Jeffrey F. Bryan v. State of Illinois

OPINION

BIRNBAUM, J.

Claimant, Jeffrey F. Bryan, filed his Complaint sounding in negligence on December 28, 2000. The matter was heard by one of the Court’s Commissioners on December 9, 2004. Claimant, Jeffrey F. Bryan’s, claim is for personal injuries he received due to falling concrete on December 28, 1999 from an overpass while driving a truck on an Illinois highway. Jeffrey F. Bryan’s claim is for $100,000.00 suffered pain, lost wages, medical service expenses and [*257] property damage. The claim is based on the alleged negligence of the Respondent, State of Illinois, by and through its agents and employees was held before one of the Court’s Commissioners on December 9, 2004. This cause coming on to be heard on the Commissioner’s recommendation after hearing, the Court being fully advised in the premises finds:

THE FACTS

On December 28, 1999, Claimant, Jeffrey R. Bryan, a self-employed truck driver, was driving his semi-tractor/trailer in a northerly direction on Interstate 74/55 near mile post 158 in McLean County, Illinois. While driving the semi-tractor/trailer under the Cabin Town Road overpass (Illinois Department of Transportation structure 057-0119), a piece of concrete fell from the underside of the overpass deck and struck the windshield of the semitractor/trailer. As a result of the falling concrete, the windshield on the driver’s side of the truck was shattered and pieces of concrete penetrated the windshield and entered the truck cab. The flying glass struck the Claimant in the face and lacerated his face. The Claimant also suffered a cut in the corneal tissue of his left eye. There is no question that the falling concrete from the underside deck of the bridge overpass (structure 057-0119) caused the accident and injury. It is also clear that the Respondent did not have actual notice of the falling concrete prior to the accident. Rather, the issue is whether the Respondent had constructive notice of the dangerous condition.

The witnesses who testified at the hearing were the Claimant, Jeffrey F. Bryan, Illinois State Trooper Curtis Walch, Vern McDannald, Dan Bryan (the Claimant’s employer), Letha Bryan, Raymond Moore, Robert Pattelli, Eugene Smania, Crystal Bryan (Claimant’s wife), John Dent and Christian McCarter. Also, the Claimant submitted evidence through depositions and stipulation by the parties. This evidence included Claimant’s expert witness Dennis M. McCann and medical physicians Dr. Vanessa L. Pitts and Dr. Kenneth Barba.

For the Claimant, expert witness Dennis M. McCann reviewed national bridge inspection standards together with photographs and inspection reports for the Cabin Town Road Bridge, structure 057-0119, for the period July 1993 through December 1999. Based upon this review, Mr. McCann opined that the deteriorated condition of the deck soffit in question was both known to and documented by IDOT beginning with photographs in July 1993 and continuing through the bridge inspections of December 6, 1996 and January 25, 1999. The 1996 inspection report (additional comments section) showed “transverse cracking with leaching on the deck soffit” and “minor spalls on the longitudinal construction joint with spalls on deck soffit.” The Claimant’s expert found water intrusion or leaching and delamination. Delamination is the cracking of concrete or the separation of the concrete from the reinforcing steel (rebar). These conditions he opined worsen over a period of time.

Mr. McCann further testified that where delamination occurs over a period of time, spalling can occur. Spalling is where pieces of concrete fall from [*258] the concrete surface. Also, the Claimant’s expert noted that IDOT’s December 1996 inspection report noted some deterioration, which should have required more than a visual inspection of the bridge. The Claimant’s expert also noted that the subsequent IDOT March 1998 inspection report reduced the condition rating of the deck from “satisfactory (6)” to “fair (5).” A condition rating of (6) is satisfactory based upon the amount of spalls and delamination, while a condition rating of (5) denotes additional spalls and further delamination had occurred. The condition ratings are based on bridge deck soffit square footage that exhibits spalls and delamination. It was further established that a condition rating of (4) “poor” would give rise to annual inspections rather than inspections every two years.

The Claimant’s expert opined that the 1996 inspection report should have required an additional physical inspection to determine the extent of the concrete degradation along the longitudinal construction joint where the spalling had occurred.

Additionally, the Claimant’s expert witness noted that the January 25, 1999 inspection report revealed that there was “transverse deck cracks/isolated leaching on bottom; back wall cracking.”

Claimant testified with respect to his injuries and loss of wages. As a result of the accident, the Claimant suffered headaches, light sensitivity to his eyes and lack of vision clarity. He was unable to drive for a period of time, and the Claimant did not work for several months. To this day, he wears prescription sunglasses because of light sensitivity. Because he was an independent contractor, the Claimant was not paid by his employer while he was recovering from the accident. There was also testimony from the Claimant’s spouse regarding his injuries. Further, the Claimant’s employer testified with respect to the loss of wages as a result of the accident. Finally, all or portions of evidence depositions from Dr. Pitts and Dr. Barba were admitted into evidence with respect to the Claimant’s injuries and treatment.

More specifically, the evidence depositions show that the Claimant was treated immediately after the accident by Dr. Pitts for corneal abrasions and abrasions to the face as a result of the accident. This treatment occurred at Bromenn Healthcare’s emergency room in Bloomington - Normal, Illinois. Dr. Pitts expected the Claimant/patient to fully recover from his injuries. Subsequently, the Claimant was treated by several physicians, including Dr. Barba, an ophthalmologist at Gailey Eye Clinic. Dr. Barba stated that light sensitivity would be typical for someone with the injuries suffered by the Claimant. Also, Dr. Barba testified that the Claimant’s eye injuries were “well healed”, but that the Claimant may require eye glasses to assist with clarity of vision.

The Claimant seeks a total of $49,848.84 in wage loss, and the sum of $876.19 for medical expenses. Also, the Claimant seeks the amount of $607.07 for truck repairs and towing and the sum of $48,667.90 for pain and suffering and disability. The total for all of these amounts equals $100,000.00.

[*259] For the Respondent, IDOT Bridge Maintenance Engineer for the District 3 Office, Christian McCarter, testified that there is no information or record at IDOT, which documents any falling concrete from the subject bridge. This same witness also testified that this bridge had been inspected in accordance with the requirements of the American Association of State Highway and Transportation Officials (AASHTO). AASHTO requires, as a minimum, inspection every two (2) years. Since the condition of this bridge was rated (5), an inspection is necessary every two years. However, if a bridge condition rating was lowered to a rating of (4), then Mr. McCarter stated that he would personally inspect the bridge structure every year. Respondent’s witness McCarter further testified that if an inspector finds a condition on a bridge that he or she is concerned about, the inspector will complete a “highlighting report” and bring it to a supervisor for immediate attention.

The Respondent established that the IDOT bridge inspectors receive training on an annual basis. This training includes teaching the inspectors with respect to assigned numerical ratings for bridge inspection categories. Witness McCarter testified that based upon his review of the inspection reports for the bridge structure at issue, there was nothing reported which would cause him concern or require immediate attention. Finally, Mr. McCarter opined that the falling concrete was a fluke accident that could not be foreseen and should not have occurred.

With respect to other evidence, the Exhibits marked for identification were as follows:

1. Letter from Attorney General to Ginzkey dated May 24, 2001

and Bridge Inspection Reports.

2. Omitted.

3. Omitted.

4. Picture of deck underside at overpass.

5. July 1993 Picture of overpass - 057-0119.

6. Diary entry of Eugene Smania December 29 (Remove falling

concrete).

7. District 3 Incident Report December 28, 1999.

8. Department of Transportation Health Evaluation.

9. Picture of Damage to Truck.

10. Picture of Damage to Truck.

11. Picture of Damage to Truck.

12. Picture of Damage to Truck.

13. Invoices for Property Damage to Truck and towing.

14. Monthly pay reports detail jobs or loads for a replacement

worker that Claimant would have been working if not injured.

15. Evidence Deposition of Vanessa L. Pitts, MD December 1,

2004.

[*260] 16. Evidence Deposition of Kenneth Barba, M.D. December 1,

2004 (includes medical bills).

17. Deposition transcript of Dennis McCann.

18. Illinois Department of Transportation computer printout

(Bridge Inspection dated January 25, 1999) for structure

number 057-0119).

19. Claimant’s 1995 Federal Income Tax Return.

20. Bridge Inspector’s Highlighting Report for Structure No. 032-

0041 dated January 14, 2004.

- (Not marked for identification - chronology report

prepared by Claimant’s Counsel together with

pictures/reports.) This chronology report was not

admitted into evidence.

Of the Exhibits marked for identification, the exhibits which were wholly admitted into evidence are: Exhibits 1, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 17, (note that Exhibits 15 and 17 are also referred to as Exhibits A and C, respectively, in the hearing transcript) 18, 19, and 20. The Exhibits of which a portion thereof was objected to and stricken include Exhibit 16 (also referred to as Exhibit B in the hearing transcripts). Objections were wholly sustained to Exhibit 8. Subsequent to the hearing and after the presentation of authority, the Commissioner issued an Order dated January 21, 2005, which excluded certain exhibits and testimony from the record. Finally there were no Exhibits 2 and 3 for purposes of identification or offer into evidence.

THE LAW

While the State is not an insurer against all accidents, which may occur by reason of the condition of its highways (Scroggins v. State (1991), 43 Ill. Ct. Cl. 225, 226), it has a duty to maintain highways in “reasonably safe condition” by using reasonable diligence in such maintenance. Wing v. State (1997), Ill. Ct. Cl. 473, 476. To recover on a negligent highway maintenance claim, a Claimant must show that the State had actual or constructive notice of a defect. Piggot v. State (1968), 26 Ill. Ct. Cl. 262, 265-66.

In analyzing the present claim, the threshold question that must be answered is whether the State had actual or constructive notice of the falling concrete and failed to take reasonable steps to correct or warn of the dangerous condition. It is uncontroverted that any injuries sustained by the Claimant occurred as a result of the falling concrete. Here, Claimant did not establish that the State had actual notice of concrete falling from the bridge; however, it is argued that the evidence establishes that the State had constructive notice of the defective condition. State Farm Mutual Insurance Company v. State, 53 Ill. Ct. Cl. 232 (2001).

[*261] Constructive notice is imputed to the State where a condition which by its evidence nature, duration, and potential for harm should necessarily have come to the attention of the State, so that the State should have made repairs. Scroggins, at 227-28. Whether the State had constructive notice of a condition depends on the facts of each case. Stills v. State (1989), 41 Ill. Ct. Cl. 60,62.

IDOT records reveal that the bridge in question was inspected in 1996. That inspection report showed “transverse cracking with leaching on the deck soffit” and “minor spalls on the longitudinal construction joint with spalls on deck soffit.” This bridge was subsequently inspected in March 1998. At that time, the condition rating for the bridge was decreased from a (6) “satisfactory” to a (5) “fair.” The deck drains, superstructure joints, drainage system and concrete cracking elements were initially graded a (3) “fair” in 1996, but downgraded from a (3) “fair” rating to a (2) “poor” rating in March 1998. These ratings remained the same at the time of the January 1999 inspection of this structure. The evidence established that there are different scales for the condition rating and the element rating. The condition rating primarily addresses the load carrying capacity of the bridge. The element ratings and the additional remarks section of the inspection report provide for the identification of specific items, which may require additional actions. The last inspection before the accident was on January 25, 1999, eleven (11) months before the accident. The last inspection report showed in the “additional remarks” section that the structural deterioration of the bridge has been “minimal since previous inspection.”

Respondent argues that it did not have constructive notice of the condition because the inspection reports did not indicate that immediate attention was warranted. The State made similar arguments in Robinson v. State, 35 Ill. Ct. Cl. 185 (1981) and State Farm Mutual Insurance Company v. State, 53 Ill. Ct. Cl. 232 (2001). This Court held that the State could be charged with knowledge of the condition because it had actual knowledge of the deterioration of the underside of a bridge.

In the present case, the State acknowledges that it knew of the deteriorating conditions but that the inspection reports showed that the level and extent of deterioration did not give notice of the need for immediate attention and repair. Notwithstanding the State’s argument, the Respondent knew that the condition, unrepaired, would worsen since delamination and spalls increase over a period of time. Accordingly, the Claimant has established constructive knowledge on part of the State. Also, the fact remains that a piece of concrete fell from the underside of the bridge and caused the accident. It logically follows that the inspection report on January 25, 1999 understated the previously identified deterioration.

The remaining issue is that of damages. A Claimant has the burden of proving his damages with certainty. Gildehaus v. State, 46 Ill. Ct. Cl. 176 (1993). Claimant is seeking damages in the total amount of $100,000.00. The Claimant has established that he is entitled to the sums of $607.07 and $876.19 for truck repair/towing and medical expenses, respectively.

[*262] With respect to loss of wages, the Claimant seeks the sum of $49,848.84. This amount is set forth in Exhibit 14, and it is based on the gross amount paid to another replacement truck driver. However, this amount must be reduced by payments both prior to the accident and after the date the Claimant received eye glasses. Upon the receipt of eye glasses on March 29, 2000, the Claimant admitted that he was capable of returning to work. Therefore, at most, the period for loss of wages is December 30, 1999 through March 29, 2000, or approximately three (3) months, and therefore, the wage gross claim cannot exceed $25,577.40. Also, it is evident that there should be the application of an offset amount to realize the Claimant’s lack of expenses for fuel/oil in this same period. Aside from the variable oil/fuel costs, it appears that other expenses either would occur anyway or were minimal. Based on the Claimant’s year 2000 tax returns and accepting that the Claimant could not work for three (3) months, it appears that the lack of expenditure offset should be $10,495.00. Therefore, the actual amount of wage loss of $25,577.40 should be reduced by the sum of $10,495.00. Accordingly, the Court grants an award of $15,082.40 for loss of wages.

Concerning the Claimants’ request for pain and suffering and disability in the amount of $48,667.90, there was medical evidence of a scratch in the corneal tissue of his eye. Also, the Claimant testified as to light sensitivity, headaches and vomiting. Both he and his wife testified that for weeks following the incident he was homebound with the drapes closed, unable to leave his bed. However, the Claimant did not meet his burden of proof to show permanent disability. Also, while it is clear that there was some pain and suffering, there was no showing or proof of a claim amount solely attributable to pain and suffering. Nonetheless, the Court finds that the Claimant sufficiently demonstrated by the evidence that the injuries caused significant pain and suffering for, at a minimum, several months following the incident. Therefore, we find that the Claimant is entitled to a sum of $18,000.00 for pain and suffering associated with the injuries.

For the above reasons, Claimant is awarded $34,565.66.

IT IS SO ORDERED.