, 1991. His blood alcohol concentration was .156 percent ethanol g/dl, and his blood contained .5 percent Diazepam (Valium) and .8 percent Nordiazepam.

On October 31, 1991, Sheppard pled guilty to three counts of reckless homicide and one count of driving a vehicle while under the influence of alcohol, admitting that he disobeyed the stop sign at a time when the alcohol concentration in his blood was more than 0.10 percent. Sheppard was sentenced to a term of ten years on the reckless homicide counts and a term of three years on the driving while under the influence count.

Claimants, Ronald E. Paul, the husband of Mary Joann Paul and the father of Sheryl J. Paul, and Ronald G. Buban, administrator of the estate of Kevin R. Buban and father of Kevin R. Buban, allege that the Illinois Department of Transportation (herein IDOT) was negligent in the following ways:

a. IDOT failed to equip Renken Road at or near its intersection with Illinois 159 as to traffic approaching from the east to the west with a flashing red stop signal.

b. IDOT failed to equip Renken Road at or near its intersection with Illinois 159 as to traffic approaching from east to west with a stop bar on the pavement, an appropriate distance east of the intersection and in a manner designed to apprise approaching traffic of an upcoming intersection and stop sign.

c. IDOT failed to equip Renken Road at or near its intersection with Illinois 159 as to traffic approaching from east to west with dual mounted 48-inch stop signs.

d. IDOT failed to equip Renken Road at or near its intersection with Illinois 159 as to traffic approaching from east to west with rumble strips on the pavement, a sufficient distance east of the stop sign in a manner deigned to apprise approaching traffic of an upcoming intersection and stop sign.

Claimants’ allegations of negligence rely upon the opinion, testimony and reports of Kenneth R. Agent, a registered civil engineer in the state of Kentucky. Mr. Agent’s deposition, reports and curriculum vitae are made a part of Claimants’ memorandum.

II. Proximate Cause

Respondent asserts that the sole proximate cause of the accident at issue was the negligence of Sheppard in driving under the influence and subsequently failing to stop and yield to Claimants’ vehicle as required. No conduct of Respondent proximately caused the accident and Respondent asserts it is entitled to summary judgment as a matter of law.

Claimants argue that the accident history of the intersection put the State on notice that the signage was inadequate, and its failure to take additional measures to alert drivers of the stop sign constituted negligence. Said negligence is alleged to be a proximate cause of the injuries and deaths of the Claimants, in addition to Sheppards actions. No direct proof was offered as to breach of IDOT standards.

III. The Law

It is well settled that there may be more than one proximate cause of an injury. A defendant may be held liable even if his negligence is not the sole proximate cause of injury so long as his conduct contributed in whole or in part to the injuries. (Kuhn Redi-Mix v. State (1995), 45 Ill. Ct. Cl. 33, citing Smith v. State (1989), 42 Ill. Ct. Cl. 19 which adopted the definition in Illinois Pattern Jury Instruction 15.01.) The negligence of a defendant will not constitute a proximate cause of plaintiffs injuries, however, if some intervening act supercedes the defendants negligence, but if the defendant could reasonably foresee the intervening act, that act will not relieve the defendant of liability (Indicoffer v. Village of Wadsworth (1996), 282 Ill. App. 3d 933, 219 Ill. Dec. 674, 671 N.W.2d 1127.) Claimants have cited several cases for the proposition that criminal acts of a defendant do not break the causal claim where said acts are foreseeable by a third party defendant. None of these cases are directly on point to the facts of this case but point to foreseeability as a key element in determining proximate cause.

Respondent admits that proximate cause may be proved inferentially or by circumstantial evidence. However, when a party seeks to rely upon circumstantial evidence, the conclusion sought must be more than speculative; it must be the only probable conclusion which may be drawn from the known facts. Hernandez v. Chicago Transit Authority (1st Dist. March 30, 1999), No. 1-98-2911, 1999 Ill. App. Lexis 185 at 29, citing Stojkovich v. Monadnock Building (1996), 281 Ill. App. 3d 733, 739, 666 N.E.2d 704, 708.

Blood alcohol testing is recognized as a proper means of proving intoxication in personal injury actions. (Burris v. Madison County (1987), 154 Ill. App. 3d 95, 101, 493 N.E.2d 1267, 1270; Thomas v. Brandt (1986), 144 Ill. App. 3d 95, 101, 493 N.E.2d 1142.) Additionally, section 501.2(b) of the Illinois Vehicle Code provides that:

“Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of alcohol, the concentration of alcohol in the person’s blood or breath at the time alleged or shown by analysis of the person’s blood, urine, breath, or other bodily substance shall give rise to the following presumptions:
# # 6
3. If there was at the time an alcohol concentration of 0.10 or more, it shall be presumed that the person was under the influence of alcohol.” 625 ILCS 5/ll-501.2(b); see also Hambrick v. State (1995), 48 Ill. Ct. Cl. 57.

It is uncontroverted that Sheppards blood alcohol content shortly after the accident was 0.156 percent, giving rise to the presumption that Sheppard was under the influence of alcohol. Furthermore, Sheppard admitted his blood alcohol level exceeded the legal limit and that he disobeyed the stop sign. Sheppard, as a driver on the Illinois roads had a duty to abide by the Illinois Vehicle Code. Sheppard violated this duty and, therefore, was negligent as a matter of law. Wanner v. Kenna (1974), 22 Ill. App. 3d 930, 934, 317 N.E.2d 114.

Illinois courts have long dealt with the question of proximate cause of accidents. In DeBenedetto v. Flora Township (1992), 153 Ill. 2d 66, 605 N.E.2d 571, a driver lost control of his car, crossed over the oncoming lane, crossed over the shoulder, and landed in a drainage ditch. The trial court granted defendants motion to dismiss for failure to state a cause of action. The Supreme Court agreed stating, “the proximate cause of the accident in this case was not the ditch. The proximate cause of the accident was the loss of control of the vehicle and its being driven off the traveled way.” (DeBenedetto, 605 N.E.2d at 573.) Similar to the instant case, the proximate cause of this accident and the resulting injuries and deaths was Sheppards failure to yield, due to his intoxicated condition, to Paul’s car.

In Thompson v. County of Cook (1993), 154 Ill. 2d 374, 609 N.E.2d 290, a seminal case on proximate cause and intoxicated drivers, the family of a passenger who was killed when the car driven by an intoxicated driver went off the highway sought to recover from Cook County. The decedents family alleged that the county was negligent because the highway lacked proper warning signs. (Thompson, 609 N.E.2d at 292.) The Supreme Court affirmed the Appellate Courts vacation of a jury verdict for the plaintiff and the granting of judgment as a matter of law for the defendant. (Id.) The Supreme Court observed that the driver of the car had admitted that he was driving under the m£k ce of alcohol and drove at an excessive rate of speed. (Id. at 293-294.) The Thompson Court held that the allegedly defective road may have provided a condition for the accident, but it was not the cause of the accident. (Id.) The Court concluded that the drivers actions in driving drunk, speeding, eluding the police and disregarding the traffic signs were the sole proximate cause of this accident and the road provided nothing more than a location where the drivers negligence came to fruition. Id. at 294.

In Billman v. Frenzel Construction Company (1993), 262 Ill. App. 3d 681, 635 N.E.2d 435, an intersection and signage defect case, the Appellate Court affirmed the granting of summaiy judgment in defendants favor. (Billman, 262 Ill. App. 3d at 689.) The Billman Court determined that, since it was undisputed that the driver that struck the decedent was driving under the influence at the time of the accident, such negligent driving broke the chain of causation between alleged defects in the intersection and the resulting injuries. (Id. at 687.) The Court reasoned that, if the duty of the defendant was based on a lack of, or defect in, signage, the plaintiff must offer some evidence that the intoxicated driver was confused by the signage (or lack thereof). (Id.) The Court concluded that where neither scenario (intoxication or defect in signage) could be inferred with a degree of certainty, and speculation would be required, causation cannot be a triable issue of fact and summary judgment is proper. Id.

Respondent argues that, as in the Billman case, causation in the case at bar is a question of law, not fact, and summary judgment is proper. Sheppard s intoxicated driving broke any chain of causation between any alleged defects in the intersection and the resulting injuries. Thus, as a matter of law, Claimants cannot show signage defects were the proximate cause of this accident without resorting to speculation and conjecture. Moreover, as Claimants’ theory of negligence is based on signage defects, Claimants would need to offer some evidence that Sheppard was confused by the signage. The only fact disputed in the record is whether Sheppard stopped, rolled through or traveled consistently through the stop sign. Sheppard initially claimed he stopped and then began to make a left-hand turn, but ultimately admitted he disobeyed the stop sign. Sheppard’s son, Nathan Sheppard, also claimed his father stopped at the stop sign. Eyewitness Gregory Harkey stated Sheppard rolled up to the stop sign, stopped briefly and then pulled out and struck Paul’s car. Eyewitness Michael Maxfield stated Sheppard ran through the stop sign. Despite these differing accounts, there is still nothing in the record to suggest that Sheppard was confused by the signage. To the contrary, Sheppard at first claimed he stopped at the stop sign prior to attempting a left turn, but then admitted he disobeyed the stop sign.

Claimants rely upon Mr. Agents opinions that the enlargement of stop signs and addition of flashing beacons, a rumble strip and an additional “stop ahead” sign would have reduced the likelihood of the occurrence leading to Claimants’ injuries. Careful review of Mr. Agent’s deposition and reports does not support such a finding by the Court. In fact, Mr. Agent was unable to provide direct evidence of any breach of duty by Respondent as to the signage at the intersection in question or proof that the accident history required immediate action pursuant to IDOT regulations.

We find that, there being no evidence that Sheppard was confused by the signage, nor of a breach of IDOT practice and procedure, Claimants may not, as a matter of law, prevail on the question of proximate cause. As a matter of law, the proximate cause of Claimants’ tragic injuries was Sheppard’s negligence.

It is hereby ordered that Respondent’s motion for summary judgment is granted and this cause is dismissed.

ORDER

JANN, J.

This cause comes on for hearing on Claimants’ motion to reconsider and Respondent’s response thereto, and this Court being fully advised in the premises.

We hereby find:

Claimants’ arguments were carefully considered in our prior analysis of the motion for summary judgment. We find no basis for reconsideration and must deny this petition.


text:
    (No. 93-CC-0572
    Esterlener Stimage, Claimant, v. Illinois Department of Public Aid, Respondent.

      Order filed December 14, 1999.

    Sachs, Earnest & Assoc., Ltd. (Gary Nahm, of counsel), for Claimant.
    Jim E. Ryan, Attorney General (Elizabeth M. Scarno, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

This matter comes before this Court on the complaint of Claimant, Esterlener Stimage, against the Respondent, State of Illinois, Department of Public Aid. The complaint alleges Respondents negligence and seeks an award in the amount of $15,000.

On February 25, 1992, at about 8:00 a.m., Esterlener Stimage, hereinafter Claimant, went to the Illinois Public Aid office located at 8001 South Cottage Grove to apply for benefits. Claimant first approached the service desk to check in without incident. Claimant was directed to sit in the waiting area until she was called. Claimant was called back to the desk at approximately 9:00 a.m. As she returned to the service desk, Claimant slipped on orange juice and fell on her right side, landing on her shoulder, head and hip. Claimant testified that, immediately after she fell, a woman behind the desk exclaimed, “I told Fletcher to get that up 30 minutes ago.”

Claimant was helped up and taken to a chair by a guard and declined an offer to be taken to the hospital. Instead, she called her son who picked her up and took her to South Shore Hospital where she was prescribed Tylenol for pain. Several days later Claimant went to Citywide Clinic for hot pack treatments, electric treatments to her shoulder, neck and hip. Claimant had about 17 treatments, each lasting approximately ten minutes. She claims she has not regained full range of motion in her arm, which limits her normal housework activities.

Maiy John Frazier, public aid office manager, testified that, among other duties, she supervised the building maintenance at the incident location. Frazier testified that, in the normal course of business, maintenance matters would be reported to the office manager who would in turn notify the maintenance personnel. She stated that an employee could notify the maintenance personnel directly; however, that would be a deviation from normal procedure.

On the date of the incident, Mr. Fletcher was the maintenance man on duty. Fletchers duties included exterior. and interior maintenance responsibilities and would have included clean-up of the spill if he had been so instructed. Frazier testified that on the date of the incident she did not receive any notice of the spill and therefore did not instruct Mr. Fletcher to clean it up.

The State is not the insurer of the safety of persons visiting its buildings. (Berger v. Board of Trustees of the University of Illinois (1988), 40 Ill. Ct. Cl. 121.) The State owes a duty of reasonable care to business invitees in maintaining the premises. (Hall v. State (1992), 45 Ill. Ct. Cl. 27.) Invitees assume normal, obvious or ordinary risks attendant to the use of premises. (Thornburg v. State (1986), 39 Ill. Ct. Cl. 139,141.) In order for a Claimant to recover, she must show, by a preponderance of the evidence, that the Respondent owed the Claimant a duty, that the duly was breached by a negligent act or omission to act and that the act or omission proximately caused a compensable injury. (O’Neill v. State (1993), 46 Ill. Ct. Cl. 146.) Claimant must also prove by a preponderance of the evidence that the State had actual or constructive notice of the dangerous condition. Hardeman v. State (1995), 47 Ill. Ct. Cl. 292.

In this case, Claimant testified that immediately following her fall an unknown employee of IDPA shouted, “I told Fletcher to clean that up 30 minutes ago.” Respondent contends that the statement is hearsay and therefore inadmissible. Claimant argues that the statement is an excited utterance and therefore should be admitted as an exception to the hearsay rule.

An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Respondent argues that the facts do not constitute a startling event. We disagree; clearly it would be a “startling event” to watch an elderly woman slip and fall to the floor and injure herself. The incident could have been enough to elicit an excited spontaneous statement. However, Claimants failure to establish a proper foundation for the statement is problematic. In this case the declarant was never identified and never produced for direct or cross-examination. The Court determines that the statement is inadmissible.

In the absence of the statement by the unknown declarant, Claimant has failed to establish notice. Claimants failure to establish notice or constructive notice of the dangerous condition is fatal to her claim. Hardeman v. State (1995), 47 Ill. Ct. Cl. 292.

Therefore, the claim is denied.


author: JANN, J.

text:
    (No. 93-CC-0753
    Bruce Buelke and Dawes Transport, Inc., Claimants, v. The State of Illinois, Respondent.

      Opinion filed August 13, 1998.

    Katz, McAndrews, Batch, Lefstein & Fieweger, P.C. (Stephen T. Fieweger, of counsel), for Claimants.
    Jim E. Ryan, Attorney General (Michael A. Wulf, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

Claimant, Bruce Buelke, was involved in an accident while operating a truck for Dawes Transport on December 20,1991, at approximately 7:20 a.m. at truck scale no. 19 located along Interstate 80 in Rock Island, Illinois. Buelke was operating a 1985 Mack trailer with an attached 1984 Fruehauf semi-trailer in a westerly direction along Illinois Interstate 80. After entering the weigh station, Buelke s vehicle skidded off the ramp and overturned, damaging the truck, semi-trailer, and its contents. The Claimant also suffered bodily injuries and makes a claim for lost profits arising from the accident. Claimant claims that the State was negligent in leaving this scale ramp open and failing to salt, sand, or otherwise plow the ramp while it was opened since it had accumulated a layer of ice on it from a storm. Respondent contends that the proximate cause of the accident was the negligence of the Claimant in operating his vehicle.

Facts

The facts of this case are generally not in dispute. On the morning of December 20, 1991, a sleet and ice storm struck northwestern Illinois, including Rock Island County, where the accident occurred. The Illinois Department of Transportation communications center log book, by 4:45 a.m. on December 20, 1991, showed that a storm had hit Rock Island County. The Illinois Department of Transportation workers had been sent out to cover roads in Rock Island County. State Trooper Juan de los Reyes stated that when he came on duty at 6:00 a.m. on the morning of December 20, 1991, the surfaces of the highways that he traveled in Rock Island were ice-covered. In his report, dated July 20, 1992, to the Illinois Department of Transportation concerning this accident, State Trooper de los Reyes noted that the road conditions at scale ramp 19 were the same as the roads in the area.

David Sullivan, a truck weight inspector for the Illinois State Police, who had worked as a truck weight inspector for 15 years prior to December 20, 1991, notes that on the morning of December 20, 1991, he had extreme difficulty in driving the roadways once he reached the interstate roads. Mr. Sullivan admitted that the scale ramp is not used for interstate transportation, i.e., going from place to place, but rather the scales purpose is to determine if trucks are overweight and to determine revenue charges to be made by the State of Illinois for overweight trucks.

Mr. Sullivan stated that, when he used the westbound scale ramp for scale ramp 19, he traveled at a speed of no more than ten miles per hour because of the condition of the roadway. He stated the scale had not been salted, sanded or plowed prior to his arrival at work on the morning of the accident at approximately 7:15 a.m. Mr. Sullivan arrived 15 minutes late for his shift due to the inclement weather conditions.

The scale house truck weight inspector on duty at the time of the accident was Barbara Farmer. Ms. Farmer did not close the scale ramp and claimed she was unaware of the hazardous conditions on the ramp. No prior accidents occurred on the morning in question.

John Wegmeyer, IDOT studies and plan engineer, testified to the design and layout of the ramps and weigh station. He described the conformity of the scale with AASHTO standards and signed off by the Federal Highway Commission along with any guardrails, stating that any guardrails would not be required and would be inappropriate. He utilized drawings to establish a distance, starting at the edge of 1-80 to the start of the ramp, of approximately 300 feet, then approximately 1,000 feet to the in-motion scale, followed by an area of 425 feet in length which widens to two lanes, “By-Pass” and “Static Weigh,” with a median. The by-pass and static weigh-scale lanes are 16 feet and 12 to 14 feet wide, respectively. It is within this 425 feet that lights are posted to direct the truckers. The first set of fights are approximately 300 feet from the weigh in-motion scale. Wegmeyer testified that a truck moving at ten miles per hour, as Buelke states, would take 20 seconds to progress from the scale to the first set of lights. The Claimant testified that he had been an over-the-road truck driver for 15 years and he was traveling from Milwaukee, Wisconsin to Los Angeles, California. At approximately 6:00 a.m., he left Dixon, Illinois, and started westerly on 1-88, where he encountered freezing rain while driving after about the first half-hour of travel. He subsequendy traveled to westbound 1-80 at a speed of approximately 45 miles per hour as he approached the I-88/1-80 ramp to the scale house 19 ramp, when he noticed that that section of the road had been salted. By the time he was entering the scale house 19 ramp, he reduced the speed of his tractor-trailer to ten miles per hour. Upon entering the open scale ramp, he encountered a ramp that was covered with a solid sheet of ice. The Claimant also testified that he noticed the sign located one-half mile from the scale house ramp which indicated that the ramp was open. Because he is required by Illinois law to weigh in at an open scale ramp, he proceeded down the ramp despite its condition. As he approached the scale house, Claimant stated that the light indicated that he needed to weigh in and its arrow indicated that he should go down to the weigh-in lane. As he approached the second set of arrows, he testified that both arrows were operating. He testified that, at that point, he truck was lined up to go down the by-pass lane if he had not made a steering correction, but he decided he should go down the scale lane and he turned the wheel of his truck from a 12:00 o’clock to a 1:00 o’clock position, which would be sufficient to take his vehicle and his tractor-trailer down the scale lane. After making the steering correction, he tapped the brakes and his tractor-trailer slid in a straight line off the road and shoulder and down the embankment where it flopped over on its right side.

The Claimant suffered bruises to his left ankle, to his left shin and to the backside of his right thigh, which caused him problems for approximately one and one-half weeks. His tractor-trailer sustained damages of $22,442.67 and he incurred towing charges of $6,047. There was damage to the cargo contained in the Claimant’s tractor-trailer, towing of $744.92 and he incurred $1,800 in tractor and trailer rental expenses to complete his run to Los Angeles. He incurred $60 in expenses for emergency treatment at Avalone Urgent Care. He stated this tractor and trailer were in good mechanical condition and had no external and internal damage to their structural body prior to December 20, 1991. He testified as to loss of runs between the period of January 7, 1992, and February 17, 1992, and one run the week of April 22, 1996, with average net revenue loss per run of $1,421 for total lost profit for the six runs that he missed of $8,526. Claimant seeks total damages of $41,620.59. Both Claimants Buelke and Dawes Transport have received insurance payments from the Associates, Inc., which has a subrogation interest herein in the amount of $20,181.13. The damages were not disputed by Respondent at hearing or in its brief.

Both parties agree that, generally, the State is not an insurer of the safety of the users of its highways and, in order to prevail on a negligence claim, a Claimant must prove that the State had actual or constructive notice of the dangerous condition and that the alleged defect was the proximate cause of the Claimants injuries. (Sharp v. State (1995), 47 Ill. Ct. Cl. 227.) A Claimant is required to prove by a preponderance of the evidence that a defect or hazardous condition existed at the site of the accident; that the State had actual or constructive notice of the defect or hazardous condition; and that the defect or hazardous condition was the proximate cause of the accident. Kataldl v. State (1983), 36 Ill. Ct. Cl. 24.

The record herein indicates that the State had notice of hazardous road conditions and was in the process of sanding and salting the roadways. Testimony indicated that IDOT procedure is to address the main roadways and bridges first, and that scale ramps are cleared and salted after the main roadways are cleared. This seems a sensible procedure, as the scale ramps may be closed by simply flipping a switch inside the scale house. Mr. Sullivan did close the ramp upon his arrival, virtually concurrent with Claimant Buelkes accident. Respondents argument that it had no notice of the icy conditions is not supported by the preponderance of the evidence. Ms. Farmer should have known of the ramp conditions well before the accident occurred in the exercise of due care in carrying out her duties.

Respondent argues that Mr. Buelkes steering correction in attempting to comply with the arrow signals and move into the manual scale lane was the sole proximate cause of the accident, and that he was negligent in driving too fast for conditions. However, Respondent has not proved that Claimant was driving too fast for conditions or in any way contributed to his own injuries. The evidence indicates that the witnesses relied upon by Respondent did not see the accident and that Trooper de los Reyes did not conduct an accident reconstruction investigation of the incident. Respondents witnesses, with the exception of Ms. Farmer, all agreed that the ramp was very slippery and dangerous.

Based upon the foregoing, it is hereby ordered that Claimant Buelke be awarded the sum of $34,828.67 for all damages arising herein. Claimant Dawes Transport is hereby awarded $6,791.92 for property damage and towing. Payment of the awards shall be withheld pending resolution of the lien issues.


author: Hess, J. Mitchell, J.

text:
    (No. 93-CC-1501
    Michael Bean and Kimberly Bean, Claimants, v. The Board of Trustees of the University of Illinois, Respondents.

      Order filed December 9, 1998.

      Order on petition for rehearing filed August 27, 1999.

    McCoy & Bade (Richard D. McCoy, of counsel), for Claimant.
    Heyl, Royster, Voelker & Allen (Richard P. Klaus, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Hess, J.

This complaint arises out of an incident on December 28, 1990, when Michael Bean, then living in Louisville, Kentucky, was visiting the University of Illinois attending a Global Mission Conference. He was there as part of a Presbyterian theological seminary internship. At approximately 5:00 p.m. on that day, Mr. Bean was heading to the dinner hall, which took him to the intersection of Goodwin and Gregory, where he was stepping over a “windrow” of snow and ice abutting the curb. His right foot shpped out from under him and he fell backwards onto the snow and onto the curb.

Upon returning home, the Claimant sought medical attention. On January 31, 1991, he had surgery wherein his vertebrae and C-6 were fused. His spinal cord had been compressed.

Dr. Cowles, a neurosurgeon, testified that the Claimant had suffered pretty severe myelopathy and diagnosed spinal cord compression in the cervical spine. Dr. Cowles removed the disk and extruded material and placed a strut of bone called a fibular wedge. Dr. Cowles explained that the damage will never fully resolve and his object was to prevent a worsening condition, rather than to achieve full resolution. Dr. Cowles indicated the problem was trauma-related. He further opined that the Claimant will never be able to engage in sports again to any significant degree and will further experience permanent sexuality and bowel problems. He also stated his upper extremity problems will be permanent in terms of weakness and fine motor control.

The Claimant was in a cervical collar for eight weeks and was in a wheelchair for two months. He was in physical therapy for one year and his Kentucky workers’ compensation determined that he was 48.87 percent partial permanent disability. The Claimant testified that he used to backpack, canoe, whitewater paddle, camp, dance, work heavy construction and have frequent and energetic sex with his wife.

The Respondent denies liability in this case and further filed four affirmative defenses of which the first, second and fourth affirmative defenses were allowed to be argued. This Court denied the third affirmative defense. The affirmative defenses alleged comparative negligence and further alleged that the natural accumulation of snow and ice was an open and obvious danger and that the Claimant slipped and fell on a natural accumulation of snow and ice.

• Gary Biehl is a civil engineer and was in charge of snow and ice removal at the University of Illinois. He testified that the University of Illinois has written procedures for snow removal and these procedures were updated annually. He testified that windrows that are created by snowplows are to be removed by employees.

Further, the facts establish that the Board of Trustees employs grounds tractors to clear snow from sidewalks, and after passes have been made on the sidewalks, the grounds workers will use hand shovels to clear out the intersection down to the pavement.

Operating engineers also work in snow removal using backhóes or loaders, and their first priority is to clear service areas. Once, the priority areas are clear, they will work in intersections. A grounds foreman and an operating engineer foreman work to identify trouble spots. Operating engineers have contact with the supervisors regarding spot work in problem areas in intersections of streets. The service areas are the first priority and the intersection spot work is the last work done by the engineers.

This Court has repeatedly held that the State is not an insurer of individuals who decide to use its facilities. (Hoekstra v. State (1984), 38 Ill. Ct. Cl. 156, 159.) The Court has held that “it is the law of this State that the mere presence of snow and ice accumulating because of natural causes is not such negligence as to make the owner of the property in question liable.” Serage v. Board of Trustees (1973), 28 Ill. Ct. Cl. 368, 371; White v. State (1984), 38 Ill. Ct. Cl. 1, 3.

The Claimant argues that the snow removal was performed in a negligent manner and must not result in the unnatural accumulation of snow and ice and cites numerous cases to support his position. It is Claimants position that the creating of the windrow is an unnatural accumulation of snow and ice and was created by the snow removal of the Board of Trustees.

The Claimant testified that it precipitated for a full day before the accident and the State water survey report shows winter precipitation on December 27, 28, 29 and 30. The Board of Trustees had full crews working on December 27, 28 and 29. The Claimants argument is weakened by the fact that Claimant testified at trial that he slipped on the snowpacked street. This would seem to place a natural accumulation rule in effect.

However, even if Claimant is given the benefit of the doubt, and had slipped on the snowbank, the Respondent cites an Illinois Appellate Court decision showing there is no duty to remove such curbside snow. (Kiel v. City of Girard (1995), 274 Ill. App. 3d 821, 211 Ill. Dec. 291.) In Kiel, the plaintiff slipped and fell on snow that had been plowed next to the curb by the City of Girard, during street and sidewalk clearing operations. In reversing the jury verdict that goes against the manifest weight of the evidence, the Illinois Appellate Court noted that, “the City created a small, but easily visible, mound of snow on the curb as a side effect of its street and sidewalk clearing efforts. There was nothing unusual about the size or placement of this mound. Snow cleared from pathways must be placed somewhere.” (Id.) The Court further went on to say that “requiring a prompt cleanup of all snow plowed curbside would place an enormous burden on cities, and such a duty would have the consequences of discouraging snow removal. We hold Illinois law imposes no such duty.” Id.

The facts in the Bean case are similar to that of Kiel. It is uncontradicted that the Board of Trustees had full snow removal crews out at all times.

The Court finds that the Board of Trustees had no such duty to the Claimant and the claim is denied.

ORDER

Mitchell, J.

This matter comes before the Court on Claimants' petition for rehearing. After having reviewed the petition for rehearing, along with Claimants’ and Respondent’s briefs and memorandums of law, the Court finds no basis for overruling its previous decision. Therefore, the Claimants’ petition for rehearing is denied.


author: Mitchell, J. Mitchell, J.

text:
    (No. 93-CC-1890
    Mary Laughary, Claimant, v. The State of Illinois, Respondent.

      Order filed May 3, 1993.

      Order filed March 3, 2000.

    Warren E. Danz, for Claimant.
    Jim E. Ryan, Attorney General (Brian J. Dees, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

This cause coming on to be heard on the request of Claimant to dismiss the above-captioned matter and the Court being fully advised in the premises, it is hereby ordered that the request of Claimant be, and is, hereby allowed, and the case accordingly is dismissed.

ORDER

Mitchell, J.

This matter was before the Court for hearing on the complaint of the Claimant on January 14, 1999.

Both parties have filed briefs.

The petitioner, Mary Laughary, visited the Capitol Building in Springfield, Illinois, on June 20, 1992. The petitioner resides in California, and with her husband, grandson and daughter were visiting the Capitol Building while on vacation.

Claimant first visited the Visitors Center and stated that she was instructed to take a certain pathway over to the State Capitol Building. Accompanied by her family, the Claimant proceeded on the sidewalk towards the back of the Capitol Building on the Monroe Street side of the Capitol and tripped on a raised portion of the sidewalk.

Claimant testified that she did not have any visual problems or any handicaps. Claimant testified the weather conditions were sunny, about 80 degrees with a clear blue sky. Claimant testified that prior to falling she was looking ahead of herself and that she fell on her left arm and left shoulder. Claimant said she tripped with her right foot on a raised portion of the sidewalk.

Claimants expert, Matt Green, testified that the area where Claimant tripped consisted of two separate portions of concrete with three-fourths inch through one inch height difference vertically and approximately the same gap between the two slabs in a horizontal direction. Mr. Green admitted that he did not measure between the two sections; instead, he “eye-balled” the measurement.

Mr. Green further testified that he had never taken any course of study regarding pedestrian safety and had never undertaken any course of study that would correlate the degree of dangerousness of a sidewalk to pedestrian traffic with regard to elevation between two separate pieces of sidewalk. Mr. Green said he partially arrived at his conclusion through “common sense.”

Finally, Mr. Green stated that his opinion that the deviation in the height of the sidewalk was not acceptable, was not based on any formal written standard, but, rather, was based on his opinion only.

Dr. Caren Ires testified by evidence deposition. She is a board certified orthopedic surgeon. She testified that the Claimant suffered a tear to the rotator cuff of her left shoulder and Dr. Ires performed surgery to repair the rotator cuff tear on December 3, 1992. She testified that the tear of the rotator cuff was causally related to the history of the accident on June 20, 1992. Claimant’s total medical bills as a result of the accident were $14,710.70.

Claimant testified she still has stiffness in her right knee and is not able to do many of the activities that she could do before. She further reported pain to her left arm and hands.

Claimant cites Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 468, to establish that:

“a possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover it or realize the danger, or fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.”

Claimant argues that, because the Capitol attracts people to Springfield, the Respondent has a duty to properly inspect the sidewalk and notice a defect where the petitioner suffered her injuries. Claimant further argued that the Respondent should not have expected the Claimant to notice the defect on her own. Finally, Claimant argued that Respondent failed to exercise a reasonable degree of care by its failure to post a warning of the defective condition and did not repair the defect in a timely manner.

Respondent argues that the clearly established rule in “sidewalk” cases is that, “municipalities do not have a duty to keep all sidewalks in perfect condition at all times.” Arvidson v. City of Elmhurst (1957), 11 Ill. 2d 601, 604,145 N.E.2d 105,106.

In Simpson v. State (1985), 37 Ill. Ct. Cl. 76, Claimant was injured in a state park when she fell on a drop-off of one to one and one-half inches. In ruling in favor of Respondent, the Court observed the following:

“The State is not an insurer of Claimants safety. To recover damages, Claimant must prove by a preponderance of the evidence that a dangerous or defective condition existed on or around the pathway, that the State knew or should have known of this condition, and that this condition caused Claimant’s injuries.”

The Court observed that the drop-off was less than two inches and noted the general rule on such cases is that “minor” defects in a walkway are not actionable.

The Court of Claims has also been consistent in holding that, in order for a Claimant to recover in a negligence action involving defects in a sidewalk, the State must have had actual or constructive notice of the defect that caused the injury. Nolan v. State (1983), 36 Ill. Ct. Cl. 194,199.

The record in this case is without any actual or constructive notice of any defect in the area where the accident took place. Furthermore, the Claimant has failed to present any evidence that there have been prior injuries on this sidewalk.

Respondent points out that Claimant did not cite any case law which found liability with comparable dimensions of the defect as described herein. Respondent cited several cases and.argued that they stand for the proposition that a defect of three-fourths to one inch is not actionable. Warner v. City of Chicago (1978), 72 Ill. 2d 100, 378 N.E.2d 502 (one and one-eighth inch not actionable); Birick v. City of Quincy (1995), 241 Ill. App. 3d 199, 608 N.E.2d 920 (one and seven-eighths inches not actionable).

Claimant has failed to establish a duty, or a breach of duty. Furthermore, Claimant has failed to establish that the Respondent had either actual or constructive notice of any defects in the sidewalk. Therefore, the claim is denied.