Janel Tranmer v. State of Illinois

ORDER

KAPLAN, J. THIS MATTER coming to be heard on the Respondent’s Motion to Dismiss Claimant’s Complaint at Law, it appearing to the Court that Claimant [*347] has received due notice and the Court being fully advised in the premises, the Court finds: Claimant, Janel Tranmer (“TRANMER”), filed her complaint for damages associated with the loss of her vehicle on June 23, 2005. Within attachments to her complaint, TRANMER alleges the Office of the Secretary of State failed to change the address to which her vehicle was registered to on or about October 1, 2001. This alleged failure prevented TRANMER from receiving notices from the City of Chicago concerning at least three unpaid parking violations associated with her vehicle and its eventual impoundment and loss.

TRANMER alleges she changed her address with the Office of the Secretary of State on or about October 1, 2001, but admits she has no proof to substantiate the allegation. TRANMER’s vehicle was impounded on or about July 17, 2003, and received notice of same by certified mail. The impoundment was found to be justified by an administrative law officer for the City of Chicago on July 16, 2003. Said decisions may be appealed to the Circuit Court of Cook County with thirty-five days by filing suit against the City of Chicago.

Upon information and belief, TRANMER did not appeal said decision to the Circuit Court of Cook County.

On June 21, 2004, TRANMER filed suit in the Circuit Court of Cook County against the City of Chicago and the State of Illinois alleging negligence and seeking monetary damages associated with the loss of her vehicle, 04 MI 138429.

The portion of the suit against the State of Illinois was dismissed by the Circuit Court for want of jurisdiction. On October 4, 2004, the portion of the suit against the City of Chicago was dismissed without prejudice by agreement of the parties.

Court of Claims Rule 790.60 and Section 505/25 of the Court of Claims Act require a claimant to exhaust all other remedies against all other sources of recovery for injury or damages prior to seeking final determination of his claim in the Court of Claims. 74 Ill. Adm. Code 790.60, 705 ILCS 505/25.

Lyons v. State, 34 Ill. Ct. Cl. 268 (1981), clarifies Section 505/25 of the Court of Claims Act and Section 790.60 of the Court of Claims Regulations and states that exhaustion of remedies is mandatory and not a matter for a claimant’s discretion. In Davaney v. State, 46 Ill.Ct.Cl.461 (1996), this Court stated, “exhaustion of remedies is a fundamental jurisdictional requirement which must be satisfied in order for any claim to be brought before this Court and the Court is not at liberty to disregard it.”

TRANMER failed to appeal the July 16, 2003, decision of the administrative law officer in the Circuit Court of Cook County. Furthermore, by agreeing to dismiss her later suit against the City of Chicago, 04 M1 138429, TRANMER again failed to exhaust her alternate remedies. Section 25 of the Court of Claims Act exhaustion requirement does not allow a claimant to voluntarily dismiss a viable cause of action. Hughes v. State of Illinois, 49 Ill.Ct.Cl. 56, 1997 WL 1066499 (1997).

[*348] TRANMER also fails to state a common law negligence action.

Common law negligence consists of a duty owed by the defendant to the plaintiff, breach of that duty, and an injury proximately caused by the breach.

Simmons v. Aldi-Brenner Co., 162 Ill.App.3d 238, 515 N.E.2d 403 (3rd Dist. 1987). Necessary to any recovery based on negligence is the existence of a duty to conform to a certain standard of conduct for the protection of the plaintiff.

Puttman v. May Excavating Co., 118 Ill.2d 107, 514 N.E.2d 188 (1987). It is not sufficient that the plaintiff’s complaint merely alleges that a duty exists the plaintiff must state facts from which the law will raise a duty. Erne v. Peace, 164 Ill.App.3d420, 517 N.E.2d 1203 (2nd Dist. 1987). Whether a legal duty exists is a question of law to be determined by the court. Beal v. Kuptchian, 164 Ill.App.3d 191, 517 N.E. 2d 712 (5th Dist 1987).

Furthermore, the issue of whether there is a duty is broad in its implication, whereas the issue of whether there was negligence is confined to the particular case. Zimmerman v. Netemeyer, 122 Ill.App.3d 1042, 462 N.E.2d 502 (5th Dist. 1984). Whether a legal duty exists involves consideration of more than just foreseeability of possible harm, it involves consideration of legal and social policies, which include the foreseeability and likelihood of the injury, the magnitude of the burden of guarding against the injury and the consequence of placing that burden on the defendant. Erne, 164 Ill.App.3d 420, 517 N.E. 2d 1203. If no duty is found to exist, no recovery is possible as a matter of law.

Beal, 164 Ill.App.3d 191, 517 N.E. 2d 712.

Herein, as a matter of law, the facts alleged by TRANMER, even assuming she properly filed a change of address form, fail to establish Respondent had a duty to protect her from the injury claimed. The injury claimed by TRANMER is too far removed from any type of duty Respondent may have had to accurately record her address and was not foreseeable. The likelihood that a person’s vehicle would be impounded leading to its loss because of a failure to record an apartment number change is slim, if not nonexistent, especially taking into consideration that TRANMER would have had immediate notice of the violations that led to the eventual impoundment of her vehicle. Section 9-64-220 of the Chicago Municipal Code states:

(b) Whenever any vehicle is parked in violation of any provision of the traffic code prohibiting or restricting vehicular parking or standing, any police officer, traffic control aide, other designated member of the police department, parking enforcement aide or other person designated by the city parking administrator observing such violation may issue a parking violation notice and serve the notice on the owner of the vehicle by handing it to the operator of the vehicle, if he is present, or by affixing it to the vehicle in a conspicuous place. The issuer of the notice shall specify on the notice his identification number, the particular parking regulation allegedly violated, the make and state registration number of the cited vehicle, and the place, date, time [*349] and nature of the alleged violation and shall certify the correctness of the specified information by signing his name as provided in Section 11-208.3 of the Illinois Vehicle Code.

This Court takes judicial notice that any violation would have been affixed to her vehicle.

It would be against public policy to find Respondent had a duty to protect TRANMER from this particular injury when she was aware of the violations for which her vehicle was eventually impounded. It would not have been foreseeable to Respondent that a person would violate the law and disregard paying for those violations. It was not Respondent’s alleged failure to change TRANMER’s address that led to the loss of her vehicle, but rather it was her disregard of the notices of violation placed on her vehicle and her disregard of paying the fines. It was TRANMER that violated City of Chicago parking ordinances. It was TRANMER who disregarded the violations. It was TRANMER that failed to pay the requisite fines. Given TRANMER culpability in her own loss, it would be against public policy and fairness to determine Respondent had a duty to protect TRANMER from this particular injury.

IT IS HEREBY ORDERED that the motion of the State of Illinois is granted and Claimant’s Complaint at Law is dismissed with prejudice.