Carl W. Henry v. State of Illinois

OPINION

BIRNBAUM, J. This claim is before the Court upon a recommendation from Commissioner George Argionis following an evidentiary hearing.

FACTS

The Claimant, Carl Henry, was cited for fishing before legal hours at an Illinois Forest Preserve and resisting arrest for his failure to heed orders by an Illinois Conservation Police Officer.

He claims the officer used excessive force in making that arrest and that he suffered injuries to his left knee during the arrest at Belleau Woods in Des Plaines, Illinois on April 3, 2004.

Testimony of Illinois Conservation Police Officer James D. Prater Illinois Conservation Police Officer (CPO) Prater testified that on April 3, 2004 he was on detail with an undercover officer because there had been previous complaints of people fishing before legal hours, entering the forest preserve early, and breaking into the forest preserve.

According to CPO Prater's testimony, CPO Wollgast entered the park before himself, dressed as a civilian fisherman, but did not actually fish.

CPO Prater

entered in uniform in a marked vehicle.

He started his route along the lake at the southeast corner of the lake.

[*223] CPO Prater testified that he encountered a group of people including Claimant, Carl Henry, standing around a bonfire.

He stated that he told the people around the bonfire to put the fire out because it was prohibited in the forest preserve. At that time CPO Prater approached two of Claimant's brothers, Philip and Thomas, and asked for their fishing licenses and identification cards He heard the Henrys grumbling about the intrusion by the police.

CPO Prater then continued around the lake path and collected the fishing licenses and identification cards of each person he came across.

He approximates that he circled the lake in thirty to thirty-five minutes.

He had informed each person he came across to meet him in a designated area so that citations could be issued. CPO Prater stated that the fishermen were told they were being detained and were not free to leave at this time.

CPO Prater testified that he did not issue the citations one at a time because it would have taken too much time to write out each citation owing to the number of violators.

In addition, some people who were fishing too early would have escaped without citation because by the time he would have gotten to them they would have been fishing at legal hours.

CPO Prater called out the Claimant's name at approximately 5:10- 5:15 a.m. The Claimant was down at the lake fishing so CPO Prater used the loudspeaker system to call out the Claimant's name.

CPO Prater stated that he saw the Claimant put his fishing pole down and begin to walk up towards the truck. When the Claimant reached CPO Praters truck, the officer informed him that he would be with the Claimant momentarily.

CPO Prater testified that he had already finished the Claimant's citation while waiting for him to walk up to the truck and was writing the next person's citation when the Claimant finally arrived at the truck.

CPO Prater asked the Claimant to wait by the front of the truck, where he had asked all the other individuals to wait as well. The Claimant responded by saying "[f]uck you, I'm not waiting," and began walking back towards the lake. CPO Prater used his loudspeaker system and again told the Claimant that he must wait at the front of the truck.

CPO Prater

stated that Claimant responded with "make me," and continued to walk back towards the lake.

CPO Prater explained that he requested the Claimant to wait by the front of his truck because the Claimant had been acting strangely.

He could smell alcohol on the Claimant's breath so he wanted to keep him easily within eyesight.

He further explained that allowing the Claimant to return to fishing and then calling him up at the end of the process would be inefficient and wasteful.

CPO Prater also stated that the Claimant and his brother Philip were the only two fishermen to be cited that did not follow his directions that infringers should wait in a designated area.

CPO Prater testified that at that point he exited the police vehicle and began approaching the Claimant.

He explained that he pulled his baton out because the Claimant was standing with his fists clenched and the officer wanted to be prepared in case the Claimant became physically violent. CPO Prater stated he was concerned that the Claimant may have a weapon on his person.

CPO Prater stated that once he reached the Claimant, he directed the Claimant back towards the police vehicle with his hand on the Claimant's shoulder Once at the vehicle, CPO Prater testified that he told the Claimant to place his hands on the hood of the truck several times, and the Claimant refused to do so. According to CPO Prater, the Claimant remained with his hands up in the air, in fists, near his head level.

CPO Prater stated that the Claimant kept his hands up, refused to comply with the [*224] officer's orders and began resisting arrest by pulling away from the officer.

CPO Prater

stated that he handcuffed the Claimant's right hand and began to bring it down so that he could also cuff the left hand.

He told the Claimant to put his hand behind his back at which point the Claimant began jerking away from the officer.

CPO Prater then began to pull the Claimant's right hand down in the direction of the Claimant's waist.

The Claimant and the officer began turning to the right in a clockwise fashion, away from the truck.

CPO Prater

began repeatedly giving commands to the Claimant to go to the ground face down.

CPO

Prater stated that the Claimant continued to struggle with him and resist arrest so the officer intended to bring the Claimant to the ground to more easily complete the arrest.

However, the Claimant refused to comply with the officer's request. The Claimant continued to refuse to put his arms behind his back and continued to struggle with the officer.

CPO Prater and the Claimant completed a full circle in front of the truck, moving towards the right. CPO Prater testified that the Claimant had enough arm strength to pull the officer towards him and CPO Prater was losing his balance after one and a half rotations.

At this time, he forced the Claimant to the ground. CPO Prater testified that once on the ground, the Claimant rolled over on top of the officer, and CPO Prater used the momentum to roll back over the Claimant. Once he was on the Claimant's back, he was able to straddle the Claimant and he had CPO Wollgast give him Wollgast's handcuffs to handcuff the left wrist and link the two empty cuffs together.

CPO Prater testified that he did not hear the Claimant scream out at any point and does not recall putting his knee on the Claimant's knee. CPO Prater did put his knee on the Claimant's mid-back so that he could handcuff him. According to CPO Prater, this is a standard maneuver taught to officers to hold an individual in place. CPO Prater testified that after he raised the Claimant up, the Claimant took a step and then began screaming in pain about his knee.

At that time, CPO Prater radioed for an ambulance or paramedics and for backup because the Claimant's brother had become hostile and was speaking in an aggressive manner.

According to CPO Prater's testimony, the Claimant's driver's license described him as 5' 10 and 185 lbs, however. CPO Prater stated that on the day of the incident, he would place the Claimant between 5'10 and 5'11" and closer to 200 lbs.

CPO Prater himself is 6'1" and 230 pounds.

Testimony of Carl Henry (Claimant) The Claimant testified that he is employed by the City of Des Plaines Water Management department as a maintenance operator.

He testified that on or about April 3, 2004 he arrived at Belleau Woods with his children, ages four, six and nine, between 4:15 and 4:30 a.m. for the first day of trout fishing. The Claimant stated that he joined his two brothers, Philip and Thomas, who arrived separately at the lake to fish. According to Claimant, his son grabbed a fishing pole with a dummy lure on it and headed towards the lake in order to practice casting. At that time, CPO James Prater approached the Claimant and his son and informed them that they were fishing before 5:00 a.m., and asked for the Claimant's fishing license and identification.

CPO Prater collected these items and continued on with his task. The Claimant could not recall if he told CPO Prater that his son [*225] was only holding a dummy lure or not. The Claimant admitted that he knew that fishing was prohibited until 5:00 a.m.

The Claimant testified that CPO Prater became upset when he noticed a fire burning not far from the Claimant.

CPO Prater told the Claimant and his party to put the fire out.

The Claimant testified the fire was small and used for heating up coffee. According to the Claimant, within the hour, CPO Prater called the Claimant up to his truck. The Claimant states that he approached the truck, stated his name, and stated that he was there to pick up his ticket, to which CPO Prater responded by informing the Claimant that the citation was not ready and asked him to stand a bit away from the truck. According to the Claimant's testimony, he headed in the direction of other individuals who were also waiting, but he realized that the slope to the lake dropped in a manner that made it difficult to see his children.

He returned to CPO Prater's truck and informed the officer that the Claimant was going to walk back down to the lake to watch his kids, and then turned around and began walking in that direction.

The Claimant did state that his brothers were also still down in the same area as his children.

At that time, CPO Prater came on over the loudspeaker on his patrol vehicle and told the Claimant that he was resisting arrest and to stop.

The Claimant testified that he stopped moving.

The Claimant, however did not return to the truck.

According to the Claimant's testimony, CPO Prater exited his vehicle and approached the Claimant.

The Claimant

alleges that CPO Prater was holding his baton and threatening the Claimant. When the officer reached the Claimant, he lowered his baton and directed the Claimant back towards the police truck. The Claimant stated that the officer nudged him with the baton but that he did not strike him with baton. According to the Claimant, once at the vehicle he was told to put his hands on the hood and did so.

Next, he was told to put his hands behind his back and did so as well. The Claimant testified that the officer cuffed one wrist but took an eternity trying to get other hand cuffed and was unable to do so. The Claimant stated that he was not resisting in any manner but that the officer just could not get the other handcuff on.

The Claimant testified that at this point CPO Prater became aggravated and told the Claimant to go to the ground. According to the Claimant's testimony before he could even comply with the officer's request, the officer kicked him a few times in his knee and at some point his left knee popped and he fell to the ground.

The Claimant testified that he was instantly in pain.

He testified that while on the ground the officer was finally able to get another pair of handcuffs from his partner to handcuff him.

The Claimant testified that his knee was very swollen and that his whole leg turned black and blue after the incident.

He stated that he required a brace and crutches. The Claimant did some physical therapy but ultimately needed surgery on his knee. The Claimant also testified that he initially missed worked for the two weeks after the incident, and then returned on light duty.

The Claimant stated that he had knee pain after the surgery that went away, and at some later point in time returned. However, he only saw the treating physician, Doctor Fitzsimons, until October of 2005. The Claimant testified that in total he took off eight weeks from work for the knee pain, surgery, and court dates.

According to the Claimant, he earned $900 a week.

[*226] Illinois Conservation Police Officer David Wollgast

David Wollgast testified that he is a Conservation Police Officer with the State of Illinois.

He stated that he remembered working at Belleau Woods on April 3, 2004, which was the opening day of trout season.

He testified that CPO Prater and himself were working together on that day for the first time.

CPO Wollgast testified that he was dropped off near the lake at about 4:20 a.m. by CPO Prater.

He went on to explain that he was working undercover that day, did not identify himself as a police officer, and was dressed in civilian clothing that made him appear as though he was out fishing that day as well.

CPO

Wollgast testified that on his person he had hidden his department identification and a gun.

CPO Wollgast stated that his role that day was to walk around the lake and take notice of people committing violations.

He would inform CPO Prater of these violations so that CPO Prater could come in and write those individuals a citation.

CPO Wollgast testified that he became familiar with Claimants presence when CPO Prater called the Claimant to come get his citation. According to CPO Wollgast, CPO Prater was calling people with just his voice.

However, the Claimant was not standing with the group of people waiting to pick up their tickets so CPO Prater called out Claimant's name over the loudspeaker system when he received no response with just the use of his voice.

According to CPO Wollgast's testimony, CPO Prater was calling individuals one at a time, writing up their tickets, and then releasing them before calling the next individual. The tickets were not prewritten and had to be handwritten rather than computer generated.

He went on to explain that CPO Prater was having an exchange with each individual before releasing them.

He estimated that there were 8 or 9 people waiting to get their citations.

CPO Wollgast testified that when CPO Prater requested that the Claimant wait by the front of the truck for his ticket, the Claimant continued to walk back towards the lake.

According to CPO Wollgast, CPO Prater then leaned out the window and reiterated to the Claimant that he should wait by the front of the truck.

CPO Wollgast stated that the Claimant urged CPO Prater to come and get him, and stood with his back to the truck and his hands in the air. The Claimant did not make any attempts to return to the truck.

CPO

Wollgast testified that CPO Prater then exited his vehicle and while still standing by the vehicle, he told the Claimant to return to where the Claimant was asked to wait or the officer would have to write him up for obstruction or resisting arrest. According to CPO Wollgast, CPO Prater asked the Claimant to return to the truck several times, and at some point the Claimant stated, "come get me, fucker." CPO Wollgast stated that after the Claimant's continuous refusal to comply with CPO Prater's instructions, CPO Prater approached the Claimant with his baton extended. At that time, the Claimant encouraged CPO Prater in a threatening manner to "go ahead and hit me".

CPO Wollgast testified that he watched CPO Prater use a modification of the escort position to guide the Claimant back to the truck. According to CPO Wollgast the modified escort position is the use of one hand to escort someone rather than two. CPO Wollgast went on to testify that the Claimant was resisting being taken back to the truck, and CPO Prater was required to use moderate forward pressure to move the Claimant along.

CPO Wollgast described the escort position as a position used to safely move an individual from one place to another.

[*227] CPO Wollgast testified that once at the hood of the police truck, CPO Prater instructed the Claimant to put his hands on the hood; however the Claimant placed his hands on the front grille guard of the truck.

CPO Prater then handcuffed the Claimant's right hand and began to bring it around to handcuff the left hand, but the Claimant began to pull his right hand back across his body making that task impossible.

CPO Wollgast

testified that CPO Prater instructed the Claimant to put his hands behind his back, but the Claimant continued to pull his cuffed right hand back around and across his body. At that point, CPO Prater commanded the Claimant to go to the ground multiple times.

CPO

Prater then pulled the Claimant towards the ground and at some point both the officer and Claimant were on the ground.

CPO Wollgast testified that he did not see CPO Prater kick the Claimant, nor did he see him use his baton.

While on the ground, the Claimant and CPO Prater struggled with the Claimant continuing to resist arrest. The Claimant rolled on top of CPO Prater and then CPO Prater rolled on top of the Claimant.

CPO Wollgast testified that a crowd began to surround the commotion and he heard vulgarities being said by Claimant's brother so he identified himself as a police officer to the crowd.

CPO Prater was still struggling with the Claimant who continued to resist arrest. At that point, CPO Wollgast handed CPO Prater his handcuffs and CPO Prater handcuffed one cuff to the Claimant's left hand and linked the two uncuffed cuffs together.

CPO Wollgast testified that when he did come into contact with the Claimant, he could smell alcohol on his breath.

CPO Wollgast testified that CPO Prater helped the Claimant to his feet and called 9-1-1 as soon as he realized the Claimant was in physical distress.

Testimony of Douglas Karowsky Mr. Karowsky testified that he arrived at Lake Belleau for the trout fishing spring opening day at approximately 4:30 a.m.

When he arrived at the woods it was still before daybreak.

He stated that he began fishing before 5:00 a.m. but he was unaware at that time that fishing before 5:00 a.m. was prohibited.

He identified the Claimant as someone he had seen the morning of the incident.

Mr. Karowsky was a witness to the incident between CPO Prater and the Claimant.

He testified that he saw other individuals line up to receive their tickets and then be released, and he did not witness anyone else have an altercation with CPO Prater.

Mr. Karowsky testified that he saw the Claimant put up a "verbal beef" when he was being issued his citation and that the Claimant attempted to walk away from the officer.

Mr. Karowsky witnessed the Claimant ignoring CPO Prater and directing angry expletives at him.

Mr. Karowsky testified that CPO Prater had to walk to the Claimant and physically direct him back to the truck.

Mr. Karowsky testified that once CPO Prater arrived back at the truck with the Claimant, the Claimant refused to put his hands behind his back so that CPO Prater could handcuff him.

Mr. Karowsky described the Claimant as being obnoxious.

He testified that the Claimant was struggling with CPO Prater and refused to be arrested. At this point, a real struggle began between the two, but Mr. Karowsky said CPO Prater did not kick the Claimant in the knee or use his baton on the Claimant.

Mr.

Karowsky did notice that the Claimant's knee buckled when he was struggling with the officer, sending them both to the ground.

Mr. Karowsky testified that he heard members of the Claimant's group yelling various obscenities as well. However, he described CPO Prater's conduct as professional throughout the incident.

[*228] Testimony of Thomas Henry Mr. Thomas Henry ("Thomas") testified that the sun was not up when the fishing group arrived at the lake that day. Thomas testified that he is a brother of the Claimant.

While Thomas did recall that it was opening day of trout season, he could not recall if it was the opening day in Spring (April) or Fall (October). Thomas said he was not fishing when things "started to happen." Thomas testified that he did not know how long the party was at the lake before crossing paths with CPO Prater.

He personally had an exchange with CPO Prater over the fire that was lit and stated that he was upset that the officer yelled at the children standing near the fire. Thomas testified that he did not know where the Claimant was when Thomas was putting out the fire because it was still dark outside. Thomas testified at first that he could hear names being called by the officer but later stated that he really could not hear too well.

He also stated that he was not sure if the Claimant's name was called.

He testified that uhe can't say anything for sure." Thomas testified that he saw the officer pushing his brother around so he went over to help.

He walked anywhere from 100 to 300 yards (1-3 lengths of a football field) in order to reach the area where the officer and the Claimant were standing. Thomas testified that the Claimant was handcuffed against the car when CPO Prater was kicking him in the knees to knock him down. After CPO Prater knocked the Claimant to the ground, the other officer pulled out his billy club to keep everyone away from the Claimant and prevent them from providing aid to the Claimant.

Thomas testified that soon after other police officers arrived.

Testimony of Doctor Phillip J. Fitzsimons Doctor Fitzsimons testified that he treated the Claimant for his injuries that allegedly arose from this incident.

He stated that he had previously treated the Claimant for an injury to his right knee, which included surgical intervention.

Doctor Fitzsimons

testified that the Claimant told the doctor that an officer had kicked him several times in the left knee in an attempt to arrest him.

Doctor Fitzsimons said that he does not make any attempt to verify what his patients tell him and accepts what they say as fact.

Doctor

Fitzsimons' initial examination revealed bruising and a likely tear of the anterior cruciate ligament.

He did not note pain.

Doctor Fitzsimons recommended wearing a continuous corset and crutches, limiting the Claimant's ambulation, and starting a physical therapy rehabilitation program.

Doctor Fitzsimons also recommended surgery for the tear in the Claimant's knee.

After two physical therapy sessions, the Claimant was discharged from physical therapy and told to work on his own.

Doctor Fitzsimons testified that he released the Claimant for light duty work on May 4, 2004.

Doctor Fitzsimons testified that the next documented visit was on March 1, 2005, nearly ten months after the Claimant's last visit. Doctor Fitzsimons noted in his records that he had wondered where the Claimant was because he had not returned for follow-up visits. According to Doctor Fitzsimons' testimony, the left knee was improved but still required surgery, and again pain was not noted.

Doctor Fitzsimons testified that the Claimant underwent knee surgery on May 4, 2005 and it was a success.

Doctor Fitzsimons

testified that the Claimant had several post-operative visits and his final visit was on [*229] October 13, 2005.

Doctor Fitzsimons testified that at that time the patient was "doing great," and he instructed the Claimant to follow-up on an as needed basis. Doctor Fitzsimons confirmed that the Claimant did not return to see him between October 13, 2005 and June 15, 2007, nearly two years. The Claimant returned in July 2007.

Doctor

Fitzsimons did not note any pain in his records and testified that as far as he knew, the Claimant was not suffering from pain at that time.

Doctor Fitzsimons testified that the April 3, 2004 incident was the cause of the Claimant's injuries to his left leg.

Legal Analysis

Under Illinois law, a peace officer's legal use of force is codified as "force which he reasonably believes to be necessary to effect the arrest and of any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest." 720 ILCS 5/7-5. To prevail, the claimant has a burden of proving by a preponderance of the evidence that the state's agent was negligent or used excessive force.

Duerst v. State, 50 Ill.Ct.CL. 186 (1998), citing Simmons v. State, 47 Ill.Ct.CL. 304 (1991).

In

excessive force cases, an objective standard is applied to the officer's conduct "in light of the facts and circumstances confronting them." State v. Mandarino, 2013 Il. App (1st) Ill 772, fl 48.

In Duerst, a state trooper came upon the claimant's vehicle partially stopped on the street. Duerst, 50 Ill.Ct.CL. at 188. The trooper began to pull behind the vehicle just as the claimant pulled the vehicle fully off the road.

Upon observation of the claimant's person, the trooper determined it would be appropriate to administer a field sobriety test, which the claimant failed. Id. The trooper informed the claimant he was under arrest for driving under the influence. Id. at 189. At this point, the claimant became more adversarial and he refused to comply with the trooper's request to conduct a pat down. Id. According to the Duerst Court, the trooper and claimant had very diverging testimonies but the Court found the trooper's testimony to be more credible that the claimant became more and more uncooperative. Id.

The claimant either pushed away from the vehicle and was taken to the ground by the officer in a tactic which makes it easier to handcuff an uncooperative suspect, or the claimant fell to the ground as he pushed himself away from the vehicle. Id. at 189-90. The claimant suffered a fractured cervical vertebrae from the struggle with the trooper. The Duerst Court held in favor of the trooper because the trooper "was trying to impose physical control over an intoxicated, uncooperative male who would not allow himself to be searched in a rural desolate location." Id. at 190.

Further, the Court did not agree with the claimant's assertion that the mere fact that he suffered a serious injury meant the force was excessive. Id. at 191.

Instead, the Court held that it could not conclude the officer intended to cause such a severe injury to the claimant or that it was likely that the takedown, if that was what occurred, would result in such a severe injury.

Id.

In State v. Mandarino, the Court held that the officer had used excessive force when he beat a suspected intoxicated driver. The officer struck the suspect fifteen times primarily over the head, neck, and shoulders with a baton.

Mandarino, 2013 II App (1st) Ill772, ¶¶6,7. The officer stated that he was trying to get control and compliance. Id.

However, the suspect's "non-compliance" was that he remained on his hands and knees rather than lying completely flat on the ground. Id. The fifteen strikes occurred within the [*230] span often seconds. Id. The victim suffered a mild concussion and seven stitches. Id. ¶¶ 9,10. The Court found it probative that the claimant never attempted to flee, never attacked the officer, and never appeared to resist the officer's attempt to arrest him. Id. ¶56. The Court went on to uphold the trial court's finding of excessive force. Id. ¶ ¶ 70,71,72.

The case at hand is more analogous to the Duerst case than the Mandarino case.

Here, the undisputed facts are that the Claimant had his fishing license and identification taken by CPO Prater who intended to cite the Claimant. The Claimant was not waiting with other fishermen waiting to be cited and had to be summoned by the officer over the PA system. The Claimant and CPO Prater diverge in what exchange took place between the two before the Claimant began walking away back towards the lake.

However, it is clear that CPO Prater did not give the Claimant permission to walk away because he told the Claimant to stop only moments later. At that time, the Claimant did not return to the police vehicle but had to be brought back by CPO Prater.

Further, the Claimant does not deny that the officer was able to get a handcuff on the right wrist but not the left wrist. The Claimant says he was not resisting nor struggling with the officer, and yet can offer no explanation as to why an officer of many years could not get a handcuff around the left wrist of a compliant suspect. Further, CPO Prater, CPO Wollgast, and Douglas Karowsky all testified that the Claimant was resisting CPO Prater's attempt to handcuff him.

CPO Prater was also surrounded by a group of fishermen, some of whom were yelling obscenities and making hostile statements. Thus, the officer here much like the officer in Duerst found himself in a situation with an arrestee who was not only not complying with the requests but was actively resisting arrest and engaging the officer in a struggle.

Furthermore, officers in both cases were in unsure situations that posed a danger.

In Duerst, the officer found himself alone with an intoxicated individual in a rural area, and here, CPO Prater found himself engaged in a struggle with a combative arrestee while surrounded by other hostile individuals. While it is true that CPO Prater could turn to CPO Wollgast for assistance and eventually did, both CPOs were outnumbered and it was important for CPO Prater to maintain control of not only the suspect but of a situation which could easily turn hostile.

Furthermore, the level of force used by CPO Prater is much more similar to the force used in the Duerst case. CPO Prater attempted to take down the Claimant by pulling down on his right arm and using his strength to pull the Claimant down.

He instructed the Claimant to go to the ground several times. The testimonies of CPO Wollgast and Douglas Karowsky substantiate CPO Prater's version of events.

CPO Prater testified that he does not recall kicking the Claimant in the knee and certainly did not do so intentionally.

CPO

Wollgast and Douglas Karowsky also did not see CPO Prater kick the Claimant in the knee.

Only the Claimant and his brother subscribe to an opposing version of events and Claimant's brother Thomas' memories as to that day's events were mostly very vague.

He

could not recall many of the day's occurrences including if the incident occurred in April or October, if his brother's (Claimant's) name was called by CPO Prater, or the location of his brother at certain times.

Furthermore, Thomas testified to facts that are not substantiated by a single other witness. While Thomas stated that his brother was already handcuffed when CPO Prater was kicking him in the knees, no one else including the Claimant subscribed to this version of events. Thomas also testified that CPO Wollgast pulled out a [*231] billy club to hinder anyone from administering aid to the Claimant, another incident that no other witnesses' testimony corroborates including the Claimant.

Thus, the Court finds CPO Wollgast, CPO Prater, and Douglas Karowsky's version of events to be more credible. The Duerst Court held that takedown maneuver was a technique for arresting an uncooperative suspect. Duerst, 50 Ill.Ct.CL. at 189-90. Here, the Claimant was also being uncooperative, regardless if he was intoxicated or not. The amount of force used by CPO Prater is completely on a different spectrum than the force used by the officer in Mandarino.

In that case, the officer hit a suspect, who was not resisting arrest and was in a docile position, fifteen times with a baton over the span of ten seconds. Most of these blows were directed at the head, shoulders, and neck.

In that case, the officer was not attempting to control an unruly suspect or situation but rather he was attempting exert his unbridled will and force over a suspect who was in a docile position and not actively resisting arrest.

Here, the Claimant was actively resisting a lawful arrest and CPO Prater used reasonable force to take down the Claimant in order to make a lawful arrest.

The Claimant's counsel points out that the independent witness, Douglas Karowsky, testified that he saw the Claimant's knee buckle before the Claimant went to ground.

However, Mr. Karowsky testified that he saw the knee buckle on its own and not because CPO Prater was kicking the Claimant's knee.

Mr. Karowsky's testimony only substantiates that while Claimant was resisting arrest he was injured; it does not establish that CPO Prater used excessive force.

Similarly in Duerst, the claimant suffered a fractured cervical vertebrae but the force used by the trooper in that case was reasonable, as it was here.

For

this same reason, Doctor Fitzsimons' testimony that the Claimant's knee injury occurred as a result of this incident does not persuade the Court that CPO Prater intentionally kicked the Claimant or used excessive force.

It was unlawful for the Claimant to disobey police orders, and physically struggle with a peace officer.

CPO Prater used lawful and reasonable force to make a lawful arrest.

The Claimant has not met his burden of proving by a preponderance of the evidence that unreasonable or unlawful force was used.

IT IS HEREBY ORDERED that Claimant's claim be DENIED.

[*232] No. 03-CC-0145 - Claim awarded) GEORGE RECH, Claimant, v. STATE OF ILLINOIS, Respondent.

Opinion filed March 20, 2014 MITCHELL FRIEDMAN, for Claimant MICHAEL BANKHEAD, NATHAN LUSIGNAN, Assistant Attorney General, for Respondent.

Negligence- Elements- To prove a cause of action in negligence, Claimant must establish the following by a preponderance of the evidence: the existence of a duty that Respondent owed; Respondent's breach of that duty; and that as a proximate result of the breach the Claimant suffered damages.

Negligence- Duty- With respect to Minutemen responding to an incident on the highway, they have a duty of reasonable care in responding to an incident. However, the State does not have a duty to prevent all accidents on its highways.

Negligence- Requirements- To determine whether Respondent breached its duty to Claimant, this Court must apply the appropriate standard of conduct, which in general negligence cases is the reasonable person standard. This is an objective test, based on the failure to do something that a reasonable, careful person would do, or to do something that a reasonable careful person would not do under circumstances similar to those shown by the evidence.

OPINION

STEFFEN, J. On July 3, 2002, Claimant, George Rech, filed a complaint for damages from injuries he sustained in a motor vehicle accident that occurred on July 8, 2001 involving, inter alia, an Illinois Department of Transportation (IDOT) vehicle driven by Lee Langon, Jr. A hearing was held on June 13, 2013 before Commissioner Joseph J. Cavanaugh after which Respondent and Claimant submitted closing briefs on August 13, 2013 and October 7, 2013 respectively. At the hearing, evidence and testimony were presented by both parties.

Claimant testified that on July 8, 2001 he was driving his new Ford Focus northbound on First Avenue at the intersection of Harrison which is located in Maywood, Illinois. After his light turned green he proceeded through the Harrison intersection and was struck in the passenger's side by a Cadillac driven by Nancy Goss. Upon impact, Claimant's vehicle spun around in a circle, collided with another car, and rolled over.

During the collision, Claimant's right knee hit the steering wheel, and shattered glass from the vehicle got in his eyes. His injuries and treatment are discussed in greater detail later in this opinion.

[*233] Nancy Goss testified that on July 8, 2001 she was driving her Cadillac on 1-290 with her mother in the passenger seat up front and her sister, nephew and daughter in the back, when her car ran out of gas. She managed to pull over on the left shoulder of the four-lane expressway and call her brother to bring her gas. She was on a straight portion of the expressway which was not curved.

While seated in her car, she noticed an IDOT vehicle pull up behind her. Goss stated that the driver, Lee Langon, Jr., told her over the loudspeaker to put her car in neutral and that he was going to push her off the expressway. According to Goss, he started pushing her with his vehicle before she was able to put her car in neutral, but she was eventually able to do so. Langon pushed her car at an angle across the four lanes of 1- 290 and then straight up the incline of the Harrison Avenue ramp.

She estimated that he was pushing the car at about 30 to 35 miles an hour. There were times while he was pushing her that his front bumper was not always in contact with her rear bumper. Aside from what he said to her in the beginning over the loudspeaker, Goss's testimony was that Langon never communicated with her. He never told her that she needed to start pulling to the side. In fact, he kept pushing her to the top of the ramp, and then toward the intersection where there was a red light. Goss recalled seeing the red light, screaming, hoping the light would turn green, and unsuccessfully trying to pump her brakes and turn her steering wheel. However, the brakes were like rocks and could not be pressed and the steering wheel could not be moved.

Lee Langon, Jr., who on the date of the incident was an IDOT highway maintainer for emergency traffic patrol (Minutemen), also testified at the hearing and recalled a very different version of events. He stated that Goss's vehicle was parked on a blind curve on the far left lane (lane 1) and that there was no shoulder on that part of the road. He parked behind her, got out of his tow truck, and walked up to her driver's side door. He asked her what the problem was and she said that she was out of fuel and that her uncle was en route.

He told her that it was safer to get her off the highway and that he would push her. He told her to turn on the ignition and put the car in neutral and that he would instruct her over the loudspeaker when to switch lanes. She said "Okay". He watched her turn on the ignition and put the car in neutral, and he walked back to his truck. Once in his truck, he asked her if she heard him over the loudspeaker, and she waived her hand out the window in acknowledgment.

He pushed her up the Harrison street ramp, where he knew there was a stoplight at the intersection with First Avenue. He estimated her vehicle was going 15 to 20 mph. As he came up the ramp, he saw the light turn red. He then backed off her vehicle, and over the loudspeaker, instructed her to pull over to the right and stop before the light. He said this to her three times. However, he stated that she did not do so, and she went through the intersection and hit Claimant's vehicle, causing it to be hit by another vehicle as well. He stated that the accident happened about 30 seconds after he stopped pushing her.

[*234] He acknowledged that safety was the most important part of his job and that sometimes the safest course of action required spending more time. He had been at that position for three years and was familiar with the on and off ramps in that area of 1-290. He agreed that pushing a stalled car is dangerous and should be avoided whenever possible.

He was also made aware of this precaution in a July 2001 IDOT memo.

He noted that for the safety of everyone involved, it was important that he establish communication with a driver. Regarding the incident in question, he stated that he knew Goss's Cadillac was without power and that it had power brakes and steering. He stated that this meant there is a diminished ability to steer the vehicle and apply its brakes because it would require more force to perform these functions.

He stated that he could have gotten in front of the vehicle and hitched it to the stinger of his tow truck in as fast as 14 seconds. But even though towing the vehicle would have given him more control over it, he elected to park behind it and push it across the four lane highway and up the ramp because he was concerned that Goss's vehicle would be hit from behind since she was parked on a blind curve, and drivers would not have seen her until they were right behind her. He testified that traffic was going about 75 mph on the highway.

Mark Jercha, who had been working for IDOT for 29 years, the last two-and-a-half of which he has been a lead worker at emergency traffic patrol, testified that a vehicle should be pushed as a last resort. Further, he stated that a tow-truck should never be going more than 10 to 15 mph when pushing a vehicle up an exit ramp and that if the road has no shoulder, the Minuteman should communicate with the driver through the loudspeaker instead of getting out of his truck to do so and risk getting hit by a car.

Jercha stated that Minutemen were to always maintain communication with the driver whose car they were pushing as well as traffic around them as they crossed each lane. Further, the truck should maintain contact with the vehicle's rear bumper as much as possible to maintain control over it. He agreed that if a vehicle was in a "bad spot" and obstructing traffic on a lane of traffic on a blind curve, that it would be better to push the vehicle.

Right after this incident, Claimant was taken to the emergency room at University Medical Center in Maywood where glass was removed from his eyes. He was released a few hours later. In the next few days, his right knee started to hurt. He tried to exercise on an exercise bicycle to get better, but after a few months his knee got worse and his back also started to hurt. In October 2001 he saw Dr. Whisler. In his evidentiary deposition, Dr.

Whisler stated that prior to October 2001 he had treated Claimant between 1991 and 1993 for a prior injury to his right knee, where he scoped Claimant's knee and found irregular areas around the anterior cruciate ligament and articular cartilage that he debrided and smoothed out. During that period of time Claimant walked with a cane to deal with his injury.

[*235] Dr. Whisler stated that when Claimant came to him in October 2001, he was complaining of pain over the medial side of his right knee and had limited range of motion and generalized tenderness. An MRJ taken several days later revealed accumulated fluid in his right knee. Dr. Whisler opined that the fluid could have been caused by trauma in the incident in question. He did not think the fluid was related to Claimant's prior injury that he treated him for between 1991 and 1993.

Dr. Whisler continued treating Claimant in 2002 and 2003 by prescribing him Vioxx and giving him occasional cortisone shots. Claimant's pain, range of motion, and tenderness seemed to improve, although he still always walked with a cane because it felt like his knee was weak and would buckle. However, on April 25, 2003, Claimant started complaining his pain was a 10/10 and had decreased range of motion and some tenderness.

An MRI was taken on June 18, 2003 and revealed what Dr. Whisler described as a "chondromalacia like condition." According to Dr. Whisler, this condition, where the bone or cartilage of the knee cap soften, can occur when you do not move a part of your body properly, like when you are having pain. As such, he opined that within a reasonable medical certainty, that the pain associated with the incident in question had caused Claimant the inability to move his knee cap properly and cause this condition. Claimant was told this condition could get worse or better, but there was not much Dr. Whisler could do for him other than tell him to take anti-inflammatory medication as needed.

Claimant was supposed to follow up with Dr. Whisler three months later, however, the next time he returned to Dr. Whisler was December 14. 2005. He was still complaining of the same problems as before, and Dr. Whisler told him that chondromalacia sometimes develops into arthritis, but they would have to wait and see.

Based on Claimant's complaints that the pain in the area of the chondromalacia seemed to be getting worse, X-Rays and MRI's were taken. Dr. Whisler said that the X-rays looked good, and that the MRI revealed that the area was actually healing.

As of July 27, 2006, the date of Dr. Whisler's deposition, his overall impressions were that he did not see any severe problems in Claimant's knee. He acknowledged that Claimant was experiencing pain, but stated that he had no meniscus tear, no severe arthritis, a little bit of chondromalacia in his kneecap, and a little bit of abnormality in the medial collateral ligament. There was also slight muscle atrophy in Claimant's right thigh, but he did not know the reason for that absent further evaluation of Claimant. He stated that all his treatment and tests performed on Claimant were associated with the incident in question.

He acknowledged that the injuries suffered by Claimant as a result of the incident in question were competent causes of pain and suffering and disability, and that Claimant actually suffered pain and suffering and disability. But overall, his impression was that Claimant's prognosis "should be pretty good." Currently, Claimant walks with a slight limp and continues to walk with a cane.

[*236] Six years after the incident, Claimant saw Dr. Glassenberg, a board certified neurologist and psychiatrist, who after a forty-five minute consult diagnosed him with PTSD related to the incident. As a result of the incident, Claimant stated that he is afraid to drive, afraid to go out during inclement weather for fear he'll fall, and in general is afraid of further injuring his knee. He also has general depression from his injury. Before his knee injury, he walked three to four miles at a time, rode his bicycle, and went bowling.

Claimant requests that he be awarded all his medical bills associated with his injuries to date, $125,000 for pain and suffering from the date of the incident to present, and $150,000 for future pain and suffering.

ANALYSIS

To prove a cause of action in negligence, Claimant must establish the following by a preponderance of the evidence: the existence of a duty that Respondent owed; Respondent's breach of that duty; and that as a proximate result of the breach the Claimant suffered damages. See Estate of Johnson by Johnson v. Condell Memorial Hospital, 119 Iil.2d 496 (1988). With respect to Minutemen responding to an incident on the highway, they have a duty of reasonable care in responding to an incident. See Consolidated Freightways Corporation of Delaware v. State, 54 Ill.Ct.Cl. 367 (2001). However, the State does not have a duty to prevent all accidents on its highways. See Scroggins v. State, 43 Ill.Ct.Cl. 225, 226 (1991).

A. Did Respondent Breach its Duty to Claimant?

To determine whether Respondent breached its duty to Claimant, this Court must apply the appropriate standard of conduct, which in general negligence cases is the reasonable person standard. This is an objective test, based on the "failure to do something that a reasonable, careful person would do, or to do something that a reasonable careful person would not do under circumstances similar to those shown by the evidence." Dealers Service & Supply Co. v. St. Louis National Stockyards Co., 155 Ill.App.3d 1075, 1081 (5th Dist. 1987).

Here, Claimant argues that Respondent breached its duty of ordinary care by pushing Goss's vehicle up the ramp instead of towing it and by pushing her vehicle into the intersection at an excessive rate of speed. Respondent cites Consolidated Freightways Corporation of Delaware, supra, for the proposition that Minutemen should be granted a great amount of discretion in responding to incidents which are a hazard to the motoring public. It further cites Acuity Insurance Company v. State, 59 Ill.Ct.Cl. 312 (2007), for the proposition that it cannot be found negligent where its employee followed IDOT procedures and there is no evidence to the contrary.

Under the facts presented, we do not find that Langon's decision to push Goss's vehicle instead of tow it breached his duty of reasonable care. However, there is sufficient evidence regarding how he pushed it that renders it more likely than not that he breached his duty to Claimant. Specifically, he pushed the Goss vehicle, at the time without brake or steering power, up an ascending ramp at an excessive rate of speed.

[*237] Jercha testified that under no conditions should the vehicle have been pushed up the ramp beyond 10-15 mph.

Goss testified that her powerless vehicle was travelling at a rate of 30-35 mph while being pushed up the ramp. Langon testified that the accident occurred 30 seconds after he stopped pushing it, and the Goss vehicle was travelling 15-20 mph at the time of the impact. This is while he was not even pushing her anymore. Langon testified that 30 seconds after he stopped pushing the (powerless) Goss vehicle it was still travelling between 15 and 20 mph and struck Claimant's vehicle with such force that it rolled over upside down. We find that Langon pushed Goss's vehicle at an excessive rate of speed up the exit ramp and Goss had no power or control over her vehicle in order to avoid the accident.

B. Was Respondent's Negligence the Proximate Cause of Claimant's Injuries?

This takes us to the element of proximate cause. A proximate cause is one which produces the injury through a natural and continuous sequence of events unbroken by any effective intervening cause. Kemp vs. Sisters of the Third Order of St. Francis, 143 Ill.App.3d 360, 361 (3rd Dist. 1986). If the negligence charged does nothing more than furnish a condition which made the injury possible and that condition causes an injury by the subsequent independent action of another, the creation of that condition is not the proximate cause of the injury. Id. The subsequent independent act becomes the effective intervening cause which breaks the causal connection, and itself becomes the proximate cause. Id. It need not be the only cause or the last cause or the nearest cause. Harry W. Kuhn Redi-Mix Concrete v. State, 45 Ill.Ct.Cl. 33 (1993). It is sufficient if it concurs with some other cause acting at the same time, which, in combination with it, causes the injury. Id.

Respondent argues that Langon pushing Goss's vehicle merely furnished a "condition" that made Claimant's injury possible. It argues that Nancy Goss, by her failure to stop, slow, or pull over her car, was the sole cause of the accident and that her failure to act was an intervening cause over which Respondent had no control and absolved it from liability.

However, Langon pushing Goss's vehicle was more than "a condition." It was the proximate cause. Goss being unable to stop her disabled vehicle from crashing into another vehicle at an intersection was a natural and continuous sequence of Langon pushing her disabled car up the ramp at an excessive rate of speed. But for Langon pushing Goss's vehicle from the expressway, and up the ramp toward the intersection, Goss's disabled vehicle would never have gone into the intersection. In fact, Langon pushing her vehicle was the only reason it was anywhere near the intersection to begin with. See Abrams v. City of Chicago, 211 ILL.2d 251, 258 (2004)(Stating that a defendant's negligent conduct will be considered the proximate cause of an injury if it was a material element or substantial factor in bringing about the injury: but for the negligent conduct, the injury would not have occurred)(emphasis supplied).

Further, even if Respondent was correct that Goss's actions or inactions were an intervening cause, it would nonetheless be liable for Claimant's injuries because it is well settled that the intervention of a new and independent cause does not relieve a wrongdoer of responsibility for his negligence if the intervening cause could have reasonably been anticipated. Culhane v. Ludford, 148 Ill.App.3d 763, 773 (2nd Dist. 1986). It was very [*238] reasonable to anticipate that when pushing Goss's disabled vehicle at a rate of speed higher than recommended that she might not be able to stop her vehicle or pull over before going through the intersection. For all the above mentioned reasons, we find Claimant has established that Respondent's negligence was the proximate cause of his injuries.

C. For What Damages is Respondent Responsible?

Claimant has established by a preponderance of the evidence that Respondent is liable to him for damages. The issue is what those damages are. Claimant requests that he be awarded all his medical bills associated with his injuries to date, which total $28,016.23. He requests that he receive $125,000 for pain and suffering for the twelve years from the date of the incident to present. Further, Claimant argues that based on life expectancy tables. Claimant will live about another twenty years. Claimant notes that in determining future damages the trier of fact is entitled to consider the length of time he has already had problems and that in the next twenty years continued pain and suffering and disability are reasonably expected to be experienced. He seeks $150,000 for future pain and suffering.

Respondent counters that Dr. Whisler's deposition does not support that Claimant's injuries are related to the incident; that all of the submitted medical bills are not related to injuries related to the accident; that the PTSD diagnosis was hastily made in that it was based on a 45 minute consult six years after the accident; and that there is no indication that Claimant will suffer future pain and suffering or disability because his last submitted medical bill is for treatment in 2008. Respondent also argues that to the extent it is liable, Claimant's injuries are 30% attributable to him and should be reduced accordingly because he failed to seek any kind of medical treatment for three months after the accident and did not take all the medication prescribed to him.

Based on Dr. Whisler's deposition we find that Claimant's medical bills are reasonably related to his injuries associated with Respondent's negligence. With respect to Claimant's past pain and suffering, based on all the evidence presented and Claimant's testimony itself, we find that Claimant did most certainly endure pain and suffering related to the injuries he suffered in the twelve years since his injury. However, we do not find that his injuries were of such a nature and extent that he be awarded $125,000. Most of his treatment has consisted of pain medicine and occasional cortisone shots and even that minimal treatment was not continuous. For example, between June 18, 2003 and December 14, 2005, there are no records that he saw any doctor for pain associated with this knee.

Further, we agree with Respondent that the PTSD diagnosis - six years after the fact-is too remote and speculative. Accordingly, we find that Claimant should be awarded $25,000 for past pain and suffering.

Although Claimant continues to walk with a cane and has a slight limp, we agree with Respondent that, given that the last medical bills are from 2008, future pain and suffering and disability are not necessarily "reasonably expected." In fact, Dr. Whisler stated in his July 27, 2006 deposition that he did not see any severe problems in Claimant's knee, and that his overall prognosis "should be pretty good." Accordingly, we find that Claimant is to be awarded $5,000 for future pain and suffering. We do not find that Claimant was in anyway contributorily negligent.

[*239] THEREFORE, Respondent is hereby ordered to pay Claimant $28,016.23 for past medical bills, $25,000 for past pain and suffering, and $5,000 for future pain and suffering, for a total award of $58,016.23.

[*240] LINE OF DUTY

COMPENSATION ACT

OPINIONS NOT PUBLISHED IN FULL

FY 2014

14-CC-1901 KOHLMEIER, JEFFREY E. $352,088.00

14-CC-2659 BROWN, AMIE $342,088.00