Susan Haggard and James Witzel v. State of Illinois

This matter comes before the Court on the motion of the commissioner to dismiss Count I1 of the complaint as to Claimant, James Witzel, for failure to appear before Commissioner Robert J. Hillebrand for a hearing [*728] on July 1, 1981. Due notice having been given toJames Wit zel.

It is hereby ordered that Count I1 of the Complaint as to Claimant, James Witzel, be dismissed for failure to appear and proceed at the scheduled hearing on July 1, 1981.

OPINION

POCH,J.

Claimant in this action seeks damages for personal injuries and damages to her personal property when she drove her car into an accumulation of water on a State highway .

At a hearing before a commissioner of this Court, Claimant testified that on Sunday, July 2, 1978, at approximately 10:40 a.m., she was driving her car west on Illinois Route 161 in St. Clair County. She was driving about 50 m.p.h. and was on her way to Belleville, Illinois. It was a clear day. The highway is a two-lane blacktop surf ace road, and as Claimant approached the intersection of Illinois Route 158, about one-quarter mile east of the intersection, there is a slight depression in Route 161 where Ash Creek flows under the road. This depression was full of water about eight inches deep and 30 to 40 feet long, which covered both lanes of the highway. There were no signs of any kind warning traffic of this condition.

As Claimant approached the intersection, she began to slow down for the stop sign at Route 158. She testified that she first saw the water when she was about three feet from it; before that she did not see anything that would indicate any water standing on the highway. Her car hit the water, lifted off the surface of the road, skidded, [*729] rolled over end-to-end once and sideways twice, and came to rest off the road.

Claimant was thrown out of the car about 40 feet and landed face down in a pool of water off the shoulder of the road. She suffered cuts to her neck, a sprained ankle and numerous bruises. She was knocked unconscious for about 15 minutes. She was taken by ambulance to Memorial Hospital in Belleville, where glass was removed from her neck and the lacerations stitched. She remained in the hospital until July 4,1978. She remained under the care of a neurologist until July 13, 1978, and experienced spasms in her neck for about two months after the accident.

Claimant testified she had never suffered any prior injuries to her neck or shoulder. She now experiences spasms and pain in her neck about once a month, which lasts about two hours. As a result of the accident, she has scars on her neck and left shoulder.

Claimant testified that she had driven on Route 161 through the site of the accident on her way to work twice a day for a period of two months prior to July 2, 1978, and had never seen water standing in this area during that time.

The site of the accident is immediately south of Scott Air Force Base. Records from Scott Air Force Base showed that 1.72 inches of rain fell on July 2, 1978.

George Huckman, a civil engineer with the Illinois Department of Transportation, testified that he had been responsible for field maintenance over the area that included the accident scene. He described the drainage condition for a watershed known as Loop Creek, which flows in an easterly direction and lies south of the accident scene.

[*730] Ash Creek flows southerly through Scott Air Force Base and into Loop Creek. A record from the Department of Transportation showed that Loop Creek flooded severely enough to close Route 158 about 1.5 miles south of Route 161 on March 13,21 and 24, 1978, and that Ash Creek flooded also on each of those dates. He expressed his opinion that the 1.72 inches of rainfall recorded at Scott Air Force Base on July 2,1978, might or could have caused flooding on Ash Creek at the scene of the accident.

The State had adequate warning of the recurring flooding conditions on Route 161 at Ash Creek, yet it failed to place any signs warning of the water over the roadway. National Bank of Bloomington v . State (1980), 34 Ill. Ct. C1. 23, 25.

The Court finds that the State’s negligence was the proximate cause of Claimant’s accident. The negligence of the State in permitting the water to be on the road was the proximate cause of the accident since there is no evidence of any act of negligence on the part of Claimant.

The uncontradicted evidence shows that Claimant has had pain and discomfort ever since the accident for which she is entitled to recover.

It is the opinion of this Court that Claimant be awarded damages in the sum of eight thousand ($8,000.00) dollars.

[*731] ( No . 80-CC-0595-Claimant awarded $141.00.)

J. J. ALTMAN & C OMPANY, INC., Claimant, 0. THE STATE OF

ILLINOIS, Respondent.

Opinion filed Iuly I , 1982.

STERLING AND ALTMAN, P.C. (G LENN A. A LTMAN, of counsel), for Claimant.

T YRONE C. FAHNER, Attorney General (SUE MUELLER, Assistant Attorney General, of counsel), for Respondent.

NEGLIGENCE-TOCk thrown by mower- car damaged- claim allowed. Award granted on res ipsa loquitur theory where State worker was mowing along highway and rock was thrown against Claimant’s automobile by mower, since instrumentality which caused damage was in control of State, Claimant did nothing to contribute to damage, and damage would not have occurred except for State’s failure to warn about mowing or prevent foreign objects from being thrown by mower.

ROE, C.J.

This claim arises from an accident which occurred while Respondent’s employee was mowing brush along a public highway. On August 24, 1979, Claimant’s employee was driving an automobile owned by Claimant on Lake Drive along the boundary to Frank Holten State Park near East St. Louis, Illinois. Kevin Ellis, an employee of the Illinois Department of Conservation, was operating a hog mower in the park area adjacent to Lake Drive. Some foreign object, either a rock or piece of wood, was thrown by the mower against the Claimant’s automobile. The cost of repair was $141.00.

Neither party introduced any evidence at the hearing but rather submitted the case by stipulation upon the facts recited above. Claimant argues that these facts support judgment in its favor on the doctrine of res ipsa loquitur.

Respondent, as the owner of the real estate along Lake Drive at the site of the occurrence, had a duty to [*732] take reasonable precautions against possible injury or damage to persons on the adjacent highway caused by any hazardous activity on the real estate. (Andronick v . Danisxweski (1932), 268 111. App. 543; City of Joliet v. Harwood (1877), 86 Ill. 110; Village of Jefferson v . Chapman (1889), 127 Ill. 438.) The doctrine of rc’s ipsa loquitur may therefore be invoked to allow the trier of fact to infer that Respondent breached its duty to Claimant if the instrumentality which caused Claimant’s damages was under the control or management of Respondent, if Claimant did not contribute to the damages, and if the damage was such that it would not have occurred except for negligence by Respondent’s employee. Smith v . General Paving Co. (1978), 58 Ill. App. 3d 336,374 N.E.2d 1134.

The facts to which both parties have stipulated show that Respondent had complete control of the mower. No evidence whatsoever was offered as to any action by Respondent to warn about the mowing or to prevent any foreign objects from being thrown by the mower. “When a thing which has caused an injury is shown to be under the management of the party charged with negligence and the accident is such as in the ordinary course of things will not happen if those who have such management use proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the parties charged, that it arose from want of proper care.” (Feldman v . Chicago Railways C o . (1919), 289 I11.25,34; Westchester Fire Znsurance C o . v . State (1972), 27 Ill. Ct. C1. 327, 329.) No such explanation was offered by Respondent.

It is hereby ordered that damages of $141.00 be and hereby are awarded to the Claimant.