Kevin and Robert Osborn v. State of Illinois

OPINION

GAGLIARDO, J.

Claimant Kevin Osborn brings this tort claim seeking compensation for damages suffered when he lost control of his motorcycle on June 13, 2009, while traveling on an unlit and unmarked auxiliary lane that abruptly terminated into an uneven, rutted, and eroded gravel roadshoulder. Claimant’s father, Robert Osborn, brings a separate claim in tort for loss of society and companionship. A hearing was held before a Commissioner and testimony was presented of Claimant, Claimant’s father, Claimant’s expert witness James Schultz and Respondent’s witness Cory Jucius, an IDOT traffic engineer.

Part I - Claimant Kevin Osborn

FACTUAL BACKGROUND

Claimant testified that when he got to the location in question he moved over to the auxiliary lane. The next thing he remembered was waking up in the hospital. However, the location of the accident was described by Claimant’s father and is depicted by photographs of the accident scene admitted into evidence.

The location in question involves the sole through-lane on 135th street westbound, about 1,000 feet east of its intersection with Harlem Avenue, in Orland Park, Illinois. Adjacent to the 135th street westbound traffic lane, there was a short auxiliary lane that intersected with a Cook County Forest Preserve driveway to facilitate a right-turn entrance into the Forest Preserve. About fifty feet beyond the auxiliary lane’s right-turn entrance into the Forest Preserve, the auxiliary lane terminated into an uneven, eroded, and rutted gravel road-shoulder. However, several hundred feet directly west of the auxiliary lane, the westbound through-lane widened again toward the right, creating a second through-lane after the gravel road-shoulder.

Although Claimant does not recall what happened, his counsel argues that given what we know about the location in question, he must have thought that the auxiliary lane he was driving in was a right through-lane because he could not see the gravel shoulder located between the end of the auxiliary lane and the beginning of the second through-lane. Consequently, when the auxiliary lane terminated abruptly into the uneven gravel shoulder, Claimant lost control of the motorcycle and crashed, suffering catastrophic injuries that rendered him in a coma for several months and unable to return to his work in concrete. And even now, Claimant has a hard time forming short term memories.

[*158] To establish that IDOT was negligent in how it maintained the roadway, Claimant offered the testimony of James Schultz, a civil engineer specializing in road construction. Schultz opined that there were several defects with this auxiliary lane that rendered it a dangerous condition, especially when visibility was poor.2 To begin with, it did not conform to the usual custom and practice of engineering standards because the auxiliary lane ended too abruptly. Estimating that the auxiliary lane only went about 50 feet beyond its intersection with the Forest Preserve’s driveway, he stated that it should have continued for a longer distance.

He explained that the pavement should have tapered for a distance, so drivers could recognize that the auxiliary lane was ending. He elaborated that the Manual on Uniform Traffic Control Devices (MUTCD) had a formula for the length of how long the auxiliary lane should have continued beyond the intersection with the driveway: width of the lane times the speed limit. Since the speed limit at the location in question was 50 mph, and he estimated the lane to be about 10 to 12 feet wide, the auxiliary lane should have continued about 500 ft. to 600 ft. past the driveway - 450 to 550 feet longer than the 50 ft. transition provided.

The auxiliary lane further failed to conform to civil engineering customs and standards due to the lack of signs or pavement markings stating that the auxiliary lane was only a right-turn lane and not a through-lane. Notably, he stated that IDOT uses the signs and pavement markings elsewhere in nearby locations, but there were none at the location in question. Nor were there any edge reflective devices. Without any of these, a driver would have no notice that this was not a through-lane. Drivers were left vulnerable to what Schultz opined was a visual effect that the auxiliary lane was a right through-lane.

Additionally, Schultz opined that the gravel shoulder itself should have at least been maintained on a smooth and level surface so it could be safely traversed. Instead, it was deeply rutted and uneven and not suitable for a motorcycle to maintain any control on.

IDOT offered the testimony of Cory Jucius, a 20-plus-year IDOT employee who currently serves as the arterial traffic field engineer for the district encompassing the location in question. As part of his current duties, he oversees the application and installation of signing and pavement markings on the arterial system for District One. He concurred with Schultz that the MUTCD was the appropriate authoritative manual regarding road construction, maintenance, and signage among other things. But Jucius disagreed with Schultz about warning signs or pavement markers being required, and he also disagreed that the auxiliary lane was required to be tapered.

Specifically, Jucius opined that because the auxiliary lane constituted a “turning bay provided by a physical construction” signs and pavement markers were not required under Section 2B.20 of the manual. He did not, however, explain why the auxiliary lane would be considered a physically constructed turning bay. He further opined that tapering of roadways was only required where a through-lane was terminating into another lane. According to Jucius, such tapering was not required because the auxiliary lane was not a through-lane. However, he

Throughout his argument, Claimant’s counsel asserts that the accident occurred at midnight. But as Respondent notes, the Record does not indicate what time that accident occurred. For purposes of our analysis, however, the time of day at which the accident occurred is immaterial.

[*159] admitted that without reflective pavement markings, a motorist traveling at night would not be able to tell that the auxiliary lane was just for making right turns.

Further, he agreed that it was possible that a motorist approaching the auxiliary lane could look ahead, see the traffic lights about 1,000 feet ahead at both lanes of Harlem Ave., and think that the auxiliary lane to the right was another through-lane - and this presented a potential hazard to motorists. Regarding the uneven gravel road, he agreed that it contained ruts and potholes that constituted a hazard to motorists and that he would have requested the staff working under him to call the IDOT Bureau of Maintenance to repair.

IDOT records and employee affidavits clearly establish that IDOT was responsible for maintaining westbound 135th street, the uneven gravel shoulder, and the auxiliary lane. Further, IDOT records reflect that in 1991 work had been performed on the auxiliary lane, which was constructed around 1986.

ANALYSIS

Negligence and Duty

To prove a claim of negligence, a claimant must prove the following: the respondent owed him a duty; the respondent breached that duty; and that the respondent’s breach proximately caused his damages. Estate of Johnson by Johnson v. Condell Memorial Hospital, 119 Ill.2d 496, 503, 520 N.E.2d. 37, 39 (1988). Although the State is not an insurer of the conditions of its roadways, it does have a duty to use reasonable care in maintaining its roads. Trotter v. State, 45 Ill. Ct. Cl. 164, 168 (1993).

Breach

Said duty of reasonable care is breached when the State had actual or constructive notice of dangerous conditions on its roads. Id. Thus, as a threshold matter in proving breach, Claimant must establish that Respondent had either actual or constructive notice of the dangerous condition. See Peterson v. Illinois Department of Natural Resources, 61 Ill. Ct. Cl. 274, 278 (2009).

Here, the dangerous condition alleged is the abrupt termination of the auxiliary lane into an uneven, eroded, and rutted gravel shoulder without any reflective road markers or warning signs. This is supported by photographs of the location in question taken shortly after the accident that show there were no warning signs or reflective markings. It appears IDOT had actual notice that the auxiliary lane terminated just 50 feet after its intersection with the Forest Preserve driveway without any warning signs or reflective pavement markers because the 1986 permit request approved by IDOT does not indicate such devices would be used. Presumably this information would have been provided as part of the permit process. Additionally, IDOT directed a resurfacing project at that location in 1991, which also would have given it actual notice of the abruptly terminating auxiliary lane without any reflective pavement markers, warning signs, or right-turn-only signs.

[*160] Further, we find that IDOT had constructive notice about the uneven, rutted, and eroded gravel shoulder because the condition, based upon photographs taken shortly after the accident, looked like it existed for a sufficient length of time during which IDOT should have discovered it. See Hanawell v. State, 47 Ill. Ct. Cl. 270, 275 (1995), (holding constructive notice exists where a preponderance of the evidence establishes that the defect was of such a nature that the State, in the exercise of due diligence, should have known it existed).

This takes us to whether the alleged dangerous condition itself constituted a breach of IDOT’s duty to use reasonable care in maintaining its roads. The test for determining whether there has been a breach of duty is the reasonable person standard. Haymes v. Catholic Bishop of Chicago, 41 Ill.2d 336, 339, 243 N.E.2d 203, 205 (1968). This is an objective test that asks the Court to determine whether, under circumstances similar to those shown by the evidence, the Respondent either failed to do something that a reasonable and careful person would not have done. Id.

In general negligence cases, experts are not needed to establish what a reasonable, careful person would or would not do under the facts. However, evidence regarding conformity to custom and usage may be considered and may suffice to establish the standard of care. Denniston v. Skelly Oil Co., 47 Ill.App.3d 1054, 1067-68, 362 N.E.2d 712, 722 (3rd Dist. 1977). Conformity to custom and usage may be considered in determining whether due care has been exercised in a given case.

Here, Claimant and Respondent presented their own witnesses regarding civil engineering standards concerning the location in question. Although there was some dispute as to whether the MUTCD required that the auxiliary lane be tapered or whether warning signs and reflective pavement markers were required, both Schultz and Jucius agreed on two important issues: 1) the auxiliary lane terminated into the uneven gravel shoulder without any warning, and this presented a potential hazard to oncoming drivers because they could fall prey to an optical effect that the auxiliary lane was actually part of the through-lane visible about 1,000 feet ahead, and 2) the uneven, rutted, and eroded gravel shoulder should have been repaired because it presented a hazard to drivers.

Certainly, a reasonable and careful person would have realized that this was a dangerous condition. The speed limit at the location in question was 50 mph, so a vehicle traveling at the speed limit would be moving at about 73 feet/sec. Yet the auxiliary lane only went 50 feet beyond its intersection with the Forest Preserve driveway. That means in less than one second a vehicle would go from being on the paved auxiliary lane and onto an uneven, eroded, and rutted gravel shoulder. A reasonable and careful person would have taken measures to rectify this condition or warn drivers of its existence. Accordingly, we find that Respondent breached its duty of reasonable care to Claimant.

Proximate Cause

Proximate cause is any cause which, in natural or probable sequence, produced the injury complained of. Harry W. Kuhn Redi-Mix Concrete v. State, 45 Ill. Ct. Cl. 33 (1993). It need not be the only cause or the last cause or the nearest cause. It is sufficient if it occurs with some other [*161] cause acting at the same time, which, in combination with it, causes the injury. Id. The term “proximate cause” encompasses two distinct requirements: “cause in fact” (or actual cause) and “legal cause.” Lee v. Chicago Transit Authority, 152 Ill.2d 432, 455, 605 N.E.2d 493, 502 (1992).

Respondent’s negligent conduct will be considered the “cause in fact” 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. Abrams v. City of Chicago, 211 Ill.2d 251, 258, 811 N.E.2d 670, 674 (2004). Legal cause is essentially a question of foreseeability; a negligent act is the legal cause of an injury if the injury is of a type that a reasonable person would see as a likely result of his conduct. Lee v. Chicago Transit Authority at 456.

Here, Respondent essentially argues that cause in fact cannot be established because Claimant does not recall how his accident occurred. Thus, even if Respondent was negligent, there is no evidence linking this negligence to Claimant’s injuries. Although Respondent’s point is well taken, we would be precluding recovery for every claimant who was ever rendered unconscious during an accident were we to conclude that a claimant’s inability to recall how his accident occurred automatically means he has failed to establish proximate cause.

Precisely because of situations like the one at bar, the trier of fact is free to draw on reasonable inferences supported by circumstantial evidence to find a showing of proximate cause. See Bourgonje v. Machev, 362 Ill.App.3d 984, 1007, 841 N.E.2d 96, 116 (1st Dist. 2005). Given the abrupt termination of the auxiliary lane, the lack of reflective pavement markers, warning signs, or right-turn-only signs or pavement markings, and the poor and dangerous condition of the uneven gravel road-shoulder into which the auxiliary lane terminated, and the 50 mph speed limit, we find it is more likely than not that Claimant’s accident occurred consistent with how his counsel argues it did. Accordingly, we find that but for IDOT’s failure to rectify the dangerous condition or warn of its existence, Claimant would not have lost control of his motorcycle and crashed.

As for legal cause, we find that Claimant’s physical injuries were a foreseeable consequence of IDOT’s negligent conduct. It was foreseeable that the abrupt termination of the auxiliary lane, with no pavement markings, warning signs, or right-turn-only signs could cause Claimant to lose control and sustain bodily injury, including injury to his brain. Accordingly, we find that Respondent’s negligence proximately caused Claimant’s physical injuries.

For all the above stated reasons, we find that Claimant has met his burden in establishing that Respondent was negligent. The only remaining issue is the damages for which Respondent is liable. It is clear that Claimant suffered severe bodily injury due to this accident. This includes injury to his brain. Even now, Claimant cannot form short term memories. He continues to suffer from physical pain that has not only kept him isolated socially, but has also left him unable to return to his job in concrete. Left with his pain, his dog and his father, Claimant looks to this Court for some comfort in terms of economic compensation. Given the nature and extent of Claimant’s injuries, we find that Claimant is entitled to the statutory maximum amount of $100,000. However, as Respondent notes, it is entitled a set-off to the extent that it paid [*162] Claimant’s medical bills. Here, Illinois Medicaid paid $37,204.45 in medical bills related to this accident. Accordingly, Claimant’s award is reduced by that amount.

Therefore, Claimant Kevin Osborn’s claim is hereby granted, and Respondent is hereby ordered to compensate Claimant in the amount of $62,795.55.

Part II - Claimant Robert Osborn

Claimant Robert Osborn’s claim is one for loss of society and companionship. However, parents in Illinois have no cause of action for loss of filial society resulting from non-fatal injuries to their children. Vitro v. Mihelcic, 209 Ill.2d 76, 806 N.E. 632 (2004).

Therefore, Claimant Robert Osborn’s claim is hereby denied.