Robert E. Howard v. State of Illinois

This cause coming on to be heard on the motion of Respondent to dismiss, and due notice having been given, and Claimant having failed to respond to said motion, and the Court being fully advised in the premises; It is hereby ordered that this cause be, and hereby is, dismissed.

ORDER ON MOTION T O VACATE

POLOS,C.J. This cause coming on to be heard on the motion of Claimant to vacate this Court’s order of April 14, 1978, dismissing this cause, and the response of the Claimant thereto, and the Court being fully advised in the premises; It is hereby ordered that this Court’s order of [*6] April 14, 1978, dismissing this cause, be and hereby is vacated.

It is further ordered that Claimant be, and hereby is, granted leave to file a memorandum in opposition to Respondent’s motion to dismiss, instanter.

It is further ordered that this cause be set down for oral argument on Respondent’s motion to dismiss.

ORDER ON MOTION TO DISMISS

POLOS,C.J. This cause is before the Court on the motion of Respondent to dismiss the complaint, for failure to state a cause of action upon which relief can be granted.

On consideration of such a motion, the wellpleaded allegations of the complaint must be accepted as true. In substance, Claimant alleges that on November 28, 1974, he was operating a motor vehicle in a southerly direction over Route 180, near Williamsfield, Illinois. It is further alleged that it was the duty of the State of Illinois to erect and maintain warning signs upon Illinois Route 180, and that in breach of its duty the State failed to erect and place a sign indicating that a deer crossing existed across the highway, although the State knew, or in the exercise of reasonable care, should have known, that deer were known to cross at that location.

It is further alleged that as Claimant traveled along the highway a large deer jumped in front of his vehicle, which collided with the deer and caused injury to the Claimant.

Respondent has moved to dismiss, arguing that the State of Illinois was under no statutory duty to post signs warning of a deer crossing at the accident scene.

[*7] However, as the Court said in Hout v . State, 25 Ill.

Ct. C1. 301: “. . . although the State is not an insurer of the safety of persons in the lawful use of the highways, it is nevertheless under a duty to give warning by the erection of proper and adequate signs at a reasonable distance of a dangerous condition of which the State had notice, either actual or constructive.”

Claimant has alleged that the State had actual or constructive notice of the fact that deer were frequently known to cross at the accident site. Claimant has further alleged that the Department of Conservation records show concentrated and consistent road kill of deer at that location, and that the State otherwise had reason to know of the concentration of deer at the accident site.

While the Claimant may bear a heavy burden to show that the State was negligent in failing to erect deer crossing signs at the scene of the accident, we cannot say that there are no set of facts under which he could prevail. We therefore find that the complaint does state a cause of action, and the Respondent’s motion to dismiss is hereby denied.

OPINION

RAUCCI, J. The Claimant, Robert E. Howard, brings this action against the State of Illinois, seeking recovery of money damages for injuries suffered in a deer-automobile accident on November 28,1974. Claimant struck a deer on Illinois Route 180 in Knox County, Illinois. He seeks to recover damages from the State of Illinois for injuries sustained when striking the deer, based upon a theory that the State should have posted deer crossing signs in the area where he struck the deer.

[*8] Evidentiary hearings were held on August 25, 1982, and February 10,1984. Counsel for the Claimant and the Assistant Attorney General were present throughout the course of these hearings. In addition, evidentiary depositions were taken and submitted by Claimant.

Both parties have submitted their briefs and arguments.

The sole issue presented is whether the State of Illinois had a duty to erect a deer warning sign at or near the site of the accident. Claimant relies upon section 11-303 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95%,par. 11-303), as the basis for recovery in this action.

The record reflects that on November 28, 1974, at approximately 2:OO a.m. the Claimant was driving southbound on Illinois Route 180 approximately 2?Lmiles north of Williamsfield, Illinois. Claimant had driven this route on numerous occasions. The collision took place while he was driving south on the two-lane road. On the aforesaid date, the speed limit for that road was 55 miles per hour. The Claimant, prior to the impact, had been going at a top speed of 50 miles per hour.

The collision site was a two-hilled wooded area with some timber and brush. While the Claimant was driving at the aforesaid location, suddenly and without warning, two large deer jumped in front of the Claimant’s car while he was traveling about 50 miles per hour. At the top of the hill, the first deer jumped over the car but did not actually strike the vehicle. The second deer, however, came in contact with the Claimant’s vehicle, causing a violent collision and serious injury to the Claimant.

The record reflects that an Illinois Department of Transportation engineer, Steve Van Winkle, was the [*9] District Traffic Engineer for District 4, including Knox County, from 1974 to 1976. He testified that he would not consider putting up a deer sign in a particular area unless he had a positive recommendation from the Department of Conservation. The Department of Transportation would rely solely upon the recommendation of the Department of Conservation in determining whether to put up a deer sign. During the time that he had responsibility for District 4, the Department of Transportation erected no deer signs for District 4.

Forrest Loomis of the Department of Conservation is the top State official in Illinois as it relates to deer management and road-deer mortality. He testified that it is the policy to discourage use of deer signs due to their ineffectiveness. He further testified that thousands of deer are killed on the roads of Illinois each year. In November of 1974, Forrest Loomis did not recommend the posting of deer signs anywhere in his area of responsibility, including Knox County, Illinois. Loomis has never recommended to the Department of Transportation that it install deer warning signs anywhere in Illinois.

Dr. Allan Wolff testified as an expert in the field of wildlife science and natural resources management on behalf of the State of Illinois. Dr. Wolff was of the opinion that deer warning signs are ineffective and do not reduce the incidence of deer-automobile collisions.

Further, the record reflects that the Department of Transportation’s policy is not to put up additional deer warning signs due to their ineffectiveness.

Claimant’s expert witness, Lester Kollom, a safety engineer for the U.S. Postal Service, testified that the history of the physical location in question, the type of [*10] road, the type of vegetation and the road environment which forms a valley would be attractive to deer. He further testified that certain precautions such as fences and guard rails should have been placed along Illinois Route 180. However, he was unaware of the nationally published studies on the effectiveness of deer warning signs.

Section 11-303 of the Illinois Vehicle Code (Ill.

Rev. Stat. 1973, ch. 95%, par. 11-303) provides in pertinent part as follows: “(a) The department shall place and maintain such traffic-control devices, conforming to its manual and specifications on all highways under its jurisdiction as it shall deem necessary to indicate and to carry out the provisions of this Chapter or to regulate, warn or guide traffic.” (Emphasis added.)

It is clear that this statute is discretionary and not mandatory. It allows the State to place such traffic control devices “as it shall deem necessary.” If the State of Illinois does not deem it necessary to post deer signs on Route 180, it is not required to do so under the statute, since section 11-303 is purely discretionary in nature.

Thousands of deer are killed on the roads of Illinois every year and to suggest that the State should be liable each time a motorist strikes a deer because the State did not post a deer sign at that particular location, is contrary to the intent of the statute granting the government discretion in the posting of deer warning signs.

In Sherarv. State (1965),25 111. Ct. C1.256, Claimant sued the State for failure to post a “Stop Ahead” sign at an approach to an intersection. In that case, we cited the former equivalent of section 11-303 of the Illinois Vehicle Code and held that the failure to maintain a sign did not constitute negligence.

[*11] The judgment as to whether it is necessary to place deer signs in certain places on the thousands of miles of State highways is discretionary. To interfere with such discretionary decisions of State government would unduly interfere with the governmental functions of the State and would place an unreasonable burden upon the State. The State is immune from liability or negligence in the performance of discretionary duties. Fluim v . State (1975), 30 Ill. Ct. C1. 634.

In the absence of statutory provisions to the contrary, there can be no recovery against the State or a municipal corporation for injuries caused by negligence in the exercise of functions which are essentially discretionary or governmental in nature, although liability may attach for acts which are ministerial in nature.

Based upon the evidence submitted, it is clear that the decision to post deer warning signs at a particular location is an exercise of a governmental function in determining whether such signs are necessary. Therefore, the particular State agency involved in that decision-making process is held immune from liability for accidents claimed to have been caused by its failure to erect a deer warning sign. This principle is reaffirmed in Locigno v . City of Chicago (1961),32 Ill. App. 2d 412, 421, in which the court held that the regulation of traffic is a governmental function.

In the instant case, since the State did not undertake to place deer signs on Route 180, it may not be held liable. The State created no danger on the highway and the highway was not defective. As such, the State had no duty to post deer warning signs at the location in question.

[*12] It is therefore ordered, adjudged and decreed that the complaint is dismissed, with prejudice.

( No . 77-CC-1251-Claimants awarded $85,000.00.)

J ANE and JOHN DOE, Claimants, v. THE STATE OF ILLINOIS, Respondent.

Opinion filed August 4,1986 & SHEFFLER, for Claimants.

PELINI, CREWELL

NEIL F. HARTIGAN, Attorney General (SUE MUELLER, Assistant Attorney General, of counsel), for Respondent.

NEGLIGENCE-state may be held liable under respondeat superior. In an action arising from the negligence, malfeasance, or misfeasance on the part of a State agent or employee, the State may be held liable under the doctrine of respondeat superior.

SAME-sexual molestation by negligently placed ward-respondeat superior-award granted. Under the doctrine of respondeat superior, an award was granted to licensed foster parents whose child was sexually molested by a ward of the State who was temporarily placed in the foster parents’ home, since the record established that agent of the State who made the placement negligently failed to inform the foster parents of the ward’s prior history of aggressiveness, behavioral disorders and homosexuality, and that negligence was the proximate cause of the damages resulting from the attack.

MONTANA, C.J. This is a claim for psychological, behavioral and physical damage suffered by the child of licensed foster parents who was sexually molested by a ward of the Respondent’s Department of Children and Family Services (hereinafter referred to as DCFS) that was temporarily placed in the household of the foster parents. A hearing was not held in this matter, however a stipulation of facts was filed along with an additional stipulation of facts and, pursuant to an order entered in [*13]

I

November of 1982, certain other documents were allowed into evidence. A brief was filed by the Claimants, but the Respondent failed to file any brief although ordered to do so by the commissioner. The commissioner has duly filed his report and the matter is now before the Court for a decision.

Mr. and Mrs. John Doe were licensed foster parents with DCFS. They had several sons, one of whom was Tom, a seven-year-old who resided with them and of whom DCFS was aware. On July 17,1975, a caseworker for DCFS inquired of the Does whether they would agree to be temporary foster parents for Richard D. Campbell, Jr., an 18-year-old ward of DCFS. This caseworker was familiar with the Doe’s family situation.

During the conversation Jane Doe asked the caseworker whether there was anything about Campbell which she should know and the caseworker said no. Relying upon the caseworker’s representations, the Does agreed to be temporary foster parents for Campbell. On July 18, 1975, a different caseworker for DCFS dropped Campbell off at the Doe household. Upon his placement in the Doe household, Campbell was told by the Does that he would sleep in the same room with their son, Tom.

On more than one occasion during the evenings of July 19-20 and 20-21, 1975, Campbell sexually molested Tom Doe in the bedroom of the Doe home occupied by Campbell and Tom Doe. Jane Doe contacted the DCFS office in Champaign, Illinois on July 21, 1975, and requested the removal from her household of Campbell because of the sexual assaults made upon her son by Campbell. Instead of taking immediate action upon receiving such serious allegations representatives of DCFS advised her that Campbell could not be removed [*14] from her household on that day and he would have to spend yet another evening in her household. On the evening of July 21-22, 1975, Richard D. Campbell, Jr. still resided in the Doe household. On July 22, 1975, representatives of DCFS removed Campbell from the Doe household.

On July 29, 1975, Campbell was charged by indictment with the offense of indecent liberties with a child in that he had performed a lewd fondling or touching of Tom Doe, a minor under the age of 16 years, with the intent to arouse or satisfy his sexual desires, which indictment was filed in the Circuit Court of Champaign County, Illinois, in the cause entitled “The People of the State of Illinois v. Richard D. Campbell, Jr., 75-X-1123, Champaign County, Illinois.” Campbell entered a plea of guilty to the charge on October 29, 1975.

After careful and lengthy review of the record, we find that we agree with the Claimants’ assertion that the Respondent, through its agent, DCFS, was negligent in failing to inform the Does prior to the placement of Richard D. Campbell, Jr., in the Doe household that Campbell had a prior history of aggressiveness, behavioral disorders, and homosexuality and that the negligence of DCFS was the proximate cause of the damage suffered by Tom Doe. The record indicates that the caseworker for DCFS responsible for placing Campbell with the Does was aware that Campbell had a propensity for aggressiveness, behavioral problems and homosexuality and that Campbell would be sharing a room with one of the Doe sons, yet he failed to inform the Does that Campbell had any problems of which they should be aware. He knew or should have known that he had a responsibility to provide the Does this informa[*15]tion, but negligently failed to do so and under the doctrine of respondeat superior the State of Illinois can be held ultimately responsible for malfeasance, misfeasance or negligence on the part of its agents and employees. See, e.g., MaZZoy 0. State (1949), 18 Ill. Ct.

C1. 137.

According to the record, including the evidence deposition of the Claimants’ expert witness, a counseling psychologist who had evaluated him, Tom was a typical well-adjusted seven-year-old until Campbell was placed in the Doe home as a foster child. Since that time Tom had many psychological problems which are not necessary to describe for purposes of this opinion. The problems were serious and did affect his relationship with others, and in particular with his family. He seems to have made much progress in overcoming these problems during early adolescence. Although the extent of the problems remaining was not capable of being exactly identified, it was clear seven years after the I incidents that he still had a habit disorder which would affect his relationships with others and likely suffered from other problems associated with the trauma. The record seems to indicate that counseling has been discontinued. As for a prognosis, it could not be said that he would recover completely from the experience nor was there any certainty that other problems would not manifest themselves later on in life.

Although out of pocket expenses were stipulated to be only $1,477.80, the severe impact on the victim is undeniable. Affixing a monetary award in such a case is most difficult. Our research has revealed little. After much deliberation it is our decision to award $85,000.00 in compensation in this claim.

[*16] It is hereby ordered that the Claimants herein are awarded $85,000.00 of which $1,477.80 is for John Doe and Jane Doe individually and the balance is for them as parents and guardians for the use and benefit of Tom Doe. It is further ordered that the record in this matter be sealed and the names John, Jane and Tom Doe be substituted for the parents and their son, respectively, in the reported decision in this matter.