Chris and Regina Beggs v. State of Illinois

OPINION

JANN, J.

Claimants, Regina Beggs and Christ Beggs, bring this action against the State of Illinois alleging negligence of the State through its employees of the Office of the Illinois Secretary of State at the Metropolis Driver’s Service Facility causing injuries and damages to Claimants. This Court has jurisdiction pursuant to 705 ILCS 505/8. Trial was held before Commissioner Patricia Murphy.

FACTS

Regina Beggs visited the Metropolis Driver’s Service Facility (“facility” on April 27, 2001 for the purpose of taking a motorcycle performance test to obtain her class “M” motorcycle license. She first attempted the test on the morning of April 27th using her own motorcycle and failed.

Mr. Ken Turner, the facility manager who had administered the first test to Mrs. Beggs, advised her after she had failed the test that she could try the [*298] test again on a smaller motorcycle. The parties dispute whether Mr. Turner specifically advised Mrs. Beggs where she could obtain a smaller motorcycle for purposes of re-taking the performance test.

Mrs. Beggs returned to the facility that same afternoon on a smaller motorcycle (sometimes referred to as a “scooter”) and was given the same performance test by a different facility employee, Florence Overmark. While performing the maneuvers required by the test on her second attempt using a smaller motorcycle, Mrs. Beggs fell and was seriously injured. In this suit, she seeks compensation for her injuries and damages. Mr. Chris Beggs, husband of Regina Beggs, seeks compensation for loss of consortium arising from the injuries to his wife.

CLAIMS AND DEFENSES

Mrs. Beggs Alleges that the State was negligent though the acts of its employees at the Metropolis facility in one or more of the following ways:

1) Mr. Turner negligently instructed Mrs. Beggs to take the

examination on an unfamiliar motorcycle,

2) Ms. Overmark negligently instructed Mrs. Beggs to

unnecessarily repeat a maneuver at a faster speed when Mrs.

Beggs had already passed the examination,

3) Mr. Turner failed to properly supervise and/or instruct Ms.

Overmark on how to correctly administer the motorcycle

examination,

4) The facility testing course did not meet the standard testing

course size as required by the state guidelines.

In defense, Respondent claims that Mr. Turner advised Mrs. Beggs that a smaller motorcycle (i.e., 150cc’s or lower) could be used to perform the test but did not specifically instruct Mrs. Beggs on which motorcycle to use or where to obtain such. It is Respondent’s position that Mrs. Beggs decided to retake the examination using a motorcycle of her choice knowing that she was unfamiliar with that motorcycle. Respondent also claims that Ms. Overmark was an experienced examiner who correctly administered the test to Mrs. Beggs. Claimants submitted no evidence that Mr. Turner failed to properly supervise or instruct Ms. Overmark. Finally, Respondent claims that the test course size meets requirements and that Claimant’s fall had nothing to do with the court dimensions. According to Respondent, Mr. Beggs’ claim for loss of consortium must necessarily fail because Mrs. Beggs should not prevail on a claim of negligence against the State due to the lack of proofs.

I. Claimed Procedural Errors

Claimants assert they were wrongfully denied the opportunity to call and present witnesses. At the hearing of this case, the Claimants’ attorney announced for the first time that she intended to call as “adverse witnesses” the [*299] State’s disclosed witnesses in her case-in-chief. Counsel for Respondent objected citing grounds that no such designation or disclosure had been made by the Claimants’ attorney in any pleadings in violation of Supreme Court rule 213.

Relying on Shubak v. Lutheran General Health Care Systems, 339 Ill.App.3d 30 (2003), Claimants’ attorney argued that such a disclosure of adverse witnesses was unnecessary because those witnesses were on the Respondent’s witness disclosure list. However, Shuback does not hold that nondisclosure of witnesses (whether adverse or not) is permissible when disclosed by the opposing party. Instead, the Shubak Court addressed proper use of undisclosed opinions and documents, not the identity of the witness.

Supreme Court Rule 213 is clear and unambiguous that a party must identify whom they intend to call at trial and the rule contains no exception for adverse witnesses. In any event, Claimants’ attorney was given the opportunity during the Respondent’s case to cross-examine the same witnesses she intended to call in her case-in-chief but had failed to properly disclose.

Also at the hearing, Claimants’ attorney elicited on direct examination of Mrs. Beggs certain statements allegedly made by Mr. Turner. Respondent objected to Mrs. Beggs’ testimony regarding a particular statement by Mr. Turner as hearsay. Claimants’ attorney argued that since Mr. Turner is a party, any statements made by him are admissible as party opponent admissions so long as those statements made by a party are relevant to the claims at issue. Claimants’ attorney is correct. However, the particular statement challenged by Respondent pertained to an insurance card and the model year of the motorcycle which is irrelevant to any issues in this case. Mr. Turner’s familiarity with the suggested motorcycle (as alleged by Claimants) does not create liability as discussed below. Therefore, Respondent’s objection was properly sustained notwithstanding the Commissioner’s misnomer “statement against interest” instead of the correct term of “party admission”. We affirm the ruling.

II. Analysis

To recover damages against the State for negligence, Claimant bears the burden of establishing by a preponderance of the evidence the existence of a duty, a breach of that duty and an injury that was proximately caused by such breach. Thornburg v. State, 39 Ill.Ct.Cl. 139 (1986). The State owes a duty of ordinary care to keep its property reasonably safe for the benefit of those who come upon its property as invitees and to warn them of hazardous conditions not readily apparent. Turner v. State, 53 Ill.Ct.Cl. 139 (1999).

Claimants presented no evidence to support their theory of negligent training and supervision of State employee Overmark, thereby leaving three allegations of negligence as follows:

A. Mr. Turner’s Suggestion

The testimony of record is conflicted as to whether Mr. Turner had specifically suggested to Mrs. Beggs which motorcycle to use if she decided to [*300] retake the examination after initially failing on her personal motorcycle. Assuming Mr. Turner had given Mrs. Beggs information where to obtain a certain motorcycle for retaking the examination as alleged by Claimants, the decision to use an unfamiliar motorcycle for retaking the examination ultimately rested with Mrs. Beggs. Clearly, whether Mrs. Beggs decided to retake the examination, where she decided to retake the examination, when she decided to retake the examination and which motorcycle she used to retake the examination were all decisions solely made by Mrs. Beggs. Even if Mr. Turner offered a suggestion or other information regarding the use of a particular motorcycle, he breached no duty owed to Mrs. Beggs by doing so.

B. Ms. Overmark’s Administration of the Performance Test

Mrs. Beggs claims that Respondent, through the actions of its employee Overmark, should be liable for making her repeat the eighth and final required exercise of the examination at a higher, “unsafe speed”.

Ms. Overmark testified with certainty and nearly twenty years of experience administering hundreds of examinations that Mrs. Beggs had not successfully met the timing requirements of the eighth exercise because her performance was below the timing charts established for licensing. Even though Mrs. Beggs had initially completed the eighth exercise without incident, it was not completed at a successful speed. Therefore, Ms. Overmark requested Mrs. Beggs repeat the eighth exercise at a higher speed to register within the timing charts. It was in this exercise that Mrs. Beggs fell and was injured.

Because Mrs. Beggs had not successfully completed the eighth exercise in a timely manner, the testing was incomplete. It was reasonable and required that Mrs. Overmark request the exercise be repeated by Mrs. Beggs at the required minimum speed to allow Mrs. Beggs to pass for licensing. There is no evidence that the required minimum speed, albeit higher than her first attempt of the eighth exercise, on the performance test is an unsafe or unreasonable requirement as established. No evidence exists to support that Claimant had “passed” for licensing before her fall.

C. Test Course Size

Whether the dimensions of the motorcycle performance test course comply with applicable standards was disputed by the witnesses. Specifically, the witnesses disagreed whether the course was four feet smaller than recommended standards. Even if the test course were smaller in size (an issue specifically contradicted by Respondent’s witnesses), there is no evidence that the size of the course played a role in causing Mrs. Beggs to fall. Therefore, the test course size could not be a proximate cause of Mrs. Beggs’ injuries and is irrelevant to negligence.

Mrs. Beggs presented evidence of injuries to her left leg and knee as well as her right wrist and forearm. Her injury required surgical repairs to her knee. She incurred substantial bills for medical care and hospitalization. Further, she lost wages as a result of her injuries.

[*301] CONCLUSIONS

Claimants have failed to prove that Respondent was negligent in the administration of a licensing skills test or that Mrs. Beggs was in any manner required to retake the examination she had previously failed on the same day. There is no proof Mrs. Beggs was forced to repeat the test on an unfamiliar motorcycle.

Illinois law requires a Claimant act with due care for his own safety under the doctrine of comparative negligence.

The Court has previously decided a claim arising under similar circumstances in Foster v. State (1990) 43 Ill.Ct.Cl. 210. Mr. Foster was injured while executing a motorcycle test maneuver when his knee struck a metal post a few feet from the boundaries of the test course after losing control of his motorcycle. The Court held Respondent was negligent in failing to remove a foreseeable risk from close proximity to the test course. Judge Raucci opined that “it is foreseeable that some portion of the persons attempting to qualify for a license will fail, and that a hazard within two feet of the course is unreasonable close when falls or loss of control are both probable and predictable by inexperienced cyclists”.

The Court in Foster, Id. found the Claimant’s failure to become familiar with the motorcycle he used for the test and his inability to control the motorcycle, were contributory and proximate causes of his injury. The award was reduced for comparative negligence.

In Mrs. Beggs’ claim, the preponderance of the evidence supports a finding that the sole proximate cause of both her injuries and her husband’s claims for loss of consortium was Mrs. Beggs’ lack of familiarity with the test vehicle, and resultant failure to control the motorcycle.

For the foregoing reasons, all claims are hereby denied and judgment is entered for Respondent on all counts. These claims are dismissed with prejudice, and forever barred.