Patsy S. and Larry R. Hughes v. State of Illinois

OPINION

KAPLAN, J.

The Claimants, Patsy S. Hughes and Larry R. Hughes, filed their Complaint sounding in negligence in the Court of Claims on December 4, 1995. Count I of the Complaint alleges that the State of Illinois was responsible for the maintenance of a stop sign at an intersection, but failed to replace a damaged stop sign. As a result, there was a traffic accident at the intersection, and the Claimant, Patsy S. Hughes was injured due to the State of Illinois’ negligence. Count II of the Complaint makes the same allegation, but the Claimant, Larry R. Hughes, claims damages due to loss of consortium as a result of the injuries to Patsy S. Hughes. The Claimants seek substantial damages. The cause was tried by one of the Court’s Commissioners on June 30, 2004.

EVIDENTIARY OBJECTIONS AND RULINGS

At the hearing, the Claimants marked for identification the following Exhibits:

Claimants’ Exhibit 1 - Discovery deposition of truck driver, Steven Karl

Wunder, from related State Court case.

Claimants’ Exhibit 2 - Discovery deposition of state employee, Jack E.

Ward, from related State Court case.

Claimants’ Exhibit 3 - Discovery deposition of police officer, John Trefz,

from related State Court case.

Claimants’ Exhibit 4 - Discovery deposition of state employee, Carroll

Phillips, from related State Court case.

[*185] Claimants’ Exhibit 5 - Video evidence deposition of Dr. Lynn Juracek,

M.D., from related State Court case.

Claimants’ Exhibit 6 - Video evidence deposition of Dr. Robert J. Burkle,

M.D., from related State Court case.

Claimants’ Exhibit 7 - Video evidence deposition of Dr. Wilbur A. Neil,

M.D., from related State Court case.

Claimants’ Exhibit 8 - Video evidence deposition of Dr. Belarmino T.

Frogozo, M.D., from related State Court case.

Claimants’ Exhibit 9 - Medical itemization summary report for Claimant,

Patsy Hughes.

Claimants’ Exhibit 10 - Two (2) pictures of damaged stop sign at

intersection of Vine and Route 1.

Claimants’ Exhibit 11A - Discovery deposition of Claimant, Patsy S.

Hughes on June 17, 1997.

Claimants’ Exhibit 11B - Discovery deposition of Claimant, Patsy S.

Hughes on April 22, 2004.

Claimants’ Exhibit 11C - Discovery deposition of Claimant, Patsy S.

Hughes on February 12, 1996.

The Respondent objected to all of Claimant’s Exhibits except for Exhibits 2 and 4. Exhibits 2 and 4 were admitted into evidence. The Commissioner sustained Respondent’s objections to Exhibits 1, 3, 11A, 11B and 11C. The Commissioner overruled Respondent’s objections to Exhibits 5, 6, 7, 8, 9 and 10.

In its brief, the Respondent renewed its objections to the admission of the evidence depositions from medical doctors in a prior case. These objections are based on the fact that the Respondent was not a party to the prior case and did not have the opportunity to cross examine the physicians. Also, the Respondent’s objections are based on the fact that the evidence depositions were taken several years before the hearing before this Court.

The Court has reviewed the commissioner’s post-trial ruling dated July 21, 2004, which allowed the video evidence depositions of four (4) physicians from a related State court case, being Claimant’s Exhibits 5, 6, 7 and 8. Claimants’ Exhibit 5 is a video evidence deposition of Lynn Juracek, M.D. taken July 25, 1997 in the case, Patsy S. Hughes and Larry R. Hughes v. Steven K. Wunder, Mid-States Express, Inc. and Kathleen M. Horsley, Case No. 95-L-5, Circuit Court of the Fifth Judicial Circuit, [*186] Clark County, Illinois. Claimants’ Exhibits 6 and 7 are videotaped evidence depositions of Robert J. Burkle, M.D. and Wilbur A. Neil taken July 31, 1997 in the same case, respectively. Claimants’ Exhibit 8, is a videotaped evidence deposition of Belarmino T. Frogozo, M.D. taken August 6, 1997 in the same case.

Upon review the Court finds that it is compelled to sustain Respondent’s objections to Claimants’ Exhibits 5, 6, 7 and 8 pursuant to the case, Knight v. Lord, 271 Ill. App. 3d 581, 648 N.E. 2d 617 (4th Cir. 1995) wherein a Court ruled that physicians’ evidence deposition testimony, based on examination that occurred at least 28 months before trial, were properly excluded. In our case, the videotaped evidence depositions were introduced at hearing approximately seven (7) years after the examinations and testimony in a prior case. Accordingly, Claimants’ Exhibits 5, 6, 7 and 8 are inadmissible.

The Court further notes that the admissibility of Claimants’ Exhibits 5, 6, 7 and 8 would have been better addressed prior to the hearing. However, Claimants did not adhere to the Scheduling Order dated January 16, 2004 and identify their Rule 213(f) witnesses and the method by which this expert testimony would be introduced at hearing. As a result, the Respondent did not respond with an objection and this evidentiary matter was addressed for the first time at the hearing.

FACTS

At about 4:00 p.m. on January 9, 1995, the Claimant, Patsy S. Hughes, was a passenger in Kathy Horsley’s 1991 Oldsmobile when there was a traffic accident at the corner of Vine and Route 1, Marshall, Illinois. The Claimant, Patsy S. Hughes, and Kathy Horsley carpool between their home in Marshall, Illinois and Redmon School in Paris, Illinois. They were returning home from teaching at Redmon School in Paris, Illinois when their car collided with a truck driven by Steven Karl Wunder for MidStates Express Trucking Service. The Claimant was traveling East on Vine Street. There is a stop sign for traffic traveling East on Vine Street, but the sign had been bent downward sometime prior to January 9, 1995. As a result of the damage to the stop sign, and for other reasons, the truck driver did not stop at the intersection of Vine and Route 1. Instead, the truck turned onto Route 1 and collided with the car in which the Claimant, Patsy S. Hughes, was a passenger.

The Claimant, Patsy S. Hughes, testified that the weather was cold and cloudy on the day of the accident. Patsy S. Hughes also testified that the roads were clear of snow and ice, but there was an accumulation of snow on the ground from a previous snow. Also, Patsy S. Hughes testified that the stop sign was bent a week prior to the accident, but she did not notify the Respondent of the damage.

Patsy S. Hughes further testified that she was grading papers at the time of the accident, and that she remembered Kathy (Horsley) saying “I don’t think he’ll stop” just before the collision.

Also, Patsy S. Hughes testified that she subsequently brought actions against the truck driver and his employer. Ms. Hughes collected the sum of $51,450.70 from the truck driver and his employer. Further, Patsy S. Hughes brought an action against Kathy Horsley, the driver of the vehicle in which she was a passenger at the time of the [*187] accident. As a result of this action, Ms. Hughes collected an additional sum of $5,000.00 from Kathy Horsley’s insurance company.

The Claimants have requested the sum of $100,000.00 from the Respondent.

Finally, the Claimants’ requested that the Court take judicial notice of paragraphs 3, 4 and 5 in Respondent’s Motion for Summary Judgment filed April 24, 2000. The parties stipulated to paragraphs 4 and 5 in that “Respondent does not dispute that the accident occurred at the time and place indicated in the Complaint, nor does Respondent dispute that the permanent stop sign located at the intersection where the accident occurred was not upright at the time of the accident. The only issue in this case is the question of whether Respondent was under a duty and breached a duty to maintain the stop sign at the intersection in question on the date of the accident.”

There was no evidence before the Court as to the exact date that the subject stop sign was damaged or the date that the Respondent was notified of the damaged stop sign.

THE LAW

The State is not an insurer of the conditions of the highways under its control but does have a duty to the public to use reasonable care in maintaining its roadways. Cataldo v. State, 36 Ill.Ct.Cl. 23 (1983). To prevail, the Claimant must prove the State was negligent, that the negligence of the State was the proximate cause of the injury, and that the State had actual or constructive notice of the alleged defect in the roadway where the accident occurred. Edwards v. State, 36 Ill.Ct.Cl. 10 (1984). The Court will also consider comparative negligence of the Claimant in adopting an award. Alvis v. Riber, 85 Ill. 2d 1 (1981); Guffey v. State, 40 Ill.Ct.Cl. 179 (1987); Koepp v. State; 46 Ill.Ct.Cl. 344 (1993).

The State also had a duty to maintain road signage, including stop signs. In order to prevail, the Claimants must meet the same burden of proof set forth above.

In order to sustain its burden in proving the Respondent’s negligence, the Claimants must prove that the Respondent had a duty to them, and that the Respondent breached a duty owed to the Claimant. The Claimants failed to meet their burden of proof.

In the case at bar, there was insufficient evidence in the record that the Respondent had either sufficient actual or constructive notice of the damaged stop sign, to constitute negligence. The mere fact that a dangerous condition existed is not, by itself, sufficient to constitute an act of negligence on the part of the Respondent. The traffic accident occurred at approximately 4:00 p.m. on January 9, 1995. Notwithstanding the testimony of the Claimant, Patsy S. Hughes, that the stop sign had been damaged for approximately one week before the accident, the evidence through the testimony of state employee, Carroll Phillips, shows that the Respondent only became aware of the condition of the stop sign a mere eight (8) hours earlier at 7:10 a.m. on January 9, 1995. The Claimants did not present any evidence that the Respondent had notice of the damaged stop sign prior to this date and time. In a case with similar facts, this Court ruled in Pyle v. Illinois, 29 Ill.Ct.Cl. 133, 135 (1973) that [*188] the State did not have a duty to repair a stop sign within twenty-nine (29) hours of being notified that it was knocked down. In another similar case, this Court ruled that seventy-two (72) hours is a sufficient amount of time to fix a possible problem and not to do so within this amount of time is negligent. Adams v. Illinois, 35 Il.Ct.Cl. 216, 221 (1981). An application of this case law to the facts of our case support a finding that the Respondent is under no duty to repair a stop sign within eight (8) hours of notice. Accordingly, there could be no breach of any duty and no negligence.

Since the Claimant, Patsy S. Hughes, did not prevail on Count I of her Complaint, there is no need to address Count II of the Complaint.