Mike Young v. State of Illinois

OPINION

BIRNBAUM, CJ.

This claim is before the Court by way of an evidentiary hearing conducted April 25, 2017 before Commissioner Murphy in Springfield, Illinois. The Court commends Commissioner Murphy for the thoughtful manner in which she managed these proceedings.

The Claimant, Mike Young, Administrator of the Estate of Rebecca R. Young, brings this negligence action against the State of Illinois seeking monetary damages for the death of eighteen (18) year-old Rebecca Young. Claimant alleges Respondent was negligent by failing to inspect the roadway, failing to properly maintain the roadway, or failing to properly warn of hazards in the roadway. This two count Complaint was filed December 10, 2013 seeking $100,000 in damages under the Survival Act and the Wrongful Death Act. Claimant’s Second Amended Bill of Particulars seeks $1,044,459.13 in damages, subject to any applicable statutory caps.

Respondent asserts Claimant’s decedent was guilty of negligence which proximately contributed to cause the injuries and damages complained of in the Complaint. Respondent asserts it was not on notice, actual or constructive, of any dangerous condition with regard to the allegations made in Claimant’s Complaint. Respondent asserts in the alternative that the alleged condition of the roadway was an open and obvious condition with no duty to warn of or guard against.

TESTIMONY ON BEHALF OF CLAIMANT

Mr. Stephen Poston

Mr. Stephen Poston testified that on December 13, 2011 at approximately 6:00 a.m. he was traveling southbound on Illinois Route 3. While driving on Route 3, he was involved in a motor vehicle accident just north of Shawneetown Trail. Mr. Poston testified that his vehicle “hit a puddle of water,” he lost control and his vehicle then left the roadway to the right side, traveled down a “bank,” and hit a sign owned and controlled by the Illinois Department of Transportation (IDOT). Before hitting the water, his vehicle was traveling between 53 and 55 miles per hour (mph). Mr. Poston did not see the puddle of water until he was “upon it.” After the accident, he [*155] called 911. Officer Kenneth Kempfer responded to the scene of the accident. Officer Kempfer verified there was water on the roadway. He did not issue Mr. Poston a citation.

On cross-examination, Mr. Poston testified that before December 2011 he encountered water on the roadway in different places on Route 3. After his car hit the puddle of water on December 13, 2011, Mr. Poston did not depress the gas pedal; he “let off the gas pedal.” He did not know how long the pool of water remained on the roadway after his accident.

Mr. Kenneth Kempfer

Mr. Kenneth Kempfer, a retired Randolph County sheriff’s deputy, testified that on the morning of December 13, 2011 he responded to a motor vehicle accident on Illinois Route 3 near Shawneetown Trail involving Mr. Poston’s vehicle. After arriving on scene, Officer Kempfer observed standing water on the roadway and a damaged sign owned and controlled by IDOT. After conducting an accident investigation, he indicated a primary and secondary contributing cause on his traffic crash report. As a primary cause, he indicated “road engineering, surface, or marking defects.” As a secondary cause, he indicated “weather.” Officer Kempfer alerted dispatch that a state-owned sign had been damaged during the accident. He presumed dispatch would notify IDOT about the damaged sign. He did not issue Mr. Poston a citation. Before Ms. Young’s accident, Officer Kempfer drove by the Poston accident scene and witnessed IDOT repairing the state-owned sign that sustained damage.

Office Kempfer further testified that on December 13, 2011 he was on scene after Ms. Young’s traffic accident. He stated that her accident occurred at the same location as Mr. Poston’s accident and involved the same area of standing water. Officer Kempfer spoke with Master Sergeant Robert Ventura (MSgt. Ventura) with the Illinois State Police. MSgt. Ventura indicated in his report that Officer Kempfer described standing water of one to three inches covering the western half of the southbound lane of Route 3.

On cross-examination, Officer Kempfer testified that he did not have any formal training in accident reconstruction. After investigating Mr. Poston’s accident, he indicated as a primary contributing cause “road engineering, surface, or marking defects” because of standing water on the roadway. Officer Kempfer did not call IDOT and advise them of standing water on Route 3. When he noticed IDOT employees repairing the state-owned sign after Mr. Poston’s accident, but before Ms. Young’s accident, Officer Kempfer did not stop to advise the employees of the potential for standing water on the roadway. He could not recall if the water was still standing when he drove through the area before Ms. Young’s accident.

On redirect examination, Officer Kempfer testified that he believed it was his job as a law enforcement officer to determine when driver error or driver misconduct causes an incident or accident. He did not issue Mr. Poston a citation for his traffic accident because he did not “feel that it was negligence.”

[*156] Mr. William Frazer

Mr. William Frazer, an employee of Ameren, testified that on December 13, 2011 at approximately 2:20 p.m. he was involved in a motor vehicle accident with Ms. Young. At the time of the accident, Mr. Frazer was driving an International line truck (bucket truck) for Ameren. It had rained all day until approximately 2:00 p.m. The accident occurred at approximately 2:20 p.m. He was traveling north on Route 3 when he collided with Ms. Young’s blue sedan. Before the accident, Ms. Young was traveling south on Route 3 when her vehicle veered to the right then veered to the left into the northbound lane. After Ms. Young’s vehicle entered the northbound lane of Route 3, Mr. Frazer’s Ameren truck struck Ms. Young’s passenger side door. Ms. Young’s vehicle was already off the right side of the road when Mr. Frazer first noticed it. Mr. Frazer began to slow down when he saw Ms. Young’s vehicle off the road because he was going to lend her assistance. As Ms. Young’s vehicle came closer to Mr. Frazer’s truck, “the car immediately did a snap turn, went across the road” directly in front of Mr. Frazer. Mr. Frazer could not stop his truck in time to avoid the collision. After the collision, Mr. Frazer called Ameren dispatch to report that he was involved in a head-on collision with a vehicle just north of Shawneetown Trail on Route 3. He then exited his truck and ran to Ms. Young’s vehicle. He thought he heard Ms. Young “gurgling” so he tried to hold her head up straight to help her breathe. Mr. Frazer’s son arrived at the scene and tried to lend assistance. Mr. Frazer told his son to retrieve towels from his truck to help clean up Ms. Young. Shortly after Mr. Frazer began rendering assistance, a police officer arrived and took over helping Ms. Young.

Mr. Frazer testified that he has worked for Ameren and driven Route 3 daily for almost 40 years. During that time, he witnessed standing water in the area in question after it rained. He noticed the water on the southbound lane would puddle because it could not reach the drain to exit the highway. When he drove his Ameren truck through that area after it rained it would “throw water everywhere” and block his vision.

On cross-examination, Mr. Frazer testified that he would take precautions and slow down if there was standing water when he drove through the area in question. He knew every time it rained there was the potential for water to pond in that area. After the accident, when Mr. Frazer ran down to Ms. Young’s vehicle, her eyes were not open. He believed she was unconscious. He reiterated that he did not see Ms. Young’s vehicle hit the water. Mr. Frazer noticed the stateowned sign sustained damaged when he drove past it between 7:30 and 8:00 a.m. on December 13, 2011. He thought, “That’s odd. There’s been a wreck here today or this morning.”

On redirect examination, Mr. Frazer testified that before Ms. Young’s vehicle turned sharply it was headed toward a 40-foot decline into the woods.

Mr. Robert Ventura, Jr.

MSgt. Ventura with the Illinois State Police testified that on December 13, 2011 he participated in an accident reconstruction. After his investigation, he drafted a Level A traffic crash reconstruction report. At that time, Level A was the most comprehensive report. MSgt. Ventura’s Level A report indicates he arrived on scene at 4:57 p.m., a little over two hours after Ms. Young’s accident. MSgt. Ventura learned the crash originated in the southbound lane of [*157] Route 3 where water had pooled. MSgt. Ventura conducted a follow-up phone call with Officer Kempfer on March 15, 2012. Officer Kempfer informed MSgt. Ventura that upon Officer Kempfer’s arrival on scene, there were approximately one to three inches of water covering the western half of the southbound lane for approximately 15 yards. MSgt. Ventura did not see any water in the area in question when he arrived on scene two hours after the accident. MSgt. Ventura concluded that Ms. Young’s vehicle left Route 3 to the west because there were tire marks in the grass. Once in the grass, Ms. Young’s vehicle struck the same state-owned sign that Mr. Poston struck that morning. Ms. Young’s passenger side tail lamp struck the signpost leaving embedded pieces of it in the post.

MSgt. Ventura concluded friction marks on the road along with Ms. Young’s vehicle’s airbag control module provided evidence that her vehicle experienced a hydroplaning event when the vehicle left the roadway. Airbag modules have recording capabilities. If a certain parameter within its algorithm is met, it will record certain data. Once enough force is applied that meets the algorithm standard, the airbags deploy, and the module records data prior to the airbags deploying. MSgt. Ventura used the airbag module from Ms. Young’s vehicle to analyze specific data related to the last five seconds of her driving. The data included: the speed reported to the speedometer, braking data, steering wheel data, throttle percent, and revolutions per minute (rpm). The data is recorded asynchronously - each category is recorded within onesecond intervals.

Based on the data from Ms. Young’s airbag module, MSgt. Ventura concluded there was a hydroplaning event. The data recorded between minus four and minus three seconds showed a significant increase in speed from 57 mph to 65 mph. During that same time period, Ms. Young’s engine speed jumped 2,000 rpm’s to 5,248 rpm’s. Based on the above data, MSgt. Ventura concluded the hydroplaning event began during this time period. He attributed the substantial increase in reported speed because Ms. Young’s wheels started to slip due to the water. Water allows the wheels to rotate more easily. When wheels slip in the water the module will over report speed data. Ms. Young’s airbag module reported severe changes in steering wheel angle. During four seconds of data, her steering wheel angle went from a gradual turn to the right to making a significant input to the left and then more of an input to the left then back to the right. MSgt. Ventura believed this data further supports his conclusion there was a hydroplaning event. The steering wheel data suggests counteractive steering because the wheels began to slip.

MSgt. Ventura included in his Level A report details of Mr. Poston’s earlier crash related to the water accumulation at the same location. Based on the information provided to him at Ms. Young’s accident scene, MSgt. Ventura concluded that both vehicles (Mr. Poston’s and Ms. Young’s) left the roadway due to a hydroplaning event. Based on observations he made at the scene with respect to the tire marks, gouge marks in the road, along with the airbag module data, MSgt. Ventura concluded Ms. Young’s vehicle encountered standing water on the roadway, hydroplaned, then left the roadway. His official conclusion as to what caused Ms. Young’s accident was improper lane usage by Ms. Young - a determining factor was the standing water recorded on the roadway. MSgt. Ventura acknowledged that his improper lane usage designation does not account for why Ms. Young’s vehicle left the roadway. He further opined that Ms.

[*158] Young’s minimal driving experience may have contributed to her reaction to driving through standing water on the roadway.

On cross-examination, MSgt. Ventura testified that Ms. Young’s response to the water was improper. A proper response to a hydroplaning event includes reducing acceleration by removing the foot off the pedal which allows the wheels to catch back up with roadway friction. He noted that the Rules of the Road booklet outlines how drivers should respond to a hydroplaning event. He agreed that Ms. Young may have read the Rules of the Road booklet because she was a licensed Illinois driver. He agreed that Ms. Young presumably knew what to do when she encountered standing water in the roadway and that Ms. Young’s increase in speed could have been an intentional act.

On redirect examination, MSgt. Ventura testified that he is not aware of any driver education courses in Illinois that take drivers at highway speed through standing water. He further testified that slowing down before encountering a condition like standing water is a proper response. He agreed there was no evidence of what was in Ms. Young’s mind or what Ms. Young may or may not have observed prior to her accident.

Mr. Fred Peters

Mr. Fred Peters testified as a notice witness. Mr. Peters is 67 years old and has lived in Randolph County his entire life. He lives in Ellis Grove. He worked 28 years for the Department of Mental Health (Chester Mental Health) then worked 16 years part-time as a police officer in Ellis Grove. While working for Chester Mental Health, he would travel on Route 3 and pass Shawneetown Trail road five days a week. He estimated that he has driven that stretch of road 10,000 - 20,000 times. Mr. Peters was aware of Ms. Young’s fatal crash. More specifically, he was aware of the area where the crash occurred. He testified the area was always prone to standing water after it rained. Mr. Peters stated, “It was a very dangerous spot.” After a rain, water would pool to about two-and-a-half to three inches in the southbound lane of Route 3. The area in question had standing water issues since Mr. Peters was 16 years old.

On cross-examination, Mr. Peters testified that pooled water would remain on the area in question usually until a tractor-trailer would splash the water off the road. He did not know for certain how long the standing water would remain after it rained.

Mr. Mark Gard

Mr. Mark Gard, an employee for IDOT, testified that his job duties as a field technician (field tech) between 2003 and 2011 entailed responding to complaints. As a field tech, he would travel though his assigned zone and check for maintenance issues, road problems, hazards, etc. Mr. Gard was assigned to two counties: Randolph and Washington. He was the only field tech assigned to those counties. On March 20, 2017, Mr. Gard gave testimony regarding his job duties in a deposition. In his deposition, Mr. Gard was asked whether IDOT performed any monitoringtype activity in order to look for problems. He responded, “No, we don’t look for problems. Usually the problems happen, and then we react to it.” Prior to 2012, IDOT did not employ a monitoring system to discover problems. IDOT was dependent on outside complaints. IDOT [*159] fielded complaints, processed them, and then relayed them to field techs. After Ms. Young’s accident, Mr. Gard was notified that water was pooling in that area in question. He went to the scene and took photographs.

He took photographs of the drainage system that existed on the southbound lane of Route 3 at the time of the accident. The system was classified as a closed drainage system. He described it as the best system available to remove water from the road at that time; it could not be improved.

Counsel for Claimant introduced as exhibits photos of improvements at the scene into evidence for the purpose of impeaching Mr. Gard’s statement that the drainage system could not be improved. Mr. Gard acknowledged that he was directed by IDOT’s chief of operations to make alterations to the drainage system.

On re-direct, Mr. Gard testified that prior to 2011 he never received complaints about water ponding on the area in question.

Ms. Elizabeth Young

Ms. Elizabeth Young testified that her sister Rebecca was the youngest of the Young’s four children. Elizabeth described Rebecca as a very kind, sweet girl who always tried to make people laugh. Rebecca was passionate about science and animals. Elizabeth learned about Rebecca’s accident because Elizabeth’s boyfriend at the time worked for the fire department. He was informed of an accident that occurred on Route 3. Elizabeth drove to where she thought the accident occurred and saw her sister’s car and emergency personnel removing Rebecca from the car.

Since her sister’s death, holidays and birthdays are not the same. Rebecca’s death has impacted her family greatly. Rebecca died on December 13. Elizabeth’s birthday is December 14. Christmas is not the same for the family. Elizabeth has noticed her sister’s death has taken a toll on her parents. Her dad is always going to her sister’s grave. He mows it himself. Rachel, her other sister, and Rebecca were really close partly because they were only 18 months apart.

Mrs. Leslie Young

Mrs. Leslie Young testified that Rebecca was her youngest daughter. Mrs. Young described her daughter as smart and funny, and she loved sports especially dancing. Mrs. Young was very close to Rebecca, partly because she was her youngest child. Rebecca would stop by the Young’s family business and spend time with her parents. They would cook dinner together.

Mrs. Young learned of Rebecca’s accident from her daughter Elizabeth. Rebecca was first taken to Chester Hospital then transferred to a St. Louis hospital. Mrs. Young went to St. Louis to see Rebecca. The hospital staff informed her that Rebecca died while being transferred from Chester to St. Louis. Since Rebecca’s death, she feels like her whole family has fallen apart. She said life will never be the same for her and her family. Rebecca was extremely close with all of her siblings. Rebecca was also really close with her father. She testified that Mr.

[*160] Young has had an extremely difficult time coping since Rebecca died. Their income at their family owned appliance store is down because Mr. and Mrs. Young lack the desire and will to work. A year after Rebecca’s death, the Youngs started a scholarship fund in her name.

Mr. Michael Young

Mr. Michael Young testified that Rebecca was his youngest daughter. Mr. Young described his daughter as smart, beautiful, and funny. He really enjoyed hanging out with Rebecca. They spent most nights together. He described Rebecca as outgoing and himself as shy and quieter. They loved to joke around and have fun together. Rebecca was close with her older siblings - she was extremely close with her sister Rachel and her mom.

Mr. Young observed Rebecca at Chester Hospital. He described her as being “basically lifeless.” Since Rebecca’s death, life has been extremely difficult for him. He visits his daughter’s grave two to three times a day and personally mows Rebecca’s grave. He misses her deeply and has noticed Rebecca’s death has been hard on his wife. He said life is not the same and has lost all sense of joy. He testified that her medical and funeral expenses total around $40,000.

TESTIMONY ON BEHALF OF RESPONDENT

Mr. Joseph Monroe

Mr. Joseph Monroe, an operations engineer for IDOT, testified that he is responsible for the efficient, safe operation of the highway system in 11 counties. He is familiar with the area of Route 3 in question. Prior to working as an operations engineer, he worked as a field tech for IDOT. His duties and responsibilities included ensuring the safe, efficient operation for a portion of District 8 which includes Randolph County. While working as a field tech, he never received complaints from the public about ponding issues or water pooling on the area in question. After Ms. Young’s accident on December 13, 2011, he received at least two phone calls from the public about standing water on Route 3. Prior to 2011, IDOT had not made any substantive changes to the area in question.

Mr. Monroe testified that IDOT has systems in place to monitor the condition of its roadways. He said a Condition Rating Survey (CRS) is a system used to evaluate the condition of pavement. A van equipped with a series of cameras transits the roadways looking for rutting or other imperfections in the pavement. CRS monitoring may discover ponding issues in a roadway if the water is standing at the time the van passes the depression. In addition to CRS, IDOT has a dedicated Bureau of Safety. The Safety Bureau collects crash data and monitors it for trends. The Bureau generates crash data from all the roads in the state. Once a problem area is recognized, the District’s Safety Bureau is notified. District 8 has one person responsible for monitoring road safety conditions for 11 counties. After Ms. Young’s accident, Mr. Monroe received an email from IDOT’s statewide safety engineer. Mr. Monroe then instructed Mr. Gard to go to the crash scene and collect information about the road condition. He testified that IDOT was not aware of the ponding issue on the area in question until after Ms. Young’s accident.

[*161] On cross-examination, Mr. Monroe testified that he expected Mr. Gard to use his stateissued car to inspect the roadways in his section which included Randolph County. On redirect examination, Mr. Monroe testified that he believed Mr. Gard performed his job duties as expected.

ARGUMENT

Claimant argues Respondent carelessly and negligently caused and committed this area of the roadway premises to become and remain in a dangerous condition for persons using that area of the road. Claimant alleges Respondent knew or in the exercise of ordinary or reasonable care should have known of the dangerous condition. Claimant argues Respondent committed one or more of the following acts or omissions of negligence: Respondent failed to inspect the roadway; Respondent failed to properly maintain the roadway; or Respondent failed to properly warn people lawfully upon said roadway of potential hazards. Claimant argues Respondent breached its duty which proximately contributed to cause the injuries and damages complained of in Claimant’s Complaint.

Claimant also argues Respondent had both actual and constructive notice of the dangerous condition. There was circumstantial evidence of actual notice. On the morning of December 13, 2011, Mr. Poston testified that he had a traffic accident at the area in question that resulted in the damage of a sign owned and controlled by IDOT. Prior to Ms. Young’s accident, IDOT repaired the damaged sign. There was a strong and reasonable inference that Respondent had an interest in finding out why its sign was damaged in a motor vehicle accident. Respondent also had constructive notice as Mr. Peters, a retired law enforcement officer, testified that the area in question had been prone to standing water for 40 years. Mr. Frazer testified that he had driven the area in question daily for almost 40 years and witnessed standing water after it rained. Therefore, Claimant asserts that Respondent knew or in the exercise of ordinary or reasonable care should have known of the dangerous condition.

Respondent argues the pooled water at issue was an open and obvious condition for which Respondent owed no duty toward Claimant. Additionally, Respondent argues that Ms. Young’s own lack of care in approaching the area and her actions therefrom were the proximate cause of the incident. Prior to the date of the accident, Mr. Poston was aware that he could encounter pooled water on this area. Officer Kempfer and Mr. Frazer testified that water pooling in the area was well known. MSgt. Ventura testified that, based on his investigation, Ms. Young did not respond properly to the hydroplaning event. Officer Kempfer testified that he took precautions, including slowing down, when he traveled through the area because it was susceptible to standing water.

Respondent argues Claimant failed to establish that Respondent had actual or constructive notice of the dangerous condition. Regarding actual notice, there was no testimony that Mr. Poston notified IDOT about his accident. Officer Kempfer testified that he only contacted dispatch to notify IDOT of the downed sign. Officer Kempfer further testified that when he observed IDOT employees fixing the sign, he could not remember seeing any pooled water at the location in question. Respondent also argues Claimant failed to demonstrate that the pooled water existed for such a period of time as to give constructive notice to Respondent. Mr.

[*162] Monroe and Mr. Gard testified that IDOT was not aware of a problem in the area until after Ms. Young’s accident.

Even if Respondent breached its duty and that breach caused Ms. Young’s accident, Respondent argues that Claimant is not entitled to recovery under the Survival Act because Claimant did not present any evidence to support such recovery. Additionally, any recovery pursuant to the Wrongful Death Act should be limited to Ms. Young’s parents because Claimant did not present any evidence establishing a sufficient loss of pecuniary damages as a result of Ms. Young’s death as related to her siblings. Finally, Claimant is not entitled to recover any damages related to the medical bills and funeral expenses because there was no separate claim for them in the Complaint.

LEGAL ANALYSIS

Claimant has made a claim for negligence. In order to prevail, Claimant must establish a duty owed to Claimant by Respondent, a breach of that duty by Respondent, and damages resulting proximately from that breach. Chandler v. Illinois Central Railroad Co., 207 Ill. 2d 331, 340 (2003). The State is not an insurer of the safety of motorists or passengers that travel upon its highways. Sutter and Fleming v. State, 48 Ill. Ct. Cl. 84, 89 (1996). The State owes a duty of reasonable care in maintaining roadways. Gushes v. State, 53 Ill. Ct. Cl. 54 (2000). The duty of ordinary care extends to the warning of potential dangerous conditions on the roadways where the State has notice. Sutter and Fleming, 48 Ill. Ct. Cl. at 89. To prevail in this claim, claimant must prove, by a preponderance of the evidence, that a dangerous condition or defect existed and that the State had actual or construct notice of it. Id. The mere existence of a dangerous condition is not, by itself, negligence. Sowizrol v. State, 51 Ill. Ct. Cl. 91, 97 (1996) (citing Feldman v. State, 36 Ill. Ct. Cl. 158, 160 (1984)).

Claimant must show the State had actual or constructive knowledge of the defect. Hanawell v. State, 47 Ill. Ct. Cl. 270 (1995). To demonstrate constructive notice, Claimant must show by a preponderance of the evidence that a defect was of such a nature that the State should have known of its existence in the exercise of due diligence, and that it was substantial enough that reasonable persons would conclude immediate repairs should be made. Id. at 275.

Claimant alleges that Route 3 near Shawneetown Trail was in a defective condition; specifically that it was prone to standing water that posed a danger to the traveling public. Claimant alleges that Respondent was negligent by failing to inspect the roadway, failing to properly maintain the roadway, or failing to properly warn motorists of hazards in the roadway.

We find Claimant prevails on the theory of liability that Respondent failed to inspect, repair, or maintain the roadway. Claimant presented sufficient evidence to prove that standing water on the roadway was caused by the failure to inspect and maintain proper drainage. Mr. Poston testified that he encountered standing water on the roadway then lost control and Officer Kempfer testified that he observed standing water on the roadway after responding to Mr. Poston’s accident which occurred merely hours before this accident. Significantly, Officer Kempfer testified that he observed standing water on the roadway after arriving on the scene of [*163] Ms. Young’s accident. We also find credible, Mr. Frazer’s testimony that he had driven the area in question daily for 40 years and it was prone to standing water.

Additionally, we find Respondent had actual or constructive knowledge of the standing water on the roadway and failed to warn the public. This Court has held that when Respondent has actual or constructive notice of recurrent standing water on a roadway that Respondent has a duty to warn the motorist public. Scott v. State, 43 Ill. Ct. Cl. 85 (1990).

Claimant has met his burden of proof that Respondent had actual notice of the dangerous condition of standing water on the area at issue. Officer Kempfer testified that after Mr. Poston’s accident earlier in the day he observed standing water on the roadway and a damaged sign owned/controlled by IDOT. Before Ms. Young’s accident, Officer Kempfer testified that he drove by this area and witnessed IDOT employees repairing the damaged sign which is clear evidence Respondent was notified about the damaged sign. It is reasonable to believe Respondent had actual notice of the standing water, or with any degree of due diligence would have gained actual knowledge of standing water in this specific area.

Moreover, two of Claimant’s witnesses provided testimony as to the recurrence of standing water on Route 3 in this area. Mr. Peters, a retired law enforcement officer, testified that this particular area has been prone to standing water for many years. He estimated that he had driven that stretch of road 10,000 to 20,000 times and described this area after it rained as “a very dangerous spot.” Mr. Frazer testified that he had driven this area daily for almost 40 years and standing water accumulated at that location after it rained. The evidence at trial was that the accumulation of water on the area at issue was a recurrent problem prior to Ms. Young’s accident. It is reasonable to believe Respondent knew or in the exercise of ordinary or reasonable care should have known of the dangerous condition of pooling water in this particular area. IDOT at least could have placed a sign to warn motorists of the possibility of water on the roadway prior to Ms. Young’s accident. Traveling at highway speeds, motorists (including Ms. Young) did not have proper warning of the dangerous condition nor adequate time to respond once the pooling water became known. In support, Mr. Poston testified that he encountered standing water in this area prior to Ms. Young’s accident; he did not have time to react to the standing water, and then lost control of his vehicle.

MSgt. Ventura testified that Ms. Young’s vehicle experienced a hydroplaning event based on the airbag module data. MSgt. Ventura concluded that Ms. Young’s vehicle encountered standing water on the roadway, hydroplaned, and then left the roadway. The evidence leads us to conclude that the accident was proximately caused by the standing water on the roadway.

Respondent’s theory that the pooled water at issue was an open and obvious condition for which Respondent owed no duty toward Claimant fails. The Illinois Supreme Court in Ward v. K Mart Corp., 136 Ill. 2d 132 (1990), adopted Restatement (Second) of Torts § 343(1) as the law in Illinois:

A possessor of land is not liable to his invitees for physical harm caused to them

by any activity or condition on the land whose danger is known or obvious to [*164]

them, unless the possessor should anticipate the harm despite such knowledge or

obviousness. (Emphasis added by Ward court). 136 Ill. 2d at 148.

The open and obvious doctrine has been successfully asserted in a number of Illinois civil cases for premises liability.3 However, this Court has considered evidence of an obvious defective condition on a state-owned roadway as constructive notice. In Gushes v. State, 53 Ill. Ct. Cl. 54 (2000), the Court noted the “two general methods of proving constructive notice of a defect are the length and time the defect had existed and/or the defect being so obvious that notice can be imputed by the nature of the defect. Id. at 56. In Scott v. State, 43 Ill. Ct. Cl. 85 (1990), this Court found that Respondent had constructive notice of the dangerous condition (standing water on Route 98) “since from all the surrounding circumstances the Respondent should have been aware of the existence of the condition in the exercise of due diligence.” Id. at 104. Here, like in Scott, evidence established at trial by Mr. Peters and Mr. Frazer that the roadway at issue had an obvious defective condition (standing water on Route 3) that persisted for over 40 years satisfies the two methods of proving constructive notice as articulated in Gushes - obviousness and length of time. The two cases cited by Respondent in support of its open and obvious theory are distinguishable because those cases did not involve a vehicle traveling at highway speeds on state-owned roadways. Clearly, in the present case, the obvious defective nature of the pooled water at issue supports, rather than defeats, Respondent’s duty to Claimant because it evidences constructive notice.

Section 2-1116 of the Illinois Code of Civil Procedure bars claimants from recovery if the contributory fault on the part of the claimant is more than 50% of the proximate cause of the damage. 735 ILCS 5/2-1116. If the claimant's negligence is less than 50%, recovery is reduced by the proportionate amount of fault. Id. “A plaintiff is contributorily negligent when he acts without the degree of care that a reasonably prudent person would have used for his own safety under like circumstances, and which action is the proximate cause of his injury.” Zook v. Norfolk & Western Railway Company, 268 Ill. App. 3d 157, 170 (4th Dist. 1994).

Respondent asserts that Ms. Young’s own lack of care in navigating through the standing water was the proximate cause of her death. MSgt. Ventura testified that Ms. Young’s minimal driving experience may have led to her improper response to driving through standing water on the roadway. Data from Ms. Young’s airbag module indicates that her car accelerated during the hydroplaning event which would be an improper response but there was nothing to show that Ms. Young intentionally pressed down on the gas pedal or whether the airbag over reported the speed during the hydroplaning event. Based on the evidence before this Court, Ms. Young’s fault is assessed at 20%.

The final inquiry is damages. Under Count I, Claimant seeks damages pursuant to the Illinois Survival Act - 755 ILCS 5/27-6. A survival action allows for recovery of damages for

Amaral v. Woodfield Ford Sales, Inc., 220 Ill. App. 3d 357 (1st Dist. 1991) (slip and fall in auto service area where radiator fluid was flushed); Helms v. Chicago Park District, 258 Ill. App. 3d 675 (1st Dist. 1994) (fall from a “ring station” on a fitness course); Richardson v. Vaughn, 251 Ill. App. 3d 403 (2nd Dist. 1993) (falling after hurdling a cable); Moore v. Kickapoo Fire Protection District, 210 Ill. App. 3d 736 (4th Dist. 1991) (trip and fall over a stack of folding chairs); Dinkins v. Ebbersten, 234 Ill. App. 3d 978 (4th Dist. 1992) (electrocution from power lines); Ruppel v. Hyeon Jin, Inc., 272 Ill. App. 3d 527 (1st Dist. 1995) (falling down a flight of stairs while intoxicated); Stephen v. Swiatkowski, 263 Ill. App. 3d 694 (1st Dist. 1994) (stepping on a board with a protruding nail).

[*165] injury sustained by the decedent up to the time of death. Wyness v. Armstrong World Industries, Inc., 131 Ill. 2d 403 (1989). Unlike damages for wrongful death, which address the injury suffered by the deceased’s next of kin due to the loss of the deceased, “a survival action allows for the recovery of damages for injuries personally sustained by the deceased up to the time of death.” Id. at 410. The purpose of the Illinois Survival Act is to compensate the estate of the decedent for injuries the decedent suffered prior to death. Caterpillar, Inc. v. Wilhelm, 824 F. Supp. 2d 828 (C.D. Ill. 2009). To recover damages, a plaintiff must prove the decedent actually and consciously suffered pain before death and when death is instantaneous or the decedent was rendered unconscious immediately, an action for pain and suffering cannot be sustained. See Ellig v. Delnor Community Hospital, 237 Ill. App. 3d 396, 401 (2nd Dist. 1992). Not only is consciousness a requisite element of a complaint seeking recovery for pain and suffering, the evidence must do more than provide mere speculation that the decedent was conscious and suffered pain. See Bart v. Union Oil Co. of California, 185 Ill. App. 3d 64, 68 (3rd Dist. 1989). Medical testimony is not required to establish consciousness and lay testimony describing the decedent’s actions prior to death can form the basis for a pain and suffering claim. Moore v. Swoboda, 213 Ill. App. 3d 217 (4th Dist. 1991).

Here, Mr. Frazer testified that when he rushed to assist Ms. Young, he though he heard her “gurgling” so he tried to hold her head up straight to help her breathe. He testified that he initially thought she was breathing a little but now believes that was not correct. He further testified that he believed she was unconscious. Elizabeth Young (decedent’s sister) testified that Rebecca’s body was limp when she saw emergency personnel removing her from the vehicle. Mr. Young testified that Rebecca was “basically lifeless” when he saw her at Chester Hospital. But this testimony only speaks to the questions of Rebecca’s consciousness after she collided with the truck driven by Mr. Frazer. There can be no doubt that Rebecca experienced great trauma and terror in the moments after she lost control of her vehicle and before and at the moment she collided with Mr. Frazer’s truck. Because of this we find that Ms. Young’s estate is entitled to recovery under the Survival Act.

Under Count II, Claimant seeks damages under the Illinois Wrongful Death Act - 740 ILCS 180/1. “The Wrongful Death Act permits a recovery for the death of an individual by wrongful act, neglect, or default, where none existed at common law…[T]he Act is viewed, traditionally, as creating the cause of action, which must be brought in the name of the representative, for the pecuniary losses which a surviving spouse and next of kin may have sustained by reason of the death of the injured person.” Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 360 (1995). When a person dies without a spouse or children, a decedent’s parents and siblings are the next of kin and thus are entitled to recover under the Wrongful Death Act. Prendergast v. Cox, 128 Ill. App. 3d 84 (1st Dist. 1984). Pecuniary losses include the amounts attributable to loss of society, which are damages sustained for the loss of the decedent’s companionship, guidance, advice, love and affection. Id. In 2007, the Illinois Legislature amended the Wrongful Death Act to allow recovery of next of kin for grief, sorrow and mental suffering arising from the wrongful death of the deceased family member. 740 ILCS 180/2. See also Dorsey v. State, 63 Ill. Ct. Cl. 177 (2011). The evidence is compelling that Rebecca’s parents and siblings experienced significant grief, sorrow and mental anguish as a result of the death of Rebecca. Her next of kin (parents and siblings) qualify to recover under the Act.

[*166] Elizabeth Young (decedent’s sister) testified that she still wants to call and text Rebecca to tell her about things. She further testified that Rebecca was very close to her other sister, Rachel, and babysat for her brother Jacob’s daughter, Natalie. Mrs. Leslie Young, Rebecca’s mother, testified that she was very close to Rebecca and that they did everything together. She further testified that Rebecca was really close to all her siblings. Mike Young, Rebecca’s devoted father, testified that he loved to joke and laugh with Rebecca. He misses being able to kiss her goodnight and visits her grave two to three times a day. The loss of decedent’s love, affection, and companionship as daughter and sister to her family could not be more evident.

Therefore, even taking into account the contributory negligence of Rebecca we find that her estate and each of her next of kin are entitled to recovery up to the statutory limit. See Miller v. Kramarczyk, 306 Ill. App. 3d 731 (2nd Dist. 1999). The Court of Claims Act provides a limitation of liability in non-state owned auto cases of $100,000 for the benefit of any claimant. 705 ILCS 505/8.

In the instant claim we find that the per claimant limitation applies to each of the next of kin of Rebecca Young to wit:

• Michael Young, father of Rebecca

• Leslie Young, mother of Rebecca

• Elizabeth Young, sister

• Rachel Young, sister

• Jacob Young, brother

CONCLUSION

Count I damages under the Survival Act are awarded in the amount of $100,000.

Count II damages are awarded as follows:

• Michael Young $100,000

• Leslie Young $100,000

• Rachel Young $100,000

• Elizabeth Young $100,000

• Jacob Young $100,000

Judgment is hereby entered in the total amount of $600,000 and shall be paid to Mike Young, Administrator of the Estate of Rebecca R. Young, to be distributed in accord with this Opinion.

ORDER

This cause comes before the Court on Respondent’s Motion to Reconsider the Court’s awarding damages under the Survival Act as well as the award of damages to the next of kin under the Wrongful Death Act. The Court finds:

[*167] 1. That this Court issued an opinion on February 8, 2018 awarding $100,000 under the

Survivor Act and $500,000 under the Wrongful Death Act on February 6, 2018.

2. That Respondent filed a Motion to Reconsider the Court’s Opinion on March 6, 2018.

3. Petitions for Rehearing are left to the sound discretion of the Court. Wells v. State, 38

Ill. Ct. Cl. 142, 148 (1986).

4. Generally, petitions for rehearing include reconsideration by the trial court for

misapprehension of the law or newly discovered evidence. Id. Discussion follows:

SURVIVAL ACTION

Respondent would have this Court take the narrow position that in order to recover under the Survival Act, Claimant must prove that Rebecca was conscious after the collision with the truck driven by Mr. Frazer. But this posture ignores the factual circumstances in the instant case. Rebecca lost control of her vehicle after her impact with a dangerous accumulation of water on the highway, a defect caused by Respondent’s negligence. We know from the Black Box testimony that Rebecca made a series of maneuvers following her loss of control and those maneuvers evidenced her panic in the moments leading up to her head on collision with the truck being driven by Mr. Frazer. The Court could find that her encounter with the standing water, a condition caused by Respondent’s negligence, constitutes a “physical impact” allowing a survival action. But even assuming, arguendo, that that there was no impact her estate could recover under the standard set forth in In Re Air Crash Disaster Near Chicago 507 F. Supp. 21 (N.D. Ill. 1980). The Court therein held emotional distress for panic and terror even of short duration, may be compensable.

WRONGFUL DEATH ACT

Next of kin including siblings and parents may recover for loss of society, including grief, sorrow and mental suffering. 740 ILCS 180/1.

Under the Wrongful Death Act the next of kin are the true parties and a wrongful death action is for the exclusive benefit of their interests. The personal representative is only a nominal party. Estate of Powell v. Wunsch, 2013 IL App (1st) 115997. In a wrongful death action, the presiding judge decides the distribution of the award to the next of kin. The Court is of the opinion that the limitation of liability under 705 ILCS 505/8(D) of the Court of Claims Act applies to each of the next of kin who are bonafide Claimants.

IT IS THEREFORE ORDERED THAT:

Respondent’s Motion to Reconsider the Court’s Order is denied and the Order entered on February 6, 2018 remains in full force and effect.