Daniel Hilmes v. State of Illinois

OPINION

BIRNBAUM, CJ.

On July 30, 2014, Claimant, Daniel Hilmes, filed his complaint for personal injuries arising from a motor vehicle accident that occurred on August 5, 2012. In his complaint, Claimant alleges that State Trooper Jay Wittenborn negligently struck the rear of his vehicle while traveling on northbound state route 127 in Washington County, Illinois. Claimant seeks damages for personal injuries. A hearing was held before Commissioner Ysursa with Samantha Unsell of Keefe, Keefe, & Unsell representing Claimant, and Assistant Attorney Generals Taylor Traynoff and Joseph Bracey appearing for Respondent.

I. Preliminary Matter

Claimant, Daniel Hilmes, State Trooper Jay Wittenborn, and Claimant’s Wife, Carol Hilmes, testified remotely at the hearing. The parties stipulated to the submission of deposition testimony of Nicholas Poulos, M.D., a treating physician of Claimant, Claimant’s retained rehabilitation/vocational counseling expert, David S. Gibson, and accident reconstructionist expert, Robert Ventura. In addition, the following exhibits were admitted into evidence without objection, Claimant’s Exhibits 1-29, and Respondent’s Exhibits A through D. It is based upon this record that the court issues its opinion.

II. Background

The first Witness was Jay Wittenborn. Wittenborn testified via videoconference from Murphysboro, Illinois. Wittenborn stated that he was retired but previously he worked as an Illinois State Police Trooper. On August 5, 2012, Wittenborn was driving northbound on Illinois Route 127 in an unmarked Ford Crown Victoria State Police Owned Vehicle; he was on duty and was following the Claimant’s vehicle. Wittenborn testified that just prior to the accident he was checking his review mirror, as he periodically does while driving, and when his eyes returned back to the roadway in front of him, he saw claimant’s vehicle abruptly braking. Wittenborn applied his breaks; Claimant’s vehicle veered to the left; and despite his efforts Wittenborn’s vehicle struck the rear of Claimant’s vehicle. At this point Wittenborn did not know why the Claimant was braking, but as he proceeded forward, he discovered that a white Windstar minivan, [*163] driven by Shirley Prommer, was traveling southbound but she was driving on the wrong side of the road. Wittenborn’s vehicle collided with Pommer’s minivan and settled in the ditch to the right of the northbound lane.

On cross-examination, Wittenborn agreed that he had a duty to follow vehicles at a reasonable distance to allow him to be able to safely stop without striking the vehicle in front of him. He also testified that he could not recall how far behind Claimant he was at the time of the accident but conceded that he was close enough to strike Claimant’s vehicle. Following the accident Wittenborn and Claimant were taken via ambulance to Washington County Hospital. Wittenborn was interviewed by law enforcement following the accident.

The next witness was Claimant, Daniel Hilmes. He is married with three children and three grandkids. On the date of the accident, the then 56-year-old Claimant was returning from his cabin in in Lake Egypt and traveling northbound on Illinois Route 127. While driving he noticed a white minivan driving southbound in his lane of traffic.

As the white minivan got closer, he began to apply his brakes. He testified that he had taken defensive driving classes and knew how to brake without locking his wheels. As he slowed, he began to turn his wheel to the left in order to go around the white minivan.

Just as he turned his wheel to veer to the left, he was walloped in the rear. His vehicle spun around and ended up off the road to the left of the southbound lane of traffic. He testified that he immediately felt pain in his back.

Claimant testified that Wittenborn had been following him for several miles prior to the accident. He stated that he observed Wittenborn on a few occasions through his review mirror. He stated that most of the time Wittenborn seemed to be following at a safe distance, but he did notice Wittenborn on his phone or computer. Immediately after the accident Claimant stated that he felt pain in his lower back, his neck, his right finger and in his chest. He was taken to Washington County Hospital in Nashville, Illinois via ambulance. At the hospital two Illinois State Police Troopers interviewed him about the accident.

In terms of medical treatment, after the emergency room visit the day of the accident Claimant was referred to a specialist for his neck and back pain. He underwent physical therapy but did not significantly improve. He was referred to Dr. Yazdi and underwent an MRI. He was told that his pain was being caused by nerves being pinched in his spinal column. He received epidural injections, which initially helped but progressively became less effective. At that point in time, Dr. Yazdi retired so he began seeing Dr. Nicholas Poulus. In April 2016, Dr. Polous performed surgery on Claimants’ back. Unfortunately, he had complications from surgery that caused him to have two more surgeries and be placed in the ICU for weeks. He testified that he had no recollection from April 21, 2016, through May 23, 2016. After the surgery and complicated recovery, Claimant underwent rehab and physical therapy. Claimant returned home on June 15, 2016. Claimant stated he has a permanent lifting limitation of not more than 10 pounds.

Claimant conceded that prior to the accident he experienced back pain, but asserted that he had no previous issues with his neck. In early 2012, he was diagnosed with stenosis in his spinal column. Claimant testified that prior to the accident he was [*164] able to manage the back pain, and perform his job duties, which included carrying heavy ammunition and fishing items in order to stock the shelves at his customer’s stores.

After the accident he was limited to what he could do because of his back and neck pain, and the corresponding lifting limitations. He testified that prior to the accident he did yardwork and landscaping, but could no longer post-accident. He stated that his injuries adversely affected his sex life.

Before the accident Claimant worked for Big Rock Sports out of North Carolina as a traveling salesperson. He sold ammunition and fishing items. He drove for his job covering the territory of eastern Missouri and Illinois south of Interstate 80. He testifies that as part of his job he would routinely lift heavy ammunition and fishing items in order to stock the shelves in his customers store. He said that after the accident he could not do so because of his 10-pound lifting restriction as a result of his injuries. Claimant also stated that he was a volunteer firefighter for the city of Breese, but had to retire because of the pain from the accident. He was laid off from his job in November 2014. He conceded that it was due to the company cutting back. Rather, he testified that he tried to find other employment, but his back issues limited his employment opportunities. He applied for and received social security disability and has not worked since the time of the surgery.

Claimant testified to the effect his injuries had on his family. He stated that it caused undue stress and increased the duties of his wife. He cannot hunt like he used to and cannot fish because the impact of the waves causes too much pain. Prior to the accident he would bass fish in Southern Illinois and even entered some tournaments with his son. Since the accident he has only been hunting probably six times. Mentally his inability to work and be the husband he wants to be has caused him depression. He feels useless at times. Claimant testified that he and his wife moved to Tennessee to get a fresh start. His injuries have limited his ability to travel because he cannot sit in a car or on a plane for very long.

On cross examination, Claimant testified that the accident happened very quickly in about six seconds. He testified that he did not use his turn signal when veering to the left and did not activate his hazards. Claimant conceded that he did not observe Wittenborn on his phone or laptop at the time of the accident. He testified that he veered left in fear that the minivan would go onto the right shoulder. He stated that he observed the minivan for about a minute prior to the accident. Claimant testified that when he was laid off from his job his employer was undergoing downsizing. Claimant testified that he was diagnosed with spinal stenosis in the spring of 2012. He returned to work about 4 days post-accident, but his sales declined because customers did not like to purchase over the phone, and he could not travel to them as he did prior to the accident. Also, his boss was increasingly opposed to traveling salesmen. His job was 100% commission.

Claimant testified that he did settle his claim against Shirley Prommer, the driver of the minivan, for $100,000.00.

The next witness was Carol Hilmes, the wife of the Claimant. Prior to the accident, Claimant was a “go-getter” working up to 60 hours per week. He would fish with his son, and always did yard work. She stated everything went downhill after the accident and surgeries. Following his initial surgery in 2016, Claimant had spinal fluid leaking causing major complications. During this time the Claimant was confused, had to be [*165] sedated; was ventilated three times, and got pneumonia. Claimant’s wife testified that the accident has caused numerous problems in their marriage as she feels burdened with additional work and responsibilities, and due to the fact that Claimant is depressed because he cannot be the husband and father that he wants to be.

Claimant’s Exhibit 28 was the deposition of accident reconstructionist Robert Ventura. Robert Ventura was the Illinois State Police Accident Reconstructionist called to the scene of the accident on August 5, 2012. Ventura began working as a crash reconstructionist in the fall of 2002 and has been certified as an accident reconstructionist by the Law Enforcement Training Board. While obtaining his accident reconstructionist certification, Ventura also worked as an Illinois State Police Trooper. In 2014, Ventura began working full time as a reconstructionist and became the head of the Illinois State Police accident reconstructionist department.

Ventura testified that at the accident scene he photographed the vehicles, took measurements, including denoting the location of the vehicles and any skid marks, and either interviews or reviews statement of witnesses. Ventura downloaded available data from the vehicle computers involved in the accident. However, the only usable data was from the Claimant’s vehicle. Ventura testified that Claimant’s vehicle data demonstrated that Claimant applied the brakes at a deceleration speed of 15 miles per hour per second.

Ventura described this rate of braking as “max” braking, but not enough to cause the vehicles wheels to lock up. This is why he did not observe any skid marks caused by Claimant’s vehicle. Ventura testified that the vehicle being driven by Wittenborn did leave skid marks of 113 feet. Ventura was asked if he then calculated the rate of speed of Wittenborn’s vehicle, and he stated that he did not. As stated previously, Ventura was not able to get any data from either Wittenborn’s or Prommer’s vehicles.

Ventura identified his Level A Traffic Crash Reconstruction Report, (Claimants Exhibit 16). Ventura opined that the primary cause of the accident was the improper lane usage of the minivan when she crossed the centerline while traveling southbound Illinois Route 127. However, Ventura conceded that there could be more than one factor that contributed to the accident. Ventura testified: 1. Q. Do you believe that Mr. Wittenborn bears some responsibility for striking

Hilmes Vehicle?

2. A. I would say yes, based on the braking and such, he does bear some responsibility for striking his vehicle, the alternative is there’s going to be a collision between Mr. Hilmes and the Ford Windstar van.

Ventura did not present any reconstruction analysis for his statement that Claimant would have struck Prommer but for Wittenborn striking Claimant’s vehicle.

Claimant’s Exhibit 26 was the deposition of Nicholas Poulos, M.D. Dr. Polous is a board-certified neurosurgeon who began treating Claimant in 2014. Claimant began treatment with Dr. Poulos’ partner, Dr. Yazdi, and moved to Dr. Poulos when Dr. Yazdi retired. Dr. Poulos was presented with medical records from his medical office and [*166] testified as to the medical care received by Claimant following the accident. Dr. Poulos testified that Claimant was first seen by their office following the accident on October 30, 2014. Dr. Poulos stated that Claimant had a history of back pain prior to the accident caused by conditions known as stenosis, or narrowing of the spinal opening, and spondylolisthesis, or where the vertebrae are not properly aligned. Dr. Poulos testified that both conditions are degenerative. Dr. Poulos testified that epidural blocks did not alleviate all of Claimant’s pain, so surgery was recommended.

The surgery was performed by Dr. Poulos on April 21, 2015. He fused the vertebrae at the L4-5 level and performed a laminectomy at the L3, L4 and L5 levels. Dr.

Poulos testified that unfortunately during surgery Claimant got a durotomy, which is a leak of the fluid in the nerve sacs. This resulted in Claimant receiving two more surgeries. As a result, Claimant was hospitalized for an extended period and Claimant does not recall the time period. When asked, Dr. Poulos testified that the cause of Claimant’s pain was the degenerative conditions. However, based upon his review of the records he felt that the Claimant’s degenerative conditions were asymptomatic prior to the accident and became symptomatic post-accident. The result was the nerves never properly healed necessitating surgery. Dr. Poulos testified that he believed within a reasonable degree of medical certainty that the motor vehicle accident on august 5, 2012, caused Claimant to become symptomatic requiring his medical treatment. He stated that the treatment of Claimant, including physician visits, testing, epidurals, physical therapy, and surgeries were all related to the motor vehicle accident and necessary to treat Claimant’s injuries. Dr. Poulos testified that the summary of medical charges for said services was fair and reasonable for like services in the area in which they were administered.

Claimant’s Exhibit 27 was the deposition of David S. Gibson who was retained by Claimant to serve as an expert and offered opinions as to limitations sustained by claimant due to his injuries and treatments, and the impact on his future earning capacity. Gibson holds a master’s degree in business administration with a concentration in finance from the University of Illinois-Urbana Champaign and a master’s degree in rehabilitation counseling from the University of Kentucky. Gibson estimated that he has testified as an expert over 1,200 times in 27 different states.

Gibson testified that in formulating his opinions that he will review the earnings of an individual prior to an incident that causes functional limitation and any permanency. He interview family and other individuals and makes final determination as to the individual’s work prospects and ability to earn money. He then calculates the lost earning capacity and reduces that figure to net present value. In this case, Gibson opined that Claimant’s loss in future earning capacity due to the August 5, 20212 accident was $870,469.

III. Analysis

This claim and the arguments asserted herein raise several issues that need to be addressed in assessing any award. First, this Court must determine liability. This analysis includes traditional negligence considerations as well as Respondent’s sole proximate cause defense. Second, assuming that Claimant meets his burden of proof on the issue of liability, then the Court must consider the damages. The damages analysis [*167] includes not only the assessment of damages, but also issues of setoff and joint and several liability. The Claimant bears the burden of proving liability and damages by a preponderance of the evidence. See Depke v. State of Illinois, 59 Ill. Ct. Cl. 337, 340 (2007); also see Dow v. State of Illinois, 65 Ill. Ct. Cl. 166, 171 (2013).

A. Question of Liability Claimants have made a claim of negligence. To prevail Claimant must establish a duty owed to Claimant by Respondent, a breach of that duty by Respondent, and damages resulting in proximately from that breach. See Chadler v. Illinois Central Railroad Co., 207 Ill. 2d 331, 340, 798 N.E.2d 724, 729 (2003). Just as with all motorists, drivers of State vehicles owe a duty to operate the vehicles in a safe and reasonable manner in compliance with all the rules of the road. See Acuity Insurance Company v.

State of Illinois, 59 Ill. Ct. Cl. 312, 314 (2007). This includes a duty to maintain a reasonably safe distance when following another vehicle so as to be able to stop safely without striking the vehicle in front. See Hickox v. Erwin. 101 Ill. App. 3d 585, 588, 428 N.E.2d 520, 522 (5th Dist. 1981), (“A driver who follows another vehicle has a duty to maintain sufficient distance behind the preceding vehicle in order to stop or slow his vehicle suddenly, if necessary.”). A driver must also maintain a safe lookout for traffic ahead. See Black v. Laggren, 313 Ill. App. 3d 39, 41, 728 N.E.2d 1208, 1211 (1st Dist. 2000).

In this case, Claimant argues that Wittenborn was negligent when he struck the rear of his vehicle due to following to closely and not keeping his eyes on the roadway in front of him. Respondent argues that Wittenborn did follow at a safe distance and maintained his eyes on the road other than to check his mirrors and that the sole proximate cause of the accident was the negligence of Prommer when she drove her minivan into oncoming traffic. Claimant counters that while Prommer’s actions certainly contributed to the accident, Wittenborn’s act of following to closely to Claimant was a contributing factor to the cause of the accident.

The first question is whether Wittenborn was negligent when he struck the rear of Claimant’s vehicle. There is no doubt, and all parties acknowledge, that drivers must follow at a reasonably safe distance to be able to stop without hitting the vehicle in front of them. Further, drivers must keep a proper lookout as to avoid accidents. There are certainly plausible scenarios where a driver strikes another vehicle and is not negligent.

However, the evidence in this case demonstrates that while the primary cause of the accident was Prommer, Wittenborn shares in some of the blame.

The evidence shows that when faced with Prommer’s vehicle on the wrong side of the road, Claimant braked abruptly. But owing to his training, Claimant did not brake so abruptly that his wheels locked and produced skid marks. Conversely, the evidence shows that Wittenborn did apply his brakes with sufficient force to result in skid marks of 113 feet. The purpose of following at a safe distance to be able to slow down without hitting the vehicle in front is because of situations like this case, namely situations where a vehicle in front of a driver stops suddenly. Even the testimony of the State’s accident reconstructionist, Robert Ventura, indicated that Wittenborn “bears at least some of the responsibility.” The Court finds that Wittenborn was at least partly negligent when he struck the rear of Claimant’s vehicle.

[*168] Respondent next argues that regardless of the conduct of Wittenborn the actions of Prommer driving on the wrong side of the road was the sole proximate cause of the accident. A defendant raising the sole proximate cause of defense seeks to defeat a claim of negligence by establishing that proximate cause rests solely in the act of another that is not a party to the suit. This defense is often referred to as the “empty chair” defense.

See McDonnell v McPartlin, 192 Ill. 2d 505, 516, 736 N.E2d 1074, 1082 (2000).

Claimant counters that Illinois Pattern Jury Instruction Civil 15.01 allows for more than one act to be the proximate cause of injury. IPI Civil 15.01 When I use the expression “proximate cause,” I mean a cause that, in the natural or ordinary course of events, produced the plaintiff’s injury. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.] [If you decide that a [the] defendant[s] was [were] negligent and that his [their] negligence was a proximate cause of injury to the plaintiff, it is not a defense that [something] [or] [someone] else may also have been a cause of the injury.

However, if you decide that the defendant’s conduct was not a proximate cause of the plaintiff’s injury, then your verdict should be for the defendant.] See Ill.

Pattern Jury Instr.-Civ. 15.01, Ill. Pattern Jury Instr.-Civ. 1501.

Claimant argues that Wittenborn’s actions of following Claimant’s vehicle so closely that he could not stop before striking Claimant’s vehicle combined with Prommer’s negligence caused the accident.

The issue of proximate cause and the defense of sole proximate cause are inextricably linked. The conclusion of this Court is that the accident was caused by a combination of Prommer driving on the wrong side of the road and Wittenborn following in a manner that did not allow him to stop without striking Claimant’s vehicle.

It is certain that the respective liability of Prommer and Wittenborn are not equal; however, that does not change the fact that but for the combination of the two’s actions the accident would not have occurred, at least in the manner in which it transpired.

Consider the question of whether the accident would have transpired absent either Prommer driving on the wrong side or Wittenborn following to closely. If Prommer was not in the wrong lane the Claimant would not have applied his brakes, and the accident would have not occurred. Similarly, if Wittenborn was not following was not following Claimant at the time of Prommer’s action, the accident would not have occurred because no car would have been following Claimant when he hit his brakes. But for the combination of the actions both Prommer and Wittenborn there would have been no accident in this case. Therefore, the sole proximate cause defense does not relieve Respondent of liability. The issue of who bears what percentage of fault will be addressed below in the damage analysis.

B. Issue of Damages Because Wittenborn has been determined to be at least partly liable the next consideration is damages. Before addressing damages, this Court must address three legal issues: (1) applicability of statutory cap; (2) manner of applying any setoff; and (3) applicability of joint and several liability.

[*169] The first issue concerns the applicability of the statutory maximum recovery for a tort claim under the Court of Claims Act. §505/8 of the Court of Claims Act provides; “The…limit prescribed by this section does not apply to an award of damages in any case sounding in tort arising out of the operation by a State employee of a vehicle owned, leased or controlled by the state.” See 705 ILCS 505/8. This Court has held that in order for the exception to the damages cap to apply the State employee must be in performance of some work function. See Hanon v. State of Illinois. 61 Ill. Ct. Cl. 214, 218 (2008), (“To remove the … damage limitation the vehicle must be in the active exercise of some function by performing work or producing effects at the time and place of the injury.”). The evidence in this case establishes that at the time of the accident Wittenborn was on duty while operating a state-owned vehicle. Thus, the statutory cap does not apply in this case.

The second issue the Court must consider is whether the settlement Claimant received from Prommer should serve as a setoff to the damages in this claim, and if so, the manner of applying the setoff. §505/26 of the Court of Claims act provides that “[t]he granting of an award under this act shall constitute full accord and satisfaction. There shall be but one satisfaction of any claim or cause of action and any recovery awarded by the court shall be subject to the right of set-off.” See 705 ILCS 505/26. This Court has held that when a claimant receives compensation from a joint tortfeasor for the same injuries then a full setoff applies. See Makkay v. University of Illinois, 61 Ill.Ct.Cl. 225 (2006) (… it is policy of this Court to allow setoff’s pursuant to Section 26 of the Court of Claims Act only when monies received are from the state or another tortfeasor.”) It is undisputed that Claimant received $100,000 from Prommer for his injuries. It is further undisputed that Prommer was a joint tortfeasor in this case. Thus, Respondent is entitled to a setoff of the $100,000 received from Prommer.

This case presents somewhat of a novel issue in terms of setoff because there is no §505/8 statutory cap available. This Court has traditionally applied setoffs against the statutory cap, and if the setoff exceeds the statutory cap, then no recovery is possible.

See Behrens v. State of Illinois, 41 Ill. Ct. Cl. 195, 197 (1988) (“The precedents guiding the Court in the present claim are uniform, consistent, and numerous in their statement of the rule that recovery of the statutory limit of $100,000 from another party to an accident completely sets off any claim that may be had against the State.”); Cullers v.

State of Illinois, 40 Ill. Ct. Cl. 211, 2212 (1987), (“this court has held on numerous occasions that recovery of the statutory limit of $100,000.00 or more from another party to an accident completely sets off any claim that may ne had against the state.”); also see Culver v. State of Illinois, 40 Ill. Ct. Cl. 261, 262 (1987)2. The issue at bar is different from those cases because the statutory cap does not apply in this case.

While not directly on point this court finds that the case of Peterson v. State. 37, Ill. Ct. Cl. 104,112 (1984) is instructive. In Peterson, a driver was in accident and died in a construction zone of a state roadway. While the State was found to be negligent the Court also found that the Claimant was negligent. Thus, the court was faced with how to [*170] apply a setoff in a case where there is not a joint tortfeasor, but there is a comparative negligence on the part of the claimant. 1 The Peterson Court Held: The Court considered similar issues in the past and has held consistently that any reductions or setoffs must apply to and be deducted from the statutory limit and not the total potential award where the total award exceeds the limit. Williams v.

State (1965), 25 Ill. Ct. Cl. 249. The reason for this is there can be but one satisfaction for any injury, and therefore other recoveries must be deducted from the amount the state would otherwise be actually required to pay.

In the case of comparative negligence, however, we are not dealing with a situation where Claimant has already received some other satisfaction. Rather, the damages are being reduced by virtue of Claimant’s negligence. Hence, the total amount of possible recovery against the State cannot even be determined until the deduction resulting from Claimant’s negligence is first determined. The court therefore finds that Williams is not applicable as to the issue of reduction and that and that the full potential award should first be determined before any reduction is made for Claimant’s negligence. See Peterson v. State, 37 Ill. Ct. Cl. 104, 110 (1984).

The Peterson Court calculated the total recovery to claimant as $500,000. The court assessed comparative fault upon the claimant at 60%. Thus, the remaining 40% of fault attributable to the State was $200,000. The Court then applied the setoff of $100,000 to this 40% share of damages resulting in a final award in favor of the claimant and against the State in the amount of $100,000. See Peterson v. State, 37 Ill. Ct. Cl. 104, 111-112 (1984).

The question in this case is how to apply a setoff when the statutory cap does not apply. This court holds that in situations such as this case the procedure most consistent with the statutory framework of the Court of Claims and Court of Claims precedents as in Peterson is to first calculate the total damages, allocate percentage fault between the tortfeasors, apply the percentage to the total damages to arrive at an award against the State, and then subtract the setoff, in this case the $100,000 settlement with Prommer.

The third issue is the State’s share of damages. As stated in the liability section of this Opinion, the conclusion of this Court is that the accident was caused by the combination of Prommer driving on the wrong side of the road and Wittenborn following in a manner that did not allow him to stop without striking Claimant’s vehicle.

It is certain that the liability of Prommer is much greater than that of Wittenborn. It is further clear that the primary cause of the accident was the actions of Prommer with Wittenborn bearing a much smaller percentage of liability. This Court finds that Prommer is 80% at fault and Wittenborn is 20% at fault.

Based upon that allocation of fault the Court must now consider whether the award of damages against the State is joint or several. §790.20 of the Court of Claims Rules provides”[e]xcept as otherwise provided by this part or by the Court of Claims Act [705 ILCS 5/Art. II] and the Rules of the Supreme Court of Illinois.” See 74 Ill.Admin.Code The above cited cases were decided before the §505/8 statutory cap was increased to 2 million dollars by the Illinois General Assembly.

[*171] §790.20. Thus, the Illinois Rules of Civil Procedure apply unless the Court of Claims Act or Court of Claims Rules supersede. Due to the uniqueness of the forum, there are some rules applicable in the circuit courts that do not apply in the Court of Claims. The issue of joint and several liability presents such a situation. §5/1-1117 of the Code of Civil Procedures provides the rules on the applicability of joint and several liability in the circuit courts. §5/2-1117 provides that “Any defendant whose fault, as determined by the trier of fact, is less than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, any third party defendant except the plaintiff’s employer, shall be severally liable for all other damages.”

See 735 ILCS 5/2-1117. However, in the circuit court a defendant is permitted to file third-party actions for contribution and thereby assert claims against other tortfeasors.

Further, if there is a settlement of a co-defendant in the circuit court a defendant could challenge the good faithfulness of the settlement under the Joint Tortfeasor Contribution Act. These procedures allow a defendant in the circuit court to pursue other tortfeasors in the hopes of reducing their fair share of the total damages.

The Court of Claims affords no such procedure for the state to pursue other tortfeasors with the goal of paying its fair share of the damages. The State has no right to file an action for contribution. It is true that a Claimant must exhaust all other remedies including pursuing other potential tortfeasors; however, the State cannot name other potential tortfeasors as third-party defendants, nor can the state challenge a claimant’s settlement in other forum. Moreover, in the instant case, Ms. Prommer was not, nor could she have been a party to these proceedings.

In order to reconcile the spirit of §5/2-1117’s joint and several liability in the Court of Claims forum, this Court holds that when assessing damages when there is more than one tortfeasor to an injury that the Court will consider the relative fault of all tortfeasors. Once determining each party’s relative fault, the court will then apply the spirit of §5/2-1117’s rules on joint and several liability. That means that if the State’s relative fault is less than 25% then the State is severally liable for non-economic damages; if relative liability is greater than 25% then the State is jointly liable for noneconomic damages. Pursuant to §5/2-1117 the State is always jointly liable for medical expenses. Applying the above procedure to this case results in the State being jointly liable for medical expenses and severally liable for the non-economic damages.

Claimant seeks medical special damages in the amount of $571,068.57, lost future earnings in the amount of $870,469, (assuming Claimant would have worked until age 65). Past pain and suffering, future pain and suffering; and loss of normal life.

Respondent argues that Claimant has not proven any of his damages.

A review of the exhibits and testimony of Dr. Poulos shows Claimant received significant medical treatment for his injuries sustained in the accident. This treatment included hospitalization, surgical intervention, and physical therapy. It is true that the second and third surgeries of Claimant, as well as significant time in the hospital, was due to complications from Claimant’s first surgery. While one can surmise that the initial surgery was an intervening event that caused the subsequent treatments, there was no medical evidence presented to establish that supposition. Rather, the only medical evidence is the testimony of Dr. Poulos, and he connects all medical care to the injuries [*172] sustained by Claimant in the accident. It is the opinion of the court Claimant is entitled to $571,068.57 for medical special damages.

Unlike medical bills, pain and suffering is not arrived at by formula. To compensate an individual for pain and suffering rests in the eye of the beholder.

Claimant certainly suffered pain as a result of his injuries. Claimant underwent surgery, physical therapy, and other medical treatments. Dr. Poulos testified that the primary issue was the stenosis and spondylolisthesis, which are both degenerative conditions that have nothing to do with the accident, and are not caused by acute trauma. However, Dr. Poulos did testify that the accident more likely than not aggravated these degenerative conditions. Thus, it is the finding of the Court that Claimant is awarded $500,000 for pain and suffering.

Awarding Claimant for future pain and suffering as well as loss of normal life is also in the eye of the beholder. Claimant suffered due to his pre-existing condition.

However, how much that suffering is attributed to the motor vehicle accident as opposed to his degenerative conditions was not definitively presented by Dr. Poulos. Claimant is awarded $300,000 for future pain and suffering, and $300,000 for loss of normal life.

While Dr. Poulos testified that injuries aggravated Claimant’s degenerative conditions, Dr. Poulos was not definitive as to whether the work limitations on Claimant were attributed to the accident or to Claimant’s degenerative conditions. It is unclear to the Court whether the injuries sustained in the accident caused his work limitations or whether his limitations were due to his degenerative conditions of stenosis and spondylolisthesis. Further, the evidence is not persuasive that but for the work limitations that Claimant would not have lost his job as he testified that his dismissal was part of a downsizing effort by his employer. The Claimant bears the burden of proving both liability and damages proximately resulting thereform. See Dow v. State of Illinois, 65 Ill. Ct. Cl. 166, 171 (2013). It is in the opinion of the Court that Claimant failed to meet his burden of proving that he lost his job due to the accident in this matter as opposed to his degenerative conditions or downsizing. Claimant was awarded nothing for lost wages.

This Court finds that the total damages to Claimant equals $1,671,068.57 of which $571,068.57 are for medical expenses and $1,100,000 are non-economic damages. The State is jointly liable for the total of the medical expenses. The State is severally liable for the non-economic damages at a rate of 20%, Wittenborn’s share of fault. This amount equals $220,000. So, the total damages against the State is $791,068.57, ($571,068.57 in medical expenses and $220,000 for non-economic damages). The next step is to deduct the $100,000 that Claimant received from Prommer. This results in a damage award to the Claimant in the amount of $691,068.57.

IT IS HEREBY ORDERED that Claimant’s claim is granted and Claimant is awarded $691,068.57.