Lusvey Morales v. State of Illinois

OPINION

BIRNBAUM, CJ.

These claims arise from a tragic passenger van/truck crash on Route 47 in McHenry County. Claimants are family members who were passengers in a 1995 Ford van driven by Francisco Ramirez, who is related to all Claimants. Claimants allege that an IDOT snowplow traveling southbound on Route 47, a two-lane highway, had part of its snowplow blade in Ramirez’s northbound lane. To avoid hitting it, Claimants allege that Ramirez moved his van to the right side of his northbound lane, but then lost control of the van after passing the snowplow when moving back towards the center of his northbound lane.

During the loss of control, the van slid from Ramirez’s northbound traffic lane into the southbound traffic lane and was struck by a semi-tractor truck driven by James Castle of Caffero Trucking. The collision resulted in a fatality of a child passenger and caused serious injuries to all other Claimants. The driver of the van, Francisco Ramirez, was also injured in the accident, but did not file claims against the semi-tractor truck driver or the IDOT snowplow driver.1

Lusvey Morales, the wife of Francisco Ramirez, brings these claims individually and on behalf of their three minor children, JR-M, then age 10, decedent DR-M, then age 6, and SR-M, then age 18 months. Francisco Ramirez is the father of the minor children. The remaining Claimants are Andres Valdivia-Morales (the nephew of Lusvey Morales) and his wife Marisela Gallardo, both of whom lived with Lusvey Morales, Francisco Ramirez, and their minor children in Woodstock at the time of the accident.

Claimants’ main allegation of negligence against Respondent’s snowplow driver is that he drove with a portion of the snowplow’s blade in Claimants’ lane as he approached and passed Claimants’ van. Claimants also allege that the snowplow driver was negligent for driving fifteen

In accordance with Court of Claims Act 705 ILCS 505/25, requiring Claimants to exhaust other remedies before seeking determination in the Court of Claims, Claimants were plaintiffs in a 2009 consolidated lawsuit filed in McHenry County against James Castle, Caffero Trucking (the company Castle worked for), and Francisco Ramirez. The lawsuit alleged Ramirez was negligent for driving too fast for conditions. Against Castle, the lawsuit alleged that the defective condition of his brakes inhibited him from being able to stop his truck in time to avoid the collision when Ramirez lost control of the van and crossed into Castle’s lane of traffic. With respect to Castle, the lawsuit was settled for $200,000 and split among some of the Claimants. With respect to Ramirez, the lawsuit was settled for the insurance policy limits of $40,000, split equally among all six Claimants.

[*124] miles over the 25 mph-limit set by IDOT guidelines for its snowplow drivers that are plowing on a two-lane roadway. They further allege negligence because the snowplow driver failed to pull over to the right when there was oncoming traffic. A hearing was held before Commissioner Joseph Cavanaugh on December 20, 2017, where testimony was given by Lusvey Morales, Francisco Ramirez, Andres Valdivia-Morales, and Marisela Gallardo. Also 20 discovery depositions taken over the years were entered into evidence as evidentiary depositions. Both parties filed post trial briefs.

FACTUAL BACKGROUND

At around 2 p.m. on Friday, December 19, 2008, Francisco Ramirez was driving a 1995 Ford van northbound on Route 47 in Huntley, Illinois, enroute to the family residence in Woodstock. It was the first time that Ramirez had driven the van, which he had borrowed from his cousin to take his family Christmas shopping that day in Elgin. Ramirez’s own vehicle was a smaller car and at an auto mechanic at the time.

There were six passengers in the van: Francisco was in the driver’s seat; JR-M (then ten) was in the front passenger seat; Lusvey Morales was sitting in the second row of the van right behind JR-M along with SR-M (then 18 months); and decedent DR-M (then 6) was seated in the third row with Marisela Gallardo and Andres Valdivia-Morales.

Route 47 is a State highway that also serves as an exit from I-90 northbound through McHenry County. At the location of the accident, near Huntley, Route 47 had two lanes, one heading north and the other south. The lanes are separated from each other by a broken yellow line (center line), and on the right of each lane is a solid white line (edge line) demarcating where the lane ends, and the shoulder begins. The width of each lane, measured between the edge line and center line, is 12 feet. Various witnesses reported that the area had accumulated snowfall the night before and there had been some light snow earlier on the day of the accident. Accident investigators measured snow spanning a width of one to two feet on the right side of each lane. At the time of the accident, it was clear and sunny, and the roads were slushy.

Against this backdrop, Mr. Ramirez was traveling northbound. At the same time, coming from the southbound lane was the snowplow. About 100 yards behind the snowplow was an SUV, which did not stop after the accident. About 200 yards behind the snowplow was a semitractor trailer truck driven by James Castle. Following closely behind James Castle was a vehicle driven by Thomas Manley.

According to the snowplow driver, Mohammed Qureshi, the snowplow was an orange, three-ton dump-truck type vehicle with one large blinking orange safety bar light on the top, mars lights on the sides and corners, and a plow blade attached to the front. Claimant’s expert witness, Mr. David Sallman, opined that the blade was ten-and-a-half feet wide and that the width of the truck was 7 feet 10 inches. Qureshi explained that, when plowing snow, the blade was angled toward the right side of the road and formed a diagonal spanning the width of the truck such that the blade’s left and right sides lined up with the left and right sides of the truck.

[*125] Mr. Ramirez testified that he was driving between 30 and 35 mph and that when he first noticed the snowplow, it was “a long distance” away and was in its own lane with the blade down.2 Nonetheless, he started slowing down. Some point thereafter; while the snowplow was still “a long way off,” he saw the blade of the plow cross over the yellow center line dividing the northbound and southbound lanes. He testified that, as the snowplow got closer, a good portion of the blade was in his lane.

In his cross-examination at the December 20, 2017 hearing, he stated that the snowplow was “very close” when the blade crossed over into his lane. In his discovery deposition taken on May 20, 2010, he stated that the first time he saw the snowplow, it was 10 meters away with its blade down and that the blade took up half his lane. In his discovery deposition taken on June 24, 2015, he stated that the first time he saw the snowplow it was about a football field away and it had its blade down, with a portion of it in his lane - he specified that the blade was tilted at an angle and that a lot of it was in his lane, but he was unable to describe exactly how much.

Ramirez testified at the hearing that he thought that if he did not move over, he was going to strike the plow and get into “an ugly accident.” In his June 24, 2015 deposition, Ramirez explained that when he saw the blade in his lane, he “freaked out” and thought it was going to move out of his lane; but when it didn’t, he had no option but to move over to the right when he was about to pass the snowplow. After he passed the snowplow without contact, he tried maneuvering left, back into the main portion of the lane, and his vehicle started sliding. He lost control, and the rear driver’s side portion of the van crossed over into the oncoming lane and was struck by the semi. However, in an interview taken soon after the accident, conducted in Spanish with Officer Maldonado (one of the accident investigators), Ramirez stated that his vehicle began to slide when he moved slightly right toward the shoulder.

Andres Valdivia-Morales (the nephew of Claimant Lusvey Morales) testified that he also saw the snowplow’s blade in their lane. Sitting in the center seat of the van’s third row, ValdiviaMorales first saw part of the blade in their lane when the snowplow was about 30 to 40 meters away.

Andres Valdivia-Morales’s wife, Marisela Gallardo, testified that she was sitting in the third row but could not recall exactly where within the third row she was sitting. She testified that when she first saw the snowplow, it was “real close” and the blade was partially in their lane. In her November 13, 2009 discovery deposition, she specified that the blade took up half their lane. Lusvey Morales also testified but was attending to her child when the accident occurred and did not see the snowplow.

James Castle, the driver of the semi, testified that he was traveling southbound approximately 200 yards behind the snowplow for a few miles. According to Castle, both he and the snowplow were traveling at about 40 mph. He stated that during that entire time, he observed that the blade was down and that he did not think it ever crossed over the broken yellow center

Although Ramirez did not indicate whether the plow was down the whole time that he saw it, he recounted in one of his statements to the police taken on the day of the accident, that the plow had first been up and that it was brought down when the snowplow was closer to his vehicle.

[*126] line into the northbound lane. In his interview with police after the accident, he stated that he never saw the blade or the snowplow cross into the other lane.

Castle testified that when he saw Ramirez lose control of the van, the snowplow was “long gone” about 125 yards past the van. Suddenly, when Ramirez’s van was 50 feet to 75 feet away from Castle, the van began to fishtail across the center line into Castle’s southbound lane. As the van moved sideways into the front of his truck, Castle veered a little to the right and put his brakes on, but he was unable to avoid the collision. The left front fender and left front corner of his truck collided with the left rear quarter panel of the van.

The collision had horrific consequences:

• Six-year-old DR-M, daughter of Lusvey, died at the scene.

• Lusvey’s thirteen-month-old daughter, SR-M, suffered a traumatic and permanent

brain injury.

• Lusvey’s son, JR-M, suffered scar producing cuts and lacerations.

• Lusvey suffered a fractured humerus.

• Andres Valdivia-Morales sustained multiple fractures including his pelvis.

• Marisela Gallardo was ejected from the van producing a head injury and scarring.

Both Castle and Ramirez were issued citations after the accident. Ramirez was issued a citation for driving too fast for conditions, to which he pled guilty. Castle was issued several citations for his brakes, including a citation for the number of defective brakes in his truck being equal to or greater than 20 percent of the service brakes on the vehicle.

The snowplow driver, Mohammed Qureshi, had no idea that he was implicated in this accident until the next day, when deputies from the McHenry County Sheriff’s Department visited him for a statement pursuant to their accident investigation. Qureshi, who at the time of the incident had been an IDOT highway maintainer for almost seven years, advised the officers that he did not recall seeing anything out of the ordinary while plowing Route 47 southbound during that time and that he always looked in his rear-view mirrors. He recalled that he had been driving with his snowplow blade down the whole time because there was a lot of snow.

He informed officers that he is always very careful about oncoming traffic and that anytime he sees oncoming traffic, he steers toward the right side of the road to avoid striking any vehicles. He did not reference any section of the IDOT manual stating that plow drivers must pull over to the right side of the road when oncoming traffic is approaching. Neither did Claimants. Qureshi clarified in his testimony that he does not pull over to the right anytime there is traffic coming from the opposite lane; he only pulls over to the right if there is an emergency or if he is blocking traffic.

Qureshi testified that he did not recall seeing any accidents on the day in question. When asked whether he might have gone over the center line and into Ramirez’s lane at any point, he could not recall. When asked about IDOT snowplow protocol regarding speed, he stated that the limit is 25 mph when the blade is down, and he is plowing. When the blade is up, the protocol’s [*127] speed limit is 45 mph. This information is confirmed by the IDOT Bureau of Operations Policy Manual.

David Sallman, Claimants’ accident reconstruction expert testified about his seven written opinions, four of which concerned Mr. Castle and three, Mr. Qureshi. Regarding his written opinions about Mr. Castle, Mr. Sallman testified that Mr. Castle was negligent because he had enough time to prevent the accident when the van came into his lane, but due to the condition of his brakes, his truck was unable to stop and avoid impact with the van.

Sallman rendered the following three written opinions about Mr. Qureshi:

[1] That prior to and at the time IDOT snowplow operated by Mr. Qureshi approached

and passed the Claimant’s vehicle with its plow down in a southerly direction on Route

47, it was traveling at a speed more than that allowed by IDOT snowplow safety

regulations.

[2] The excessive speed of the snowplow truck decreased the time and distance needed

for Mr. Qureshi and Mr. Ramirez to perceive and react to the subject incident.

[3] Mr. Qureshi did not pull over to the right side of the road when Ramirez’s van passed

him.

Although he had no written opinions regarding whether Qureshi’s snowplow blade crossed the center line, Sallman testified that several of his written opinions regarding Castle’s and Qureshi’s negligence were based on Ramirez’s deposition testimony that the snowplow’s blade was over the center line. In explaining why he believed this was evident, Sallman referenced the accident-scene photographs taken by accident investigators on the day of the accident. He testified that the photographs show snow covering about one to two feet of the right side of the 12-foot-wide southbound lane but not the northbound lane, where all the snow is pushed onto the shoulder.

He opined that if the snowplow’s blade had been completely in its lane, there would not have been one to two feet of snow on the right side of the lane because the snowplow would have plowed the entire width of the lane since its blade was about the same width as the 12-footwide lane. But he admitted that he had not measured the snowplow or its blade and was stating its dimensions based on what he thought he had read in the materials he reviewed. Based on measurements Sallman later took, the snowplow blade was actually 10.5 feet, and the width of the snowplow’s bumper was approximately 8 feet. Further, he admitted that his conclusion was based on assuming that the blade was perpendicular to the snowplow. However, he acknowledged that the blades are angled so that snow can be pushed off to the side of the road. He did not know what angle the snowplow’s blade was at but agreed that if it was at an angle, the snowplow would have plowed less than the entire lane. The Court finds based on all the evidence, that at the time of the accident, the snowplow blade was angled such that the left and right sides lined up with the left and right sides of the truck and accordingly covered a span slightly less than 8-feet-wide.

[*128] Sallman’s characterization about the snow on the northbound lane being cleared onto the shoulder is contradicted by the pictures he referenced - all of which show that the right sides of the northbound lane and the southbound lane were each covered with one to two feet of snow. Further, Deputy Teresa Harper, the lead accident investigator from the Sheriff’s Office, who took measurements of the accident scene, testified there was about one to two feet of snow on the right side of each lane.

This amount of snow on the right side of each lane is consistent with the testimony of Qureshi and his supervisor Mr. Bryant Burnell, who both testified that standard operation was to plow closer to the center line and leave about one foot of snow on the right side of the lane.

ANALYSIS

To prove a cause of action is negligence, Claimants must establish the following facts by a preponderance of the evidence: the existence of a duty that Respondent owed; Respondent’s breach of that duty; and that Claimants suffered damages that were proximately caused by the breach of that duty. Rech v. State, 66 Ill. Ct. Cl. 232, 236 (2014). The general duty owed is to use reasonable care to protect from a foreseeable risk of harm.

Here, Claimants allege three acts by Mr. Qureshi where he breached his duty to use reasonable care: 1) He was driving with his snowplow blade in Mr. Ramirez’s lane; 2) He was driving his snowplow 15 mph faster than suggested by IDOT guidelines; and 3) He did not pull over when Ramirez’s van was passing him in the opposing lane. Each is discussed in turn below.

The first allegation of negligence is that the snowplow’s blade was in Claimants’ lane. If this act occurred, it would be a breach of Respondent’s duty to use reasonable care. The issue here is whether Claimants have established that it is more likely than not that the blade was in their lane.

The only independent witness who saw the snowplow before the accident was James Castle. He testified that he had been traveling behind the snowplow for several miles and that he did not see the snowplow blade cross into Claimants’ lane. And in his interview with police after the accident, he stated that he did not see the snowplow or its blade ever cross into Claimants’ lane.

Claimants offer testimony from three people stating the blade entered their lane: Ramirez, who was the driver of the van and is related to all the Claimants in this case, his nephew Andres Valdivia-Morales and niece Marisela Gallarado, who were both seated in the third row of the van.

Ramirez had different versions of events on different occasions with respect to key details regarding the snowplow blade. In his statements to the police after the accident, he stated that he lost control of his vehicle while pulling to the right to avoid the snowplow blade. But he testified at the hearing that he lost control when he was moving back into the middle of the lane - after he had pulled to the right to avoid the snowplow blade and the snowplow had passed him. He also offered conflicting testimony regarding how far away the snowplow was from him when [*129] he first saw its blade in his lane. On different occasions he recalled it being either “a long way off,” “very close,” 10 meters away, or a football field away. The testimony from Andres Valdivia-Morales and Marisela Gallardo does not clear this issue up. Valdivia-Morales said the snowplow was 30 to 40 meters away when he saw its blade in their lane; and the first time Ms. Gallardo said she saw the snowplow, its blade was in their lane, and the snowplow was “really close” to them.

Inconsistencies and contradictions aside, the substance of the testimony presented by Ramirez, Valdivia-Morales, and Gallardo does not reconcile with common sense and experience. Both Ramirez and Marisela Gallardo at some point testified that the blade took up at least half their lane. But since the blade was angled so that its left and right sides lined up evenly with the width of the snowplow itself, the only way the blade could have been in half their lane was if the snowplow was in half their lane too. This means that four to five feet of the 8-foot-wide snowplow was traveling in the wrong traffic lane. Surely, James Castle, traveling 200 yards behind the snowplow, would have noticed such an unusual and incredible sight. However, Castle told the police investigators after the accident that he never saw the snowplow go into the other lane. And Ramirez, in his June 24, 2015 deposition, stated specifically that the snowplow itself never crossed into his lane.

Based on all the above, we find that Claimants have failed to meet their burden to prove that it is more likely than not that the snowplow blade was in Ramirez’s lane. The testimony attempting to establish that the blade was in Claimants’ lane lacked credibility because it contained inconsistencies, contradictions, and descriptions of improbable scenarios.

As for the second allegation of negligence, Qureshi’s speed exceeding IDOT guidelines for its snowplows, we find that the testimony supports a finding that Qureshi was going approximately 40 mph at the time of the accident. This was in excess of IDOT Policy guidelines setting the speed of snowplows on a two-lane highway at 25 mph when the snowplow blade is down. The Court does not find that Qureshi’s 40 mph speed at the time he approached and passed Ramirez’s van, in excess of the IDOT Policy guidelines, constitutes a violation of a statute, ordinance, administrative ruling, regulation, or order. Accordingly, those guidelines do not establish a duty or breach thereof.

Also, the speed of the snowplow was not a proximate cause of Claimants’ injuries. “Proximate cause is any cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause or the last cause or the nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which, in combination with it, causes the injury. (Definition adopted by Court from Illinois Pattern Jury Instructions).” Harry W. Kuhn Redi-Mix Concrete v. State, 45 Ill. Ct. Cl. 33 (1993).

Claimants note that even if Qureshi’s snowplow blade never crossed the center line, he would have been driving close to the center line because that was standard operating procedure. They argue that Qureshi driving his snowplow close to the center line while driving 40 mph - 15 mph faster than the IDOT guidelines - was one of the proximate causes of Claimants’ injuries because that conduct caused Ramirez to pull over to the right and set in motion the chain of events that led to Claimants’ accident and injuries.

[*130] Claimants offer no support for this proposition aside from arguing that a reasonable person would feel the need to pull over to the right if he saw a snowplow going 40 mph near the center line. We disagree. Qureshi might have been going faster than IDOT guidelines for their snowplows, but he was still going under the legal speed-limit, which Deputy Teresa Harper testified was 55 mph. Semi-trucks larger than the snowplow would have been going at Qureshi’s speed or greater (Castle, for instance, testified that he was going 40 mph). We find that a snowplow going 40 mph, 15 mph below the speed limit, would not compel a reasonable person to feel the need to veer to the right.

Further, the continuous chain of proximate cause-related events in this case did not begin with the van moving to the right. Ramirez testified that he lost control over the van when he tried moving back into the middle of his lane - after he had moved to the right and let the snowplow pass. This is corroborated by Castle, who testified that the snowplow was about 125 yards past Ramirez’s van when Ramirez started losing control. We find that Ramirez’s negligence in being unable to maintain control over his vehicle was the proximate cause of Claimants’ injuries. Accordingly, we find that Claimants have not met their burden in establishing that it is more likely than not that Qureshi driving 15 mph over the limit stated in the IDOT guidelines proximately caused Claimants’ injuries.

With respect to the third act of alleged negligence, Claimants mention several times that Qureshi stated he was supposed to pull over every time a vehicle was approaching in an opposite lane. To be sure, he said this several times. He even mentioned it to the investigating officers right after the accident. However, he clarified later in his deposition that he did not mean he pulls over every time - only in emergency situations or if he is blocking traffic.

Despite Qureshi offering this clarification, Claimants rely on his testimony as establishing a duty under IDOT rules for snowplow drivers to move over to the right every time oncoming traffic is approaching. Notably though, Claimants do not cite any actual regulation from IDOT requiring its snowplow drivers to do so. Based on common sense, if such a regulation existed, it would effectively make it impossible for a snowplow to plow a busy twolane highway. We find that Claimants have failed to prove by a preponderance of the evidence that Respondent’s employee, Qureshi, had a duty to pull over to the side of the road while Claimants were passing.

The Court finds that Claimants have failed to meet their burden of proof in establishing by a preponderance of the evidence that Respondent was negligent and accordingly the claims are denied.