Anderson S. Nurse v. State of Illinois

This is an action for damages done to Claimant’s automobile when a mower being operated by an employee of the State allegedly threw a stone and broke the rear window in Claimant’s car. It was stipulated on the record that the repair bill was $136.62, and that Claimant paid the bill without insurance reimbursement.

The facts are summarized in a memorandum dated May 2, 1980, from John R. Platt, superintendent Illinois Youth Center Valley View, to William 0. Gillespie, assistant director of the Department of Corrections, made part of the. departmental report filed in the cause:

“Onr employee Mr. Anderson Nurse, Youth Supervisor 11, had parked his car in the front parking lot on May 1, 1980. His rear window MUS shattered by ii rock. Mr. Scott had been mowing with the tractor behind his car and apparently caused a rock to be thrown through the rear window. There were no wit[*760]nesscs. It does appear, however, that the explanation for the resulting danlage is pl;insible. No individu;ils other than Mr. Scott or the tractor were present.”

Our claims committee, pursuant to former Director Rowe’s memo of April 12, 1979, recommends that Mr. Nurse’s claim be processed having established that 1) He has no comprehensive insurance coverage and 2) he incurred the expense of replacing the window ($136.62) and 3) in the opinion of the committee the window was broken accidentally by a rock thrown by the institution tractor which was engaged in mowing behind Mr. Nurse’s car.

I concur with the finding and recommendation of the committee.”

Also in the departmental report is a statement from the tractor operator:

“At approximately 9:00 a.m. after having just finished mowing the area from the gate house to the end of the front parking lot, 1 was approached by Mr. Nurse who asked me if I knew anything regarding his broken rear window. I told him no, and that I was not aware of it until he asked me about it at this time. He then asked me if the mower could have thrown a rock, and I stated that it is possible, and if that was what happened, I did not hear anything at the time due to the engine and mower noise from the tractor, nor did I notice same, for as previously stated, I was not made aware of the situation until Mr. Nurse asked me about it.”

In the opinion of the Court, based on the departmental report and Claimant’s testimony, Claimant has made a prima facie case by acceptable circumstantial evidence that the rock which smashed the window of his car was in fact thrown by Respondent’s lawn mower.

Further, in the opinion of the Court, the doctrine of res ipsa loquitur is applicable herein, so that it can be said that Claimant has also made a prima facie case of negligence against Respondent.

Hunter, in his Trial Handbook for Lawyers, fourth edition, states as follows:

“When a thing which caused the injury is shown to be under the control or management of the party charged with negligence and the occurrence is such as in the ordinary course of things would not have happened if the person so charged had used proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care. Metz u. Central Electric G Gus Co., 32 Ill. 2d 446, 207 N.E. 2d 305 (1965).

The purpose of the res ipso loquitur doctrine is to allow proof of negli[*761]gence by circnmstantial evidence when the direct evidence concerning canse of injury is primarily within the knowledge and control of the defendant . . .” Iliinter, Triul Handbook for Luwyers, fourth edition, 449.

Res ispa loquitur is frequently used when damage or injury results from the operation of machinery.

Respondent offered no evidence that the rock was not thrown by the lawn mower and offered no evidence of freedom from negligence.

It is hereby ordered that Claimant be and hereby is awarded the sum of $136.62.

ORDER ON REHEARING

ROE, C.J.

This cause coming on to be heard on the motion by the Respondent for rehearing, it appearing that due notice has been given, and the Court being fully advised in the premises;

This is an action for property damage done to the Claimant’s automobile allegedly caused by a lawn mower operated by an employee of the Respondent throwing a rock through the windshield. We found that the Claimant presented a case by acceptable circumstantial evidence that the rock was thrown by the lawn mower and granted an award. We also found that Claimant was entitled to an award on the theory of res ipsa loquitur.

Upon reconsideration and review of the record we find that the Claimant failed to prove his case by the preponderance of the evidence. There is no evidence other than speculation as to what caused the windshield to be broken. Nobody saw or heard it happen. Therefore, we do not find that the Respondent was negligent. Moreover, there was no showing that whatever caused the breakage was an instrumentality under the control and management of the Respondent. Therefore the doctrine of res ipsa loquitur does not apply.

[*762] Wherefore, upon reconsideration, it is hereby ordered that this claim be, and hereby is, denied.

( No . 80-CC-2154-Claimant awarded $2,000.00.)

L ARRY HORNER, Claimant, v. THE STATE OF ILLINOIS,

Respondent.

Opinion filed July I, 1982.

HAYES, MURPHY & HAYES, for Claimant.

T YRONE C. F AHNER, Attorney General (WILLIAM E. WEBBER, Assistant Attorney General, of counsel), for Respondent.

HmiwAus-snow pushed off bridge onto Cluimunt’s cur-uwurd granted. Claimant was granted award for personal injuries and property damage which occurred when State snowplow pushed snow off overpass bridge onto Claimant’s ailtomobile which was going under bridge at same time.

HOLDERMAN, J.

Claimant filed a claim against the State of Illinois as a result of an accident which occurred on March 12, 1980, at 2:OO p.m.

The facts are not in dispute. Claimant exited off Route 1-55 to go south on Route 1-57. As he was driving under the 1-55 overpass, a Department of Transportation snowplow on 1-55 pushed a load of snow and ice off the overpass onto the top of Claimant’s car. The windshield and roof of Claimant’s car caved in and Claimant was knocked into a brief state of semi-consciousness. Claimant had no warning of any kind of the act complained of.

At the hearing, Respondent did not offer any evi[*763]dence and did not file a brief with the Court.

Claimant seeks damages for towing charges, car rental, car cleaning, the deductibility on his insurance policy, damage to the suede coat he was wearing, minor repairs to his car, lost wages, as well as some damages for personal injuries allegedly suffered by him.

Claimant rented a car for 15 days at a cost of $270.00. After the said 15 days had elapsed, he used his parents’ car after purchasing auto insurance and registration in the amount of $112.30 which he agreed to pay for the use of the car. He also incurred other expenses for cleaning his car, insurance deductible and minor repairs, totalling about $172.00. Claimant testified he suffered from headaches for two to three weeks and lost two days work at $117.95 per day. At the time of the hearing, he stated he now experiences occasional headaches which he had not had prior to the accident.

An award is hereby entered in favor of Claimant in the amount of two thousand ($2,000.00) dollars.