Sharon a. Smith v. State of Illinois

This is an action for personal injuries sustained by Claimant as a result of an automobile accident which occurred on June 16,1973, at First Avenue approximately 150 feet south of Parkview Road, Riverside, Illinois.

The undisputed facts were that Claimant was operating a vehicle southbound on First Avenue and was struck by a northbound vehicle driven by Eleanor Jones who crossed the center line of First Avenue and entered into the southbound lanes of First Avenue, striking Claimant’s vehicle. Claimant filed suit against Eleanor Jones and others and recovered insurance policy limits of $10,000.00.

The issues in this case are (a) whether the State had notice of any dangerous condition of the roadway, (b) whether the State was negligent in its maintenance of the roadway, and (c) whether such negligence was the proximate cause of the Claimant’s injuries.

Claimant testified that on the date in question at about 10:48 p.m. she was travelling in a southerly direction on First Avenue approaching a viaduct. The weather was rainy. She noticed an accumulation of water on the pavement in the vicinity of the viaduct. As Claimant proceeded toward the viaduct, the vehicle operated by Eleanor Jones came northbound through the underpass, hit water -causing a large splash, changed lanes and fishtailed over the center line and struck Claimant’s vehicle. Claimant’s vehicle at all times was in the southbound lane of First Avenue.

Claimant testified further that whenever it rains, water accumulates under the viaduct.

John McCarthy and his son, Brian McCarthy, testified as post-occurrence witnesses that there was an [*7] accumulation of water under the viaduct after heavy rains for years.

Claimant’s husband also testified that for about eight years there had been water accumulations at that location every time there was a steady rain.

The investigating police officer of the Riverside Police Department, Joseph Kastner, testified that it was raining hard at the time of the accident but that he did not recall looking under the viaduct. Officer Robert Johnson recalled water covering at least the curb lanes of traffic for both north and southbound traffic on First Avenue at the underpass of the viaduct. Both officers agreed that after heavy rains there were accumulations of water under the viaduct, sometimes to the point where traffic would have to be rerouted. Sometimes police had been obliged to assist vehicles that had been stalled there because of the water.

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Eleanor Jones, the driver of the other vehicle, testified, as a hostile witness, that there was standing water

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on the highway immediately prior to the accident and that on occasions prior to the accident the road had a lot of potholes. She denied any further recollection of the incident but did not deny that she had previously testified at a deposition in the lawsuit brought by Claimant against her that as she passed the viaduct there was a puddle of water that covered a hole where her right front wheel entered causing her to weave from the right hand lane and causing her car to go out of control. She had not seen the hole because of the water and a visit by her to the scene after the accident revealed a hole large enough for her right tire to go into. Her previous testimony was somewhat impeached by her prior statement to the investigating officers that water splashing on her ,windshield caused her to lose control of her vehicle.

[*8] As to the issue of notice of a dangerous condition, it

is clear that the State had constructive notice of a flooding condition under that viaduct, a condition which had been recurring with regularity after heavy rains for many years. Thus, we find that the State had constructive notice of a dangerous condition for a long enough period to remedy the same or to warn the public of the condition.

On the question of whether the State was negligent, it is clear to this Court that allowing a flooding condition to continue to exist, without remedy or warning to the public, constitutes a failure to properly maintain the highway which is a breach of Respondent’s duty and is negligence.

The question of whether that negligence was the proximate cause of the injuries to Claimant is more vexing.

Respondent claims that it is mere speculation that water caused or contributed to Jones losing control of her car, citing the fact that neither the investigating officer nor the condition witnesses were able to state whether there was a significant water accumulation on the evening in question. However, in view of Claimant’s testimony that the Jones car veered after a splash and in view of Jones’ previous testimony to the same effect, and no contrary testimony brought by Respondent, we find as fact that the accumulation of water caused the Jones vehicle to strike Claimant’s vehicle.

Respondent argues that the sole or intervening proximate cause of the accident was Jones’ negligence in entering an area where she knew potholes existed, citing Dellorto 0. State (1979), 32 Ill. Ct. C1. 435, and Storen v . City of Chicago (1940), 373 Ill. 530, 27 N.E.2d 53, as authority for the proposition that the Respondent is not [*9] liable for merely creating a condition which makes an injury possible.

The Dellorto, supra, case is not applicable because that case concerned a rut in the shoulder of the road. A driver hit this rut, lost control of his car and killed the claimant. In view of the fact that the driver had to leave the road in order to strike the rut, it was clear to the Court that the driver and not the condition of the roadway was the sole proximate cause of the accident.

In the case at bar, there is no evidence in the record of any intervening negligence on the part of Jones. Thus, in the instant case, it was the dangerous condition itself which was the sole proximate cause of the accident and resultant injuries to Claimant.

Since the evidence showed Claimant was not guilty of any negligence at all, any questions of whether contributory or comparative negligence is applicable to this case are moot.

As a result of the accident Claimant was hospitalized at Foster McGaw Hospital for 55 days with multiple injuries including a fracture of the right olecranon; fracture of the right fibula; central dislocation of the left hip; fracture of the pubic rami; and multiple facial lacerations. She underwent the surgical procedures of open reductions of the right hip with insertion of rod, wire and dowel pin in the hip; open reduction of the right elbow and a wiring together of bone fragments. Her doctor and hospital bills amounted to $6,934.00.

She had been employed part-time at $75.00 per week and lost eight months from work, for a total lost earnings of $2,600.00.

As a result of her injuries, Claimant will permanently lack 30 degrees full extension of the elbow and 20 [*10] degrees full flexion of the elbow. There is a strong possibility of traumatic arthritis of the left hip in the future. Her surgical scars are permanent. At present, on occasion, she walks with a limp.

We find Claimant’s damages to be $50,000.00. Setting off $10,000.00 already received from Eleanor Jones, her net is $40,000.00. For the reasons set forth hereinabove, it is hereby ordered that the Claimant be, and hereby is, awarded the sum of $40,000.00 in full and final satisfaction of this cause of action.

( No . 76-CC-1400-Claim denied.) JOYCE EDWARDS, Individually and as Administratrix of the Estate of Chester Edwards, Deceased, and EVELYN EDWARDS, DAVID EDWARDS and JOHN EDWARDS, minors, by their mother. and next friend, Joyce Edwards, Claimants, 0.THE STATE OF

ILLINOIS, Respondent.

Opinion filed January 11,1984.

Order on denial of rehearing filed April 3,1984.

BRADLEY, BRADLEY & NEDERMAN, for Claimants.

NEIL F. HARTIGAN, Attorney General (JAMES A. KOCH, Assistant Attorney General, of counsel), for Respondent.

HIGHWAYS-state is not insurer of persons traveling on its highways.

NEGLIGENCE-Claimant’s burden of proof. Claimant must prove by preponderance of evidence that State breached duty of reasonable care and that negligence flowing from breach proximately caused Claimant’s injury.

HIcHwAYs-automobile collision-death-State had no notice of highway defect-claim denied. Claim for death in automobile collision which was allegedly caused by drop-off between paved portion of highway and shoulder was denied where evidence was conflicting as to whether decedent lost control of his vehicle, crossed lane, and struck oncoming vehicle because of drop-off or because of decedent’s own negligence, and record was devoid [*11] of any evidence that State had actual or constructive notice of alleged defect in roadway. HOLDERMAN, J.

This is a claim brought by Joyce Edwards against the State of Illinois for damages resulting from an automobile accident which occurred on July 11, 1974, at 8:55 p.m., which resulted in the death of her husband, Clarence Edwards. The accident occurred on Illinois Route 132, approximately three-tenths of a mile east of Deep Lake Road in Lake Villa Township, Lake County, Illinois. The vehicle that Claimant’s decedent was operating left the paved portion of the highway onto a gravel shoulder, subsequently re-entered the highway, and collided with a vehicle traveling in the opposite direction.

It is Claimant’s contention that her husbands death was caused by the State’s negligence in designing and

maintaining the highway area in question. Specifically, Claimant contends the State was negligent in allowing the existence of a three- to four-inch drop-off between the paved roadway and the gravel shoulder which allegedly caused Edwards to lose control of his vehicle. The State was also negligent, it is contended, by failing to post a speed limit lower than 55 miles per hour, by failing to post “no passing” signs, by failing to maintain adequate lane width, and by failing to provide adequate street lighting. Claimant seeks damages in the amount of $100,000 for funeral and burial expenses, as well as loss of support for herself and her three minor children.

Both parties in this case have devoted considerable time to the question of whether or not ,there did in fact exist a drop-off as claimed at the point where the Edwards vehicle first left the roadway, and if so, whether it gives rise to negligence by the State. It is Claimant’s contention that the drop-off was considerable and this [*12] caused the decedent to lose control of his vehicle, resulting in his death.

The evidence discloses the decedent had met his brother-in-law, Scott York, at a riding and boarding stable located immediately south of Route 132, a highway which runs in an east-west direction, at and near the accident site. Edwards as the driver, with York as his passenger, left the stables in Edwards’ vehicle and entered Route 132 via the stable entrance near the top of a hill located approximately three-tenths of a mile west of a newly paved section of highway. The Edwards vehicle proceeded east down the hill and onto the newly paved section where the drop-off allegedly existed. Immediately east of the newly paved section, there is another hill. At some point during this short trip, Edwards left the roadway, lost control of his car, and had the fatal collision.

The accident was witnessed by two individuals, Scott York, the passenger in the decedent’s vehicle, and George Davison, the driver of the other vehicle involved in the collision. It is their testimony that is crucial to the resolution of this case. Their versions of the accident differ substantially as to the location where Edwards first lost control as well as the manner by which he did so.

Scott York testified that the vehicle in which he was a passenger and which was operated by Mr. Edwards was proceeding down the hill west of the newly paved portion of the highway. He testified there were about six vehicles proceeding from the other direction, and suddenly one of these cars began passing and was therefore in Edwards’ lane of travel. At the shoulder of the road located at the bottom of the hill where the newly paved portion, and alleged four-inch drop-off began, Edwards [*13] pulled onto the shoulder to avoid a head-on collision with the passing vehicle. York further testified that Edwards’ car immediately began jerking back and forth, went into a slide, re-entered the roadway, and the I accident occurred. His testimony was from the time the I car first left the road and until the collision, Edwards was “fighting the wheel.” York concluded that it was the drop-off that caused Edwards to lose control of his car.

On cross-examination, York was confronted with his testimony given at his deposition during which he testified the Edwards car was going down the hill, that a I black car was coming towards them in the opposite direction, and at this point he closed his eyes and put his 1 head down. He stated he remembered nothing after that. He admitted there was no drop-off or other defect on the hill and that the Edwards car could have left the roadway on the hill and not on the newly paved portion of the highway at the bottom of the hill. He further stated that the Edwards car could have left the roadway more than one time prior to the collision.

George Davison testified he was traveling westbound on Route 132 at the time of the accident. He was proceeding rather slowly in his pickup truck since he was carrying a large load of shingles. He was followed by several vehicles before he reached the top of the hill lying east of the newly paved portion of highway and that a vehicle did pass him at a high rate of speed and proceeded west down the hill. When Davison reached the top of the east hill, he observed the Edwards vehicle I travel across the top of the west hill at a high rate of I speed. At this point, there was no traffic between the Edwards and Davis vehicles. The car that had earlier passed Davison was now out of sight and therefore beyond the Edwards vehicle.

[*14] Davison testified the Edwards car first left the roadway at a point on the west hill and substantially away from the newly paved area, the point where York stated the car entered the shoulder and its drop-off. Davison further testified the Edwards car was traveling down the hill at a high rate of speed, moving erratically and swerving on and off the road. After it re-entered the highway for the third time, it collided with the Davison vehicle head-on in Davison’s lane of travel.

At the point of impact, Davison had slowed his vehicle considerably and moved far to his right because, according to Davison, he was concerned that Edwards was driving on and off the road, making no apparent effort to slow his vehicle down. He further testified there was 1800 feet from the top of the west hill where Davison first observed Edwards drive off the roadway to the point of impact, which did in fact occur on the newly paved portion of the highway lying between the two hills.

It appears, therefore, that the accident was caused by the negligence of Edwards himself. It further appears from the testimony of Davison that Edwards did not leave the road, at least initially, at the drop-off point as claimed by York, whose testimony on this point was substantially impeached by his own words.

In light of Davison’s testimony regarding the high speeds and erratic movement of the Edwards car for some 1800 feet, it is clear that the drop-off was not the cause of the collision but instead this accident was caused by Edwards’ own negligence. The driver of a vehicle that leaves the roadway and enters a lower shoulder is under a duty to take certain steps to safely remove himself from the situation. Edwards clearly did not take reasonable steps to correct the problem in which [*15]

he found himself. The State cannot be held responsible

under these circumstances based upon the evidence

produced at the trial. See Sommer v . State (1952), 21 Ill.

Ct. C1.259; Lee o. State (1964), 25 Ill. Ct. C1.29;Alsup v .

State (1976), 31 Ill. Ct. C1. 315; Hill o. State (1978),32 Ill.

Ct. C1. 482.

This Court has repeatedly held that the State is not

an insurer of all persons traveling upon its highways. See

Bloom v. State (1957), 22 Ill. Ct. C1. 582.

The Court has also laid down the rule that Claimant

must prove by a preponderance of the evidence that the

State breached its duty of reasonable care and that the

negligence flowing from the breach proximately caused

Claimant’s injury. See Brockman o. State (1975), 31 Ill.

Ct. C1. 53; Laine 2). State (1977), 32 Ill. Ct. C1. 10.

There is further evidence in the record that the

drop-off was comparatively minor. Within five to seven

days after the accident, Davison was released from the

hospital and returned to the scene of the accident. He

measured the distance between the point of impact and

the spot where the car driven by Edwards first left the I roadway. It was nearly 1800 feet. He testified that there

was no drop-off between the roadway and the shoulder

at and near the point of impact and along the new I asphalt patch. He stated at a point of about 100 to 200

feet from the crest of this hill, a slight drop-off of

between two and four inches was found.

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The pickup truck that Davison was driving was

struck with such force that it caved in the front end of the

truck, caused the steering column to be driven almost up

to the roof of the cab nearly to the back window, the

shingles in the back caved in the back wall of the cab,

and the collision broke the back of the pickup truck.

[*16] The record is devoid of any evidence to the effect that the State had actual or constructive notice of the alleged defect in the roadway where the accident occurred. The State, in this instance, did not have either actual or constructive notice of any condition that would show it was the proximate cause of the accident.

Claimant having failed to prove the accident was caused by the negligence of the State and the evidence indicating that the cause of the accident was from the acts of decedent, award is hereby denied. Case dismissed.

ORDER O N DENIAL OF REHEARING

H OLDERMAN, J

This matter comes before the Court upon petition of Claimants for rehearing and Respondent’s response to said petition.

Claimants’ petition sets forth, among other things, that the Court ignored the comparative negligence rules of the State of Illinois. The Court did not ignore said rules but was of the opinion there was not any negligence on the part of the Respondent.

It is hereby ordered that the petition of Claimants for rehearing be, and the same is, denied, and the Court’s original decision is affirmed.