Valerie Jackson and Maedean Chandler v. Illinois Department of Transportation

This claim is before the court upon a recommendation from the assigned

commissioner following an evidentiary hearing.

Claimants assert that on April 7, 2003, an

Illinois Department of Transportation ("IDOT") employee caused a vehicular collision on I[*168]

290, which subsequently caused both Claimants to suffer personal injuries.

The following

witnesses and evidence were presented at trial:

FACTS

Valerie Jackson

Claimant Valerie Jackson testified that she was the owner and driver of a 1997

Grand Am which was involved in a collision with an IDOT snow plow on April 7, 2003.

Ms.

Jackson testified that the collision occurred on I-290, which runs eastbound and

westbound with four lanes in each direction.

The collision occurred near Wolf Road where

the four westbound lanes of the expressway diverge so that the two left lanes become I-88

and the two right lanes become I-290.

Ms. Jackson testified that on April 7, 2003, at approximately 3:15 a.m., she was

traveling westbound in the far right lane of I-290 just before the split with I-88.

She claims

it was snowing and the streets were wet but that traffic was very light because of the early

hour.

Ms. Jackson estimated that she was traveling at about 45 miles per hour before the

collision took place.

She further testified that she was traveling in the far right lane when

she saw a snow plow truck to her left, which was also traveling westbound.

She stated that

the snow plow was two lanes left of her vehicle headed for I-88, but as both vehicles

approached the split, she noticed the snow plow merge to the right into the lane next to

her.

Ms. Jackson testified that when the snow plow had reached the lane next to her, it was

only a few feet ahead of her.

Claimant testified that when she noticed the snow plow

merge into the lane next to her, she took her foot off of the accelerator to slow down, but

she claims he continued to merge into her lane, and struck her vehicle.

Ms. Jackson

[*169] testified that upon impact her vehicle was pushed to the right and bounced off of the

retaining wall before it came to a stop on the right shoulder of the expressway.

Ms. Jackson further testified that immediately after the collision she felt pain in her

back, neck, stomach and head.

An ambulance was called and Ms. Jackson was transported

to Loyola Hospital for treatment.

At Loyola Ms. Jackson underwent x-rays, which were

ruled negative for bone injuries.

She was given Ibuprofen for her pain and released to her

home later that day.

Two days later, on April 9, 2003, Ms. Jackson went to see Dr. Maloney,

a chiropractor for medical treatment.

As a result of the symptoms she experienced when

she saw Dr. Maloney, he ordered her off of work for one month.

Due to her time off from

work, Ms. Jackson seeks $4,900 in wage loss.

She further seeks $4,652.80 for her medical

bills.

Ms. Jackson seeks $20,000 in pain and suffering for her headaches which she alleges

continue into the present day, and also seeks $10,000 for a loss of normal life.

Claimant Maedean Chandler

Claimant Maedean Chandler was a passenger in the front seat of Ms. Jackson's

vehicle on April 7, 2003, at the time of the collision.

Ms. Chandler testified that on April 7,

2003, they were traveling in the far right lane of I-290, headed westbound at about 3:15

a.m.

She estimated that they were traveling at about 45 miles per hour.

She further

testified that she noticed the snow plow truck ahead of their vehicle, and a few lanes over

to their left.

She claimed that the truck began to move to the right until it was in the lane

next to theirs.

She claimed that she began screaming when she realized that the snow plow

truck was merging into their lane, and then it struck them.

She further testified that as a

result of the collision their car was pushed to the right and hit the retaining wall.

[*170] On cross examination, Ms. Chandler testified that she did not notice the snow plow

truck until it was in the lane right next to theirs.

She claims he was slightly ahead of them,

almost to their side and it seemed like he was coming over into their lane, so she started

screaming because she claims it didn't seem like he saw their vehicle.

Ms. Chandler testified that immediately after the collision she felt pain in her head,

neck, back and shoulder.

She was transported via ambulance from the scene of the

collision to Loyola Hospital where they gave her Tylenol for her pain and took x-rays of her

shoulder, neck, and lower back.

Her x-rays were negative, she did not suffer any fractures,

and she was released later that day from the hospital.

Ms. Chandler further testified that

she went to see her chiropractor, Dr. Minnis, in the days following the collision because she

was still experiencing pain.

Dr. Minnis was Ms. Chandler's chiropractor for a pre-existing

back injury she suffered in 1994.

Ms. Chandler testified that Dr. Minnis referred her to see

a physician, Dr. Ansari, at their initial visit.

Dr. Ansari determined that Ms. Chandler

needed an MRI and administered Ms. Chandler a cortisone injection in her lower back.

Ms.

Chandler completed 25-30 sessions of physical therapy with Dr. Minnis and completed her

treatment with him in September 2003.

She claims that at the end of her treatment her

neck pain had resolved, but she was still feeling lower back pain and shoulder pain.

Ms.

Chandler testified that she then sought a second opinion from Dr. Sheehan at Trinity

Orthopedics, who determined that she suffered a shoulder strain.

Dr. Sheehan prescribed

more physical therapy for Ms. Chandler.

Ms. Chandler testified that she still experiences

back pain today, and cannot drive long distances because it is too painful.

Ms. Chandler testified that she was off from work for about two or three months

following the collision.

As a result of her time off from work Ms. Chandler seeks a wage [*171]

loss reward of $4,500.

She further seeks $5,463.50 for her medical bills, which were

admitted into evidence.

Ms. Chandler seeks $19,000 for the pain and suffering due to her

lower back pain, which continues to present day, and also seeks $8,500 for loss of a normal

life.

Respondent Bobby Hert

Respondent Bobby Hert is an employee with the Illinois Department of

Transportation.

He was the driver of the snow plow truck involved in the collision on April

7, 2003.

Respondent Hert testified that he was a full time IDOT employee in April 2003.

He further testified that it was snowing the morning of April 7, 2003.

His route on the

morning of April 7, 2003, was on I-290.

Respondent Hert testified that he would enter I

290 at Mannheim Road and proceed westbound to the split of I-290 and I-88, he would

remain on I-290 and head north to North Avenue and then turn around and complete a

loop.

Respondent Hert testified that it was IDOT policy to completely plow one lane of

traffic at a time, and that he was plowing the second lane from the right at the time of the

collision with Claimant Jackson's vehicle.

He further testified that he was traveling in the

second lane from the right and had no intention of changing lanes.

Respondent Hert

testified that he noticed the Claimant's vehicle about seven (7) car lengths behind him in

the far right lane prior to the collision.

He states that he saw Claimant Jackson's vehicle in

his side mirror.

Mr. Hert estimated that he was traveling at about 30 to 33 miles per hour

prior to the collision.

Mr. Hert testified that Claimant's vehicle came up on his right side

and hit the right lower side of the snow plow.

Mr. Hert testified that he felt the impact and

saw the plow blade jiggle off from the impact, but that he did not hear the impact because [*172]

his windows were rolled up.

After impact, Mr. Hert pulled to the left shoulder and called

the IDOT control center to report the accident.

While at trial, Respondent Hert testified that he saw Claimant's vehicle in his side

view mirror, in the right lane, about seven car lengths behind his vehicle.

However, he was

impeached with his prior discovery deposition in which Mr. Hert testified that he did not

see Claimant's vehicle before the collision and that he did not know what lane she was

traveling in before the collision.

Mr. Hert also testified at trial that he felt the impact, but

that he did not hear the collision because his windows were rolled up.

However, in his

discovery deposition Mr. Hert testified that the first thing that let him know a collision

occurred was that he heard the impact.

He further testified at that deposition that he did

not feel the impact because his truck was so big.

Finally, although Mr. Hert testified

originally that the snow plow was struck by Claimant's vehicle as she was traveling in the

far right lane, he testified at his evidence deposition that Claimant struck his driver's side

step, leading the driver into the truck in the collision.

Dr. Patrick Maloney

Dr. Maloney, a chiropractor, testified that he treated Claimant Jackson on April 9,

2003, for injuries she sustained in a motor vehicle accident on April 7, 2003.

According to

the medical records of that visit, Ms. Jackson complained of headaches, neck pain, sleeping

problems, back pain, nervousness, tension, irritability, chest pain, dizziness, and she

complained of pain in the right shoulder.

After examination, Dr. Maloney rendered Ms.

Jackson a diagnosis of cephalgia, cervical sprain/strain in the neck region, thoracic

sprain/strain in the rib region and lumbar sprain/strain.

At trial, Dr. Maloney opined that

the medical problems that Ms. Jackson had were pre-existing, yet were aggravated by this [*173]

trauma.

He causally related her injuries to the April 7, 2003 incident.

Further, Dr. Maloney

testified that her complaints of pain were consistent with her injuries.

Dr. Maloney

testified that Ms. Jackson's head, neck and back injuries were the type that would prevent

her from working for approximately one month.

Ms. Jackson participated in

approximately 27 sessions of physical therapy and was able to return to work after

approximately one month.

Her last visit with Dr. Maloney was July 15, 2003, and at that

time she noted intermittent headaches and less intense pain.

LEGAL ANALYSIS

In a negligence action, the Claimant has the burden to prove by a preponderance of

the evidence that the Respondent was negligent and that this Respondent's negligence was

a proximate cause of Claimant's damage.

Jacobs v. State, 49 Ill. Ct.Cl. 16 (1997).

The evidence in this case demonstrates that Respondent merged his vehicle into

Claimants' lane and struck Claimants' vehicle.

Regarding driving on roadways laned for

traffic, Section 11-709(a) of the Illinois Vehicle Code requires the following:

A vehicle shall be driven as nearly as practicable entirely within a single lane

and shall not be moved from such lane until the driver has first ascertained that

such movement can be made with safety. (Illinois Vehicle Code, 625 ILCS 5/11-

709(a)).

Respondent Hert established through his testimony that at the time of this collision he was performing his duties as an Illinois Department of Transportation snow plow driver.

As such, he was acting as an agent for the State of Illinois at the time the collision occurred.

Mr. Hert testified that he was traveling westbound in the second lane from the left and that Claimant Jackson hit his snow plow with her vehicle when she attempted to pass him on the right hand side.

However, on cross examination Mr. Hert's credibility was called into question.

Lapses in his memory from his discovery deposition revealed [*174] inconsistencies about his perception of the collision with Claimant on April 7, 2003.

Mr.

Hert testified that he saw Claimant's vehicle on his right side about seven car lengths behind him and that Claimant hit his plow as she tried to pass him on the right.

He also claimed that he knew their vehicles had collided when he felt the collision, but that he did not hear it.

However, one year after the incident, at his discovery deposition, Mr. Hert's recollection was completely different.

He could not remember which lane the Claimant was traveling in, and said that he did not see her vehicle before he heard the impact.

Also, he believed the impact occurred on the driver's side of his vehicle, causing damage to the step that leads into the carriage of his truck.

At trial, he acknowledged that the damage caused by the collision with Claimant's vehicle in this case was to the right side of his snow plow rather than the left side of his truck.

Due to Mr. Hert's inconsistent testimony, his credibility as to how the collision occurred is unreliable.

Both Claimants' testimony, as well as the damage to the vehicles evidences that Respondent Hert merged into Claimants' lane before it was safe for him to do so.

Thus, Claimants have proven by a preponderance of the evidence that Respondent was liable for the vehicle collision.

At trial, Respondent objected to Dr. Maloney's testimony that the trauma Claimant

Jackson sustained in the April 7, 2003, incident is causally related to her current complaint

of migraines.

Respondent cites Illinois case law for the proposition that absent a recent

medical examination, a physician may not testify at trial regarding his opinion concerning

the permanency of a patient's injuries.

Soto v. Gaytan, 313 Ill.App.3d 137, 728 N.E.2d 1126

(2nd Dist. 2000); Knight v. Lord, 27 Ill.App.3d 581, 648 N.E.2d 617 (4th Dist. 1995).

While

some circuits suggest Illinois law prevents a physician from testifying at trial unless it is

based on a recent examination, others consider the recency of the examination as one [*175]

factor, among others, for the trier of fact to consider.

Soto, 313 Ill.App. 35 at 142; Knight,

313 Ill.App.3d at 620.

Other factors to consider include how long the patient treated with

the doctor and whether surgery was involved in the course of treatment.

Courtney v. Allied

Filler Engineering., Inc. 181 Ill.App.3d 222, 231, 536 N.E.2d 952.

At trial Dr. Maloney testified that Claimant, Valerie Jackson, saw him on April 9,

2003, for injuries she sustained in the motor vehicle accident two days prior.

He testified

that he diagnosed her with back sprain/strain, neck sprain/strain, and headaches.

Dr.

Maloney also testified that Ms. Jackson's last appointment with him was July 15, 2003, and

that at that time her injuries had resolved other than intermittent headaches.

However,

the time lapse between Dr. Maloney's treatment and trial testimony in this case is

significantly longer than any of the case law where admissibility of a doctor's opinion is at

issue.

Here, Dr. Maloney last treated Ms. Jackson on July 15, 2003, and he testified

regarding her injuries on October 16, 2009, over six years later.

Hence, the opinions he

rendered at trial regarding the permanency of her headaches were more likely conjecture

and less likely based on fact.

Thus, Claimant can only be awarded damages for the

disability, pain and suffering she endured from the date of the incident until July 15, 2003,

her final day of treatment.

Claimants must prove their damages by a preponderance of the evidence.

Williams

El v. State, 52 Ill.Ct.Cl. 11, 16 (1999).

The medical bills submitted to the court, which were

stipulated by both parties suggest Ms. Jackson's medical treatment was reasonable and

necessary for the injuries she sustained following the motor vehicle collision.

Both parties

stipulated that the medical bills for Ms. Jackson, including her ambulance, emergency room

and medical treatment following the incident, were fair and reasonable amounts.

Ms.

[*176] Jackson's medical bills totaled $4,652.80.

Ms. Jackson also submitted evidence of a wage

loss claim of $4,900 accounting for the time she had to take off of work to recover from her

injuries.

Although Ms. Jackson seeks $20,000 for her continued pain and suffering and

$10,000 for the loss of a normal life, she failed to meet the burden of proof for these claims

due to the long period of time that has elapsed since Dr. Maloney last treated Ms. Jackson.

Ms. Jackson is entitled to receive damages of $3,000 for the pain and suffering she endured

while treating with Dr. Maloney for those four months.

Thus Ms. Jackson's total award is

$12,552.80.

This case also warrants consideration of the Claimant-driver's actions in addition to

Respondent's actions.

Claimant's recovery will be reduced proportionally to the claimant's

degree of fault in causing the damage.

Guffey v. State, 40 Ill.Ct.Cl. 179 (1984).

Under Illinois

law, "[s]peed must be decreased as may be necessary to avoid colliding with any person or

vehicle on or entering the highway in compliance with legal requirements and the duty of

all persons to use due care."

(625 ILCS 5/11-601).

Drivers must use every reasonable

precaution to avoid a collision with an automobile.

Katzenberger v. State, 43 Ill.Ct.Cl. 218

(1991).

Furthermore, Ms. Jackson had a duty to yield to an authorized vehicle displaying

amber lights.

(625 ILCS 5/12-215).

In this case, both Respondent Hert and Claimant

Jackson testified that Mr. Hert's lights were displayed at the time of the incident.

Ms.

Jackson testified that when she saw Respondent's vehicle merge into the lane next to hers,

that she took her foot off of the accelerator and held the wheel tight because she realized

he was about to merge into her lane.

Ms. Jackson failed to yield properly in that she did not

attempt to depress her vehicle's breaks when she noticed Respondent's vehicle ahead of [*177]

hers.

Thus, Ms. Jackson was 10% negligent and her award of $12,552.80 will be reduced

by 10%.

Accordingly she is awarded $11,297.52.

Both parties stipulated that the medical bills for Ms. Chandler, including her ambulance, emergency room and medical treatment following the incident, were fair and reasonable amounts.

However, Ms. Chandler's complaints of continued disability and pain and suffering are unsubstantiated by any medical opinions.

As such, she has failed to sustain her burden of proof to establish that her medical condition is permanent.

Ms.

Chandler's medical bills totaled $5,463.50.

Ms. Chandler also submitted evidence of a wage loss claim of $4,500 accounting for the time she had to take off of work to recover from her injuries.

Although Ms. Chandler seeks $19,000 for her continued pain and suffering and $8,500 for the loss of a normal life, she failed to meet the burden of proof for these claims because she had no medical testimony to establish that the collision caused her injuries, in particular her back injury which she claims continues to impair her lifestyle.

Ms. Chandler

is entitled to receive damages of $4,500 for the pain and suffering she endured while treating for six months.

Thus Ms. Chandler's total award is $14,463.50.

The awards established by this Order are attributable to Respondent Illinois Department of Transportation only.

Claimant's complaint also sues Respondent Hert individually, and as an agent for the State.

However, this Court lacks the authority to pass judgment on the Respondent Hert individually.

Section 8(d) of the Court of Claims Act specifically provides that this Court is authorized to adjudicate all claims against the State in cases sounding in tort.

705 ILCS 505/8.

This language indicates that only the State of Illinois is a proper party defendant.

Neitzke v. State, 42 Ill. Ct. Cl. 206 (1989).

Accordingly, the Court of Claims only has jurisdiction over claims against the State or a State agency.

It

[*178] does not have jurisdiction over individuals.

Brustin v. State, 50 Ill. Ct. Cl. 336 (1998); Neitzke v. State, 42 Ill. Ct. Cl. 206 (1989); McGahee v. State, 33 Ill. Ct. Cl. 304 (1980).

As

such, Respondent Hert, named individually, is dismissed from this action and the awards afforded to Claimants are attributable to the Respondent State of Illinois Department of Transportation.

IT IS HEREBY ORDERED that Claimant Jackson be awarded $11,297.52 and Claimant Chandler be awarded $14,463.50.