Musa Swarray v. State of Illinois

OPINION

GAGLIARDO, J.

Musa Swarray (“Claimant”) filed a Complaint on December 1, 2016 alleging that the State of Illinois, by and through an employee of Chicago State University, was negligent in operating a State-owned vehicle on October 13, 2016, resulting in damage to the vehicle he was driving. The matter was heard by one of the Court’s Commissioners on November 21, 2017.

FACTS

On October 14, 2016 at approximately 10:00 a.m., Claimant had just left a class at Chicago State University (“CSU”). The vehicle he was driving, a 2001 Chevy Monte Carlo, was parked in a parking lot on CSU’s campus. Claimant turned right out of the parking lot onto Cougar Drive, a two-lane access road. There were construction vehicles on both sides of the road, but there was sufficient room on the road for vehicles to travel in both directions.

When Claimant turned onto Cougar Drive, there was a Kubota in front of him. A Kubota was described by both the Claimant and the State’s witness as a golf-cart type of utility vehicle. The vehicle in front of Claimant was owned by CSU and operated by a state employee, Nicholas Bogdanich (“Bogdanich”). When Claimant pulled onto Cougar Drive, he was approximately two car lengths behind the Kubota.

Claimant testified that the Kubota slowed down and pulled to the right, and he believed the vehicle was doing so in order to let him pass. Claimant testified that as he passed the Kubota, the vehicle turned left into his vehicle, causing damage. At the time of the collision, Claimant did not see any signal indicators or emergency flashers on the Kubota.

Claimant entered into evidence a receipt for the damage caused by the collision, totaling $3,585.90. Claimant testified that he personally paid for all repairs of the vehicle.

On cross examination, Claimant acknowledged that there was construction in the area at the time, though not on the road he was driving on. Claimant stated that the speed limit on the road was 15 miles-per-hour. Claimant also confirmed that the vehicle he was driving was owned by his mother.

[*204] For the State, Bogdanich testified that he is an Operating Engineer for CSU and has worked for CSU for eleven years. The Kubota was a vehicle he drove every day for his job, and he was very familiar with it. He described the vehicle as looking like a pick-up truck, but about half the size. Bogdanich testified when driving the Kubota, he does not have any means to indicate to other drivers when he is making a turn, as it does not have turn signals. He is not able to make hand signals out of the window because the windows do not open. The only operating lights on the vehicle are the headlights and brake lights.

Bogdanich testified that on the day of the accident, a semi-truck had just made a delivery and was preparing to pull on to Cougar Drive. Bogdanich was instructed by his foreman to block traffic on Cougar Drive so that the semi-truck could pull on to the road. Bogdanich testified that he turned out of a parking lot, on to Cougar Drive, and did not see any traffic. He travelled about 20 to 25 feet, slowed the Kubota, and started to make a left turn to go across the road to block traffic in both directions.

Bogdanich testified that when he started to make his left turn, his vehicle was struck on the front driver-side. Bogdanich described a push-bar on the front of the Kubota as the part of the Kubota that likely came into contact with Claimant’s vehicle. Bogdanich estimated that the vehicle that hit him was travelling approximately 30 miles-per-hour, based upon the distance he assumed the vehicle travelled after he had looked for traffic. Bogdanich testified that both vehicles immediately stopped, and both were able to stop in the same approximate position where the contact occurred.

After the accident, Bogdanich and Claimant exited their vehicles, and then proceeded to CSU’s police station to file a report. Bogdanich stated that the Kubota’s front wheel was damaged from the collision, but there was no body damage.

LEGAL ANALYSIS

For a claim alleging negligence in an automobile accident, “the trier of fact must determine that it was the duty of the Respondent at the time of the occurrence to use ordinary care for the safety of a claimant, and that his failure to do so caused the injury or property damage to the claimant. Young v. State, 48 Ill. Ct. Cl. 416, 418 (1996).

As observed in Katzenberger v. State, 43 Ill. Ct. Cl. 218, 221 (1991), the Illinois Vehicle Code states that a driver should not perform a U-turn “unless such movement can be made in safety and without interfering with other traffic.” See 625 ILCS 5/11-802(a). Although the State driver in this case was not turning his vehicle for the purpose of going in the opposite direction, like in a U-turn, he was executing essentially the same maneuver in order to block traffic in both lanes. He had a duty to execute this maneuver with care and to ensure that it was safe to make a turn that is otherwise not expected by other drivers. See Id. at 221-222 (“Operators of State vehicles are charged with the same duty of care as other drivers upon the highway, and the State is liable for damages proximately caused by their negligent acts”).

Bogdanich testified that he checked for traffic when he pulled out of the parking lot he was in, and after turning on to Cougar Drive he drove 20-25 feet and executed a left turn from [*205] the right lane to block traffic. He did not testify that he slowed or stopped in order to check traffic again before executing his turn to block traffic. Adding to the danger of executing this turn in the middle of road is the fact that the State vehicle did not have electronic turn signals, or allow any other means for the driver to indicate a turn, such as using hand signals.

This case is somewhat akin to Young v. State, 48 Ill. Ct. Cl. 416 (1996), in which a State salt truck driver testified that when he changed lanes on a highway, he signaled approximately 200 feet before his lane change, and had checked his mirrors before actually changing lanes to ensure there were no vehicles in the lane. The claimant in that case was travelling in the lane the truck turned into and was unable to avoid a collision with the State vehicle. The Court stated the “testimony of a driver that he looked but did not see will not absolve him of a charge of negligence occasioned by failure to look.” Id. at 419 (citations omitted). In awarding the claimant damages, the Court stated further that regardless of whether the State driver “signaled his lane change or turn, he had a duty to see a vehicle overtaking him at a relatively slow rate of speed.” Id. at 419. See also Powell v. State, 38 Ill. Ct. Cl. 162 (1985) (State snow plow executing a U-turn from the shoulder of the road was an unusual maneuver and not to be expected by a reasonable driver).

This case is even more straightforward than Young, as Bogdanich did not and could not signal the turn he made. Further, he did not testify that he checked traffic before executing his left turn to block traffic. He only testified that he checked traffic before initially turning on to Cougar Drive, and not thereafter when he was making his left turn. If Bogdanich had slowed or stopped in order to make a proper lookout, he would have seen the Claimant’s vehicle approaching. Thus, by executing a turn without making a proper lookout or signaling, the State driver caused the two vehicles to come into contact, resulting in damages to the vehicle Claimant was driving.

Bogdanich’s testimony that Claimant was travelling at a high rate of speed was not credible. Bogdanich admitted that he did not see the Claimant’s vehicle before it came into contact with his vehicle, so he could not accurately testify as to how fast the vehicle was going. He also testified that both vehicles were able to stop in approximately the same position they were in when the contact occurred. Bogdanich’s testimony that Claimant’s vehicle struck his vehicle is also not accurate based on the testimony, as Bogdanich admittedly executed a turn into the middle of the road, causing the front of his vehicle to come into contact with Claimant’s vehicle.

However, Claimant is not without fault in this matter. Claimant had a duty to use due care while operating his vehicle, and an award will be reduced if a claimant is partially at fault for an accident. See Duprey v. State, 43 Ill. Ct. Cl. 280, 288 (1994). In this case, Claimant testified that he was aware that construction was on-going in the area, and that the Kubota was a part of these operations. When the Kubota began to pull to the side of the road, Claimant proceeded to pass the Kubota, rather than slowing down or stopping to verify what the Kubota’s intentions were. By failing to slow down or stop before overtaking a vehicle in a construction zone, Claimant shares in the fault of the accident, and his award should be reduced by 40% (or $1,434.36).

[*206] At the end of its closing argument, the State made an argument, almost in passing, that the claim was not the Claimant’s to bring because his mother was the actual owner of the vehicle. Without more, it appears that the State is arguing that Claimant, although he was driving the vehicle and paid for repairs to the vehicle, does not have standing to seek recovery of those damages because he is not the owner of record.

Prior to the end of its closing argument, the State provided no notice that it would be pursuing such a defense. Importantly, the ownership of the vehicle was not discovered only at trial, as the Illinois Motorist Report from the accident included this information and was attached to the December 2016 Complaint. The State did not file a dispositive motion on this point and did not file any affirmative defenses that would have provided notice to the pro se Claimant and an opportunity to respond. By failing to assert this affirmative defense, the State waived the defense. See Lebron v. Gottlieb Memorial Hospital, et al., 237 Ill.2d 217 (2010) (“Under Illinois law, lack of standing is an affirmative defense, which is a defendant’s burden to plead and prove. While a lack of subject matter jurisdiction cannot be forfeited, a lack of standing will be forfeited if not raised in a timely manner in the trial court.”) (internal citations omitted); See also Contract Development Corp. v. Breck, 255 Ill.App.3d 660, 665 (1994) (lack of standing not pled as an affirmative defense deemed waived).

For the above stated reasons, the Claimant should receive an award of $2,151.54.