Metlife Auto and Home Insurance Company A/s/o Carolyn Mizell v. Illinois Department of Central Management Services

OPINION

Sprague, C.J.

Claimant filed a Complaint for monetary damages as a subrogee of Carolyn Mizell. The Complaint alleges that an Illinois Department of Central Management Services/Illinois State Highway Patrol employee negligently struck the rear of Mizell’s vehicle causing property damage and personal injuries. A hearing was held before Commissioner Patricia Murphy on August 3, 2006. Joe Leberman represented Claimant, and Assistant Attorney General Bradley Bucher represented Respondent.

I. Background

On May 25, 2005, Mizell was struck by a State Police vehicle operated by Illinois State Trooper Michael Alvey that was engaged in an emergency call. The collision occurred as the State Police vehicle moved to pass [*253] Mizell’s vehicle in the center turn lane on Illinois Route 45 outside of Metropolis, Illinois. At the time of the accident Trooper Alvey was in an emergency response with his emergency lights and sirens activated.

The first witness for Claimant was Steven Parker. Parker testified as to the operation of the State Police vehicle prior to the accident. Respondent objected to the relevancy of the testimony as Parker did not actually witness the accident and moved to strike testimony. Commissioner Murphy granted the motion to strike. Parker’s testimony is stricken and is not considered in this option.

The next witness called by Claimant was Mizell. Mizell testified that on the date and time in question she was traveling southbound Illinois Route 45. She stated that Route 45 was a four lane road with a center turn lane.

She testified that she was traveling in the passing lane, which she described as the centermost lane of traffic. There was a lane of traffic to her right and the center turn lane was to her left. She testified that she noticed the State Police vehicle coming behind with the emergency lights activated. She stated that she hit her brakes as her initial reaction was that the State Police vehicle was after her. She testified that she determined that the State Police vehicle was not after her but was going to pass her. She testified that the State Police vehicle was coming behind her fast so she decided to stay in her lane. She testified that she stayed in her lane because she thought the State Police vehicle was going to pass her on the right. Mizell testified that she was then struck from behind and was spun into the ditch on the opposite side of the road. She stated that there were no vehicles in the right lane to her front or to her rear. On cross-examination, Mizell stated that she may have had time to pull to the right when she first noticed the State Police vehicle but did not pull to the right lane because she thought the State Police vehicle was coming from behind too fast and was going to pass her on the right.

At the conclusion of the testimony of Mizell Claimant’s Group Exhibit 1 was admitted without objection.

Claimant’s Exhibits 2 and 3 were also admitted into evidence without objection. Claimant closed its case in chief.

Respondent called State Trooper Alvey. Trooper Alvey testified that he was responding to an emergency call and was traveling southbound on Illinois Route 45. He testified that his lights were on as he approached Mizell’s vehicle. Trooper Alvey testified that as he approached Mizell’s vehicle that traffic was moderate. He stated that there were vehicles in the right lane both in front of and behind Mizell. He stated that he moved into the [*254] center turn lane and proceeded to accerlerate to pass Mizell. He testified that as he tried to pass Mizell she moved her vehicle into the center turn lane. Alvey hit his brakes; locked his rear wheels; and lost control of his vehicle.

Trooper Alvey testified that he struck Mizell’s vehicle.

On cross-examination, Trooper Alvey testified that he has a duty to operate his vehicle in a reasonable, safe manner for others and property even when in an emergency action. He testified that vehicles are to move to the right per the Rules of the Road so troopers are trained to never go to the right when approaching a vehicle. He testified that he had just passed a vehicle on his right when he moved to the center turn lane. At the conclusion of Trooper Alvey’s testimony Respondent’s Exhibit 1 was admitted into evidence without objection.

II. Analysis

There is no question that Trooper Alvey struck Mizell’s vehicle. The issue in this case is whether Alvey or Mizell was negligent or was it a combination of both parties’ negligence. Claimant has made a claim for negligence. In order to prevail, Claimant must establish a duty owed to Claimant by Respondent, a breach of that duty by Respondent, and damages resulting proximately from that breach. Chandler v. Illinois Central Railroad Co., 207 Ill. 2d 331, 340, 798 N.E.2d 724, 729 (2003).

In Claimant’s complaint he alleged that Alvey owed a duty to exercise care and caution for the safety of others. Claimant alleges that Alvey deviated from this duty by: (1) negligently operated his vehicle at a rate of speed greater than that which was reasonable and proper for the traffic conditions in violation of 625 ILCS 5/11- 601; and (2) negligently failed to keep a proper distance between his vehicle and the Claimant’s vehicle.

A police officer in an emergency response or pursuing a lawbreaker may violate various rules of the road so long as they do not endanger life or property. Koepp v. State of Illinois, 46 Ill. Ct. Cl. 344 (1993). The Rules of the Road cite specific rules that a police officer may violate in an emergency call or when pursuing a lawbreaker.

See 625 ILCS 5/11-601. First among these rules is that a police officer may exceed the posted speed limit. See 625 ILCS 5/11-601(3). Even though the law provides that a police officer may exceed the posted speed limit, the officer still must exercise ordinary care in the operation of the vehicle so as not to endanger others or property.

Davis v. State of Illinois, 49 Ill. Ct. Cl. (1996).

[*255] In this case, the key factual question revolves around the behavior of Mizell and Alvey just prior to the accident. Mizell testified that she knew Alvey was coming from behind her and she remained in her lane of traffic.

Mizell stated that even though Alvey was approaching from the rear at a high rate of speed she had adequate time to move to the right of the road if she had elected. This testimony leads to two conclusions: (1) Alvey was not going so fast as to prevent other drivers the time to safely move to the right of the road; and (2) Mizell violated §5/11-907(a)(1) of the Rules of the Road by not moving to the right of the roadway to allow Alvey to pass, (625 ILCS 5/11-907(a)(1)).

Even though Mizell did not move to the right of the roadway, Alvey still had a duty to exercise due care so as not to endanger others when passing Mizell. That is to say a police officer cannot rear end another vehicle simply because it fails to move to the right. Therefore, this Court must determine if Alvey should have stopped or avoided Mizell. The burden of proof on this question rests with Claimant.

Alvey testified that as he approached Mizell he moved to the center turn lane to go around her because she had not moved to the right of the road. He stated that as he moved to pass her, Mizell moved into the center turn lane causing the accident. This movement of Mizell to her left is disputed by the testimony of Mizell.

Unfortunately for Claimant it is her burden to prove that Alvey deviated from the standard of care. Claimant has not presented any evidence to conclude that Alvey deviated from his duty of care. If anything one can infer that Mizell may have moved to the left if she thought Alvey was going to pass her on her right as she testified.

Claimant has not met her burden of proof.

IT IS HEREBY ORDERED that Claimant’s claim is denied.