Elaine a. Metzler v. State of Illinois

Claimant Elaine Metzler seeks recovery of the sum of $25,000 as a result of the death of her husband, Marvin Metzler, who was killed on April 13, 1964, when a tree situated next to U.S. Highway 14 (Northwest Highway) fell upon the cab of the truck driven by decedent.

The parties have stipulated that claimant's decedent, Marvin Metzler, was killed as a result of the accident and that the trees and the land upon which they were situated were owned and controlled by respondent.

Claimant presented several witnesses who testified as follows:

Lt. Irvin McDougall, a police officer of the Village of [*208] Arlington Heights, testified that he investigated the accident on Northwest Highway on the morning of the date in question. He found a large tree lying across the Highway completely blocking the street and a Readi-Mix truck about 222 feet west of the tree on the south side of the highway. A part of the base of the tree was in the ground and part of the base was out. The base was about 4 feet from the edge of the highway. The cab of the truck was smashed even with the top of the hood of the truck and there was a dent on the top part of the truck. The driver of the truck was flat on the seat of the truck and had no movement. The witness examined the tree involved in the occurrence and saw that it was hollow from the base upward, with decayed matter at the bottom. There were several other trees in the immediate area at that time. There was a heavy wind in the area at the time of the occurrence.

Manley Johnson testified that he was driving a vehicle in a southeasterly direction on Northwest Highway as the tree fell on the truck. The witness saw the truck coming toward him in a northwesterly direction and noticed that it was in the proper lane for northwest traffic and was traveling at a rate less than the speed limit. The witness examined the tree after it fell and observed the trunk of the tree and the base of the tree were decomposed and rotten.

Paul Dolinajec, Jr., testified that he lived at the site of the accident for 43 years. Prior to April 13,1964, he noticed that there were little openings in the base of the tree which were visible from the exterior; that bark was missing towards the base of the tree; that the top branches were dying and that in his opinion, the tree was turning rotten.

There were three other trees in the area which were in very bad shape, in the opinion of the witness.

Respondent introduced no witnesses or other evidence during the course of the hearing, but filed a Departmental Report with its brief.

[*209] I Claimant cites the following cases in support of her claim against respondent: In Dreier vs. State, 21 C.C.R. 72, claimants recovered when a large limb from a tree fell on their car during a rain storm. It was established that the dangerous condition had existed for a length of time, although it was not clear that the State had actual notice of the defect. The Court quoted from the case of Renle vs.

City of Chicago, 268 Ill. App: 266, which held that a city had the duty to remove any trees which become rotten or decayed in case the trees became a menace to pedestrians.

The Court in Dreier further stated, (p. 75): “The position of the tree, and the enormous size of the limb o\-erhanging the highway warranted a duty on the State to remove the same, if it \rere defecti\.e.

That the State had knmvledge is in conflict; that it had constructive knodedge seems borne out by the evidence, and required the State to exercise a dnt). to re1mn.e this dangerous obstacle; and from this iecord, its failure to do so constituted negligence.”

In Kenney vs. State, 22 C.C.R. 2A7, a tree limb fell on the decedent while he was on the State Fairgrounds, and killed him. The question arose as to whether respondent had actual or constructive notice of the defective condition of the tree. The Court held for the claimants, applying the doctrine of “res ipsa loquitur” as follows: (pp. 256,257,258) ‘The respondent has not offered any evidence, or explained \vhy the limb fell, other than that it did not know the tree was in a dangerous and hai.ardous condition until after the accident. lye are of the opinion that, from the testinion!,. the disease in the tree could have been determined had a proper inspection been made by respondent’s agents. It n.as respondent’s duty to make such an inspection in order to safeguard the patrons at the Fair, which fact was later rccognized. :IS the diseased condition in other trees surrounding the tree in question c\identl!. was apparent to respondent’s agents after the accident. . . .”

“L‘nder the maxim ‘res ipsa loquitur,’ our courts have announced man!’ times that where a thing, \vhich has caused injuq, is shown to be undcr the management of the party charged with negligence, an accident is such as in thc, ordinary course of things does not happen, if the management uses proper cart’.

The accident itself affords reasonable evidence, in the absence of an explanati~iii by the part!. charged, that it arose from \vant of proper care.”

It is clear that the foregoing standards apply directly to [*210] the instant case. Respondent presented no evidence which tencled to show that it exercised proper care, although claiinant established that respondent knew or should ha\,(. kno\\.n about the defective tree.

Other evidence introduced by claimant established that the decedent was 35 pears old at the time of his death; that he left surviving, his wife, Elaine Metzler, 39, and two children, ages 6 and 9; that he had been emplo).ed b\r the Eclvin €1. Mayer Construction Company for about thirteen \.ears and had been so ernployed at the time of his death; and that his earnings in the years immediately preceding his dcath \ \ we as follows: 1961, $7,246.80; 1962, $8,548.70; 1963. $8,724.15. tIis family was c.otiipletel>rdependent upon the dcceclent for its support. The United States 1)el)artnient of Health, Edacation and \\'elfare Life Tables indicated that the lifc espectanc). of a white male of the age of *35

I

Jxws is 36.3 years, and that the life e<pectancy of a white l c 41 !-ears is 36.4 years. f e ~ ~ i a of Claiinant is hereb). awarded the siini of $25,000.

[*212] ! iina\~oidabl~- s \ \ - c n d to the right; that claimants’ auto had b c w ~in ;I p1;ice of safet!. behind the snowplow; that there , \vcrc’ i\.arning lights on the truck: that clainiant left the area of safct!. ancl tried to pass the snowplo\v truck on an unclcarcc-1 path jr-ithoiit gi\.ing sufficient clearance to pass respondent’s vehicle; and that the driver of claimants’ car was contributorily negligent.

The respondent further charges that the passengers, \Iaric. Hi\mltorto and Yolanda Honianazzi, were guilt)’ of contribiitor!, negligence because the), allowed themselves to bc. placed in a condition of danger and did nothing to rcdiicc. or corrcct the danger, such as asking the dri\,er of thcir auto to sta!- in the cleared path behind the snowplow or to ai.oitl passing the truck too closel)~. \ \ l i i l c ~ thc, \\-itnesses \\w-c’ not in agreement as to \\.hether the sno\\.plo\\- blade suddenlj~fell in front of cliiiinants‘ car or w-hether the truck skidded in front of claiiiimts’ car. it \\-oulcl appear that res1)ondent \\-as ncglig~cnt. ‘I’herc. \\.;is no e\iclence that claimant \\-as contributori1)- ncgliggent in passing the snonrplo\\, b>. traveling in the iiiidcllc~l a n c ~or not sn.er\.ing into the third lane. \\’eather conditions \\-ere not too dangerous to perniit driving on the c.l)rc.ss\\-:i)-, as e\.idenced frorn the testinion). n7hic.h est:iblishcd ht.u\-!- traffic iising the road at the time of the acCid(Wt.

The. claiiii;int cites the siinilar case of I-iargraw \-s.

S t c i t c , . 2-1 (:.(;.I<. -163. 467. in ii.hich the court stated: “ l i i ~ \ l ) o i d ( m tt , l : i i i i i \ tli;it tlri\ \\;I\ ; in iiii;i\iiitlahlc a w i t l e n t . It is t l w o p i i i i i i i i of t l w CJoiirt tli;it 1 1 ~ tliic.ti-iircb . l i t r w i l x i Iocliiitiir is I ) r o p ( d > .applied in thca c ‘ i i ~ t:it ~ hand. \ i n w . if 1)roIit’r c ; i r t s 1 r ; d l ) c w ~i i \ t ~ l .;I siiii\t-plo\t. frarne tlot.s not o r c l i i m r i l ~ f d l o t f ii triii,k c:iii\iiic tlrt, triic,k to c(iiii(. t o i t s i i t l t l ~ ~\top.” n p l ’ l ~ ( b (loc*triirc> of res i l x i lociiiitiir has been defined as foIlo\\.s: [*213] “\\hen an injury is caiised by an instrumentality nnder the exclusive control of thy party charged \\.it11 negligence. and is such as \vould not ordinarii!. happen if the part!- ha\-ing control of the instrumentality had used proper care. an infercmcc or prcsiiniption of negligence arises. The burden then rests iipon the respondent to rchiit the I)rrsrirnption of negligence arising from the facts of the case” (City of S t . f m t is \.s. Stotr. W C.C.R. 477, 479) Claimants further urge that Noel Paul violated the Uniform Motor \'chicle Traffic Act, Illinois Adotor Vehicle Code, Ch. 95fh, Sec. 157, Ill.Rev.Stat., 1969, which pro\.ides that whenever any roadway has been divided into two or niore clearljr marked lanes of traffic, a vehicle shall be dri\.en as nearly as practicable entirely within a single lane and shall not be moiJed from such.lane until the driver has first ascertained that such movement can be made with safet)..

In the opinion of the Court, the passenger claimants \vert. not contributorilj? negligent and the injuries which the!. received were proximately caused by respondent’s negligence in failing to keep its vehicle under control and in its proper lane, or in failing to control the action of the sno\vplo\\~blade.

It appears from the evidence that claimant, George Pascucciello, suffered back injuries and missed two weeks of nwrk. Claimant, Marie Rivoltorto, had a fracture of her right \vrist and missed 11 weeks of work. The evidence further shows that Yolanda Romanazzi expended $50.00 for medical expenses as a result of said accident, but she did not appear at the hearing.

Claimants are hereb!. a\varded the following amounts: George H . Pascucciello is a\varded the sum of $1,500;Marie Riiwltorto is awarded the siini of $5,000 and Yolanda Komanazzi is a\varded the suni of $50.00.

[*214] 5 ' ~ j ~ - ( : l ~ i i i t t ~ i iat \t\ - a r t l r t l %1.603.39.) (10.

AMERICAN OIL COMPANY INCORPORATED, A Corporation; Claimant, us. STATE OF ILLINOIS, VARIOUS STATE AGENCIES, Respondent.

OjJitliftIl f i / d .\/O!/ 1 1 , 1971.

G ILLESPIE, B URKE A N D G ILLESPIE, Attome!. for Claim( \ o. 5650-( %iii i i a n t a\vardcd $ 2 5 . 7 7 . ) ~ I A R R (:HARNESKI, Y for the use of GESERAL CASUALTY COMPANY O F \\'ISCONSIN, Claimant, IX.STATE OF I LLINOIS , I LLINOIS YOUTH COMMSSION, Respondent.

Opitiiftti filed .\/r/I/ 11. 1971.

GIL,L,ESPIE, B URKE AN D G ILLESPIE , Attorne!. for Claimant . \\.ILLIAXI J . SCOTT, Attorne!, General; \\'ILLIAM E. \\'EHHER, Assistant A ttorne)' General, for Hesponden t. , ( : o s T H A ~ : T s - / ~ / , . ~ ~ . ~f ~~ j , / J r f J / t r i f t / if ~\\'lien il. the ~ i i ) i ~ r o i ) r i ~ it i of rl ot i i i \\.hi& a h a \ . c s lwcw 1)aitl has 1;ipwd. t h c C o i i r t \\-ill cwtor an a\\-;ir(I l o r t l t c s c l a i it i shoiiltl amount tliic. cliiit m i it .

PERIJX.C.J. (\[I. .j65-(;laitii tlc,nicd.)

JUDITH 11. h m m . as Adininistrator of the Estate of LOWELL R . 1 IILDF:S. I>cceasecl, ancl JUDITH Jl. H ILDES , incli\~iclually,Claimant.

G.Y. STATEO F IL.LISOIS. 1>1v1srosOF H IGHWAYS, Respondent.

[*215] O / ~ it i i ( filrrl ~ t ~ .\ful/ 11. 1971.

HOSZKOWSKIA N D PADDOCK, Attorney for Claimant. \\'II.I.IAXI J . SCOTT, Attorne)r General; BRUCE J. F INNE , Assistant A ttornc.!. General, for Respondent.

CosrRacrs-/ll,sc.rl//j,~(,~f// / J / ~ r f ~ / ~ r i ~\\'hen / t i ~ ~the t I . appropriation from \vhich a claiiii ahoriltl h a w Iwtw imitl has Iapsctl. the Court \vi11 enter an award for thc amorint d r i c cl;iiiii;iint.

I IOI.DERXIAN, J .

(So. .5716-Chiiiiiiiit a\vardetl $49.09.)

CLARK O IL AN D HEFINING CORPORATION, Claimant, us. STATE OF , EPARTMENT OF PUBLIC SAFETY, Respondent.

I L ~ I J W I SD f i k d M u ! / 11, 1971.

Oj~i~iioti

(111, A N D R EFINING CORPORATION, Claimant, pro

CI,AHK

SC'.

\\.ILL,IAXI J . SCOTT, Attorney General; WILLIAM E. \\'EHHEH, Assistant Attorney General, for Respondent. \\'hen the appropriation from Lvhich ii C o s m x l s - / r / , s c d ci/'/~rcJ/~rintioti. claim shoiiltl h;i\-(.I m w i d has lapsrtl. the Court \vi11 enter an award for t h r anioiiii t dric, chii ii;in t.

I'EHLIS, c.1.

( So . 5723-C:I:iiiiimt a\varcletl $45-1.45.)

€IOUSE OF 'I'ooI,~, I NC ., Claimant, us. STATE OF ILLINOIS, IIEPARTXIENT OF PUBLIC SAFETY, Respondent.

@ p i t i i o ) i f i k d .\fq 2 2 . 1971.

1 1 0 ~ s ~01.-: 'I'OOLS, I N C ., Claimant, pro se. \\'tI,L,iAXi J . SCOTT, Attorney General; \\'ILLIAM E. \\.E:HHEH, Assistant Attorney General, for Respondent. c i / ) / ~ r " / ~ r i r i t i o t\\-hcii Cos~~.~cI~-/r/,.~c,tl i. the alipropriation f r o in which ti [*216] claim should have been paid has lapsed, the Court will enter an award for the amount due claimant.

PERLIN, C.J.