Winfred Rodriguez v. State of Illinois

Claimant brings this claim in negligence for personal injuries, resulting in death, suffered when Tito M. Rodriguez, jr. (“the Decedent”) was riding his motorcycle on interstate 94 eastbound near 69th Street in Chicago, Illinois and was struck by another driver. Claimant seeks damages in the amount of $12,039,497.15 as follows: $2,407,889.43 for the estate of Tito M. Rodriguez under the Illinois Survival Act and $2,407,889.43 each for the Decedent’s mother, father, sister, and half-brother under the Illinois Wrongful Death Act. It is stipulated that any award would offset by the amount of the settlement between Claimant and the other vehicle’s driver.

Factual Background

A hearing on the merits of the claim was held. Testimony was heard from the Decedent’s parents, Winifred Rodriguez and Tito Rodriguez, Sr.; his sister, Nicole Rodriguez, his half-brother Ian Rodriguez; Dennis Anderson, the driver of the other vehicle involved in the accident at issue; Thomas Lyden, Claimant’s civil highway engineering expert; and Kyle Armstrong, the Engineer of Traffic Operations for the Illinois Department of Transportation (‘IDOT”), also testifying as Respondent’s expert.

Testimony was heard via discovery depositions that were admitted by agreement of the parties. Three deponents were IDOT employees: Matthew Daeda, an expressway traffic operations engineer; Regina Cooper, and engineer who reported to Mr. Daeda; and Lisa Heaven-Baum, the Acting Bureau Chief of Traffic Operations for IDOT.

Testimony was similarly heard via discovery depositions from Illinois State Trooper John Grogan, a certified traffic crash reconstructionist, and Edwin Hernandez, who was riding his own motorcycle following the Decedent at the time of the accident. The parties entered into additional stipulations regarding admission of the National Vital Statistics Life Tables, the City of Chicago Fire Department Records of the accident, the hospital records from St. Bernard Hospital, the death certificate of [*174] Tito M. Rodriguez, Jr., and evidence of funeral expenses for the Decedent in the amount of $9,731.00.

On the afternoon of July 20, 2014, the Decedent and two friends met to ride their motorcycles together to work at the 6th District of Chicago Police Department. They were a couple miles from their work location when they entered the eastbound I-94 Dan Ryan Expressway (“the Dan Ryan”) at 69th Street, which runs in a southerly direction at this location. The Decedent rode in front. At this location there are seven lanes of traffic: five express lanes, and two local lanes. The trio was riding in the local lane that is both the entrance lane for those entering the Dan Ryan and a lane utilized by those seeking to reach the 71st Street exit ramp.

At the same time, Dennis Anderson had picked up his sons from boxing practice and had entered eastbound Dan Ryan at approximately 55th Street, also heading in a southerly direction. Mr. Anderson intended to exit at the 71st Street ramp to drop off payment for the boxing lesson but, out of habit, followed his usual route home and entered the express lanes, and then remained in them beyond where he could legally reenter the local lanes to exit at 71st Street. Traveling in the right-most express lane, he realized he had passed the last proper location entry the local lanes for the 71st Street exit, he decided to cut across to the 71st Street exit ramp anyway. This involved illegally crossing two lanes of local traffic. Mr. Anderson had been trained as a bus driver and knew this was illegal. Based on the angle Mr. Anderson drove in order to reach the right-most local lane that became the exit ramp involved driving over a curb and across grass that divided the two local lanes of traffic. The initial traffic bump (called a “gore” in highway construction) Mr. Anderson crossed was demarcated by solid white painted lines on all sides and filled in with solid white painted lines in a chevron pattern. At some point between November 2007 and July 2011, IDOT had installed twelve tubular markers in the gore. Mr. Anderson testified inconsistently during trial as to whether one or two of these tubular markers were present at the time of the accident. Additional evidence establishes that only one tubular marker remained on that date.

In response to Mr. Anderson’s driving across the traffic lane directly in front of the Decedent, the Decedent applied his brakes. Nevertheless, just as Mr. Anderson drove two of his car’s wheels over the curb heading into the grass on his way to the exit ramp, the rear of Mr. Anderson’s vehicle and the Decedent’s motorcycle collided, resulting in the fatal accident.

The “Dan Ryan” is owned by the State of Illinois and maintained by IDOT. At the time of the accident, Matthew Daeda was the IDOT expressway traffic operations engineer whose job duties included monitoring the expressway system in IDOT District 1 - which includes the site at issue - as to the safe and efficient movement of traffic. Mr. Daeda’s subordinates at IDOT facilitated this monitoring of the expressway.

In July 2014, Regina Cooper, a civil engineer who reported to Mr. Daeda, was responsible for inspecting certain portions of expressways in District 1, including the location at issue. Mr. Daeda testified that Ms. Cooper’s responsibilities included looking for any signs of traffic control devices - such as tubular markers - that needed to be repaired or replaced. Mr. Daeda testified that if Ms. Cooper was doing her job properly and discovered any damage or missing tubular markers, she would place a [*175] work order to replace them or bring the situation to his attention so that he could determine whether to replace them or not. However, Ms. Cooper testified that although she drove the expressways two to three days each week looking for damage or destroyed signs and pavement markings, she did not look for damage to tubular markers as she was never instructed to do so.

Tubular markers, also called flexible delineators, are approximately two inches wide, twenty-eight inches tall, and made of plastic. They are glued, epoxied, or bolted to the roadway. They are designed to be flexible and not to cause damage to a vehicle that drives over them. They are never installed alone, but always as a supplement to another traffic control device, usually to emphasize pavement markings. They are classified as a channelizing device, intending to keep motorists in their proper lane or other area, to deter movement into areas where motorists should not be. They are not common in Illinois, including on the Dan Ryan. Under the Federal Manual on Uniform Traffic Control Devices (“MUTCD”), which Illinois is required to follow, tubular markers are an optional supplemental device. Both Claimant’s and Respondent’s experts testified that under the MUTCD, engineering judgment is required to determine to place them and, once placed, damaged or missing markers shall be replaced unless engineering judgment determines they are no longer necessary. There is no evidence that engineering judgment determined the tubular markers at issue should not have been replaced prior to July 2014.

The parties agree that Mr. Anderson illegally crossed the gore at issue and is a cause of the fatal accident. Mr. Anderson pled guilty in Cook County Circuit Court to reckless driving. He paid a fine, was placed on probation, and was incarcerated for just under thirty hours.

The Decedent’s mother, father, sister and half-brother testified. The Decedent’s half-brother Ian was only a year and a half old at the time of the accident, while he has no memories of his older brother, he now will never be able to make such memories, and testified as to the sadness that their mother, father, and sister suffer. As for mother Winifred Rodriguez, father Tito M. Rodriguez, Sr., and sister Nicole Rodriguez, by all accounts they, along with the Decedent, were a very tight family for many years, even once the children became adults. While the parents eventually divorced, the Decedent remained close to both parents, visiting two to three times per week. Prior to the accident, the parents reconciled and credit the Decedent with mother Winifred’s accepting Ian - who was born during the time of marital separation - as a full member of the family. All three adult members of the Rodrigues family testified as to the terror they experienced on the day of the accident. They continue to suffer greatly and will never be the same. They attend counseling and received doctors’ care. They hold on to the Decedents’ furniture, clothing, car, and other possessions, and each has a tattoo honoring their son and brother.

Argument

Claimant argues that Respondent’s failure to replace the missing tubular markers in the gore at issue was a breach of Respondent’s duty to the Decedent and proximately caused the Decedents’ fatal injuries - that although Mr. Anderson was a cause, the missing tubular markers were a material and substantial factor, as well.

[*176] Respondent argues that Mr. Anderson was the sole proximate cause of the Decedent’s injury, that Mr. Anderson’s illegal conduct broke any casual connection of the missing tubular markers to the Decedent’s injury and became the sole proximate cause.

Analysis

Claimant has stated a claim for negligence. In order to prevail, claimant must establish by a preponderance of the evidence: (1) the existence of a duty owed to him by the Respondent; (2) a breach of that duty by the Respondent; and (3) that the breach proximately caused Claimant’s damages. See Johnson v. State, 50 Ill. Ct. Cl. 153, 158 (1997)(citing Kraemer v. State, 42 Ill. Ct. Cl. 236, 245 (1990)).

Duty

The State has a duty to maintain its highways in a reasonable safe condition.

Hambrick v. State, 48 Ill. Ct. Cl. 57, 60 (1995). This includes conducting reasonable inspections to identify any dangerous conditions. Collins v. State, 66 Ill. Ct. Cl. 145, 150 (2014). However, the State is not an insurer of all people traveling on its highways and does not have a duty to prevent all vehicle accidents. See Scroggins v. State, 43 Ill. Ct.

Cl. 225, 226 (1991).

The parties agree that the MUTCD controls the placement and maintenance of tubular markers in the Dan Ryan. Illinois’ supplemental to the MUTCD is silent as to tubular markers, so only the MUTCD controls. Under the MUTCD, while the instillation of tubular markers is optional, even Respondent’s expert testified that once engineering judgment is used to determine their placement, they shall be maintained until engineering judgment is used to determine they are no longer necessary. Mr.

Armstrong also testified that engineering judgment would have been utilized by IDOT to determine the place the tubular markers at issue.

Breach

Claimant alleges Respondent breached its duty by failing to maintain the tubular markers, leading to the absence of eleven tubular markers in the gore, in violation of the MUTCD thus creating a dangerous condition. Respondent argues that the tubular markers are an optional device under the MUTCD and serve only to supplement the existing gore - drawing drivers’ attention to the white lines, which remained visible and legally controlling - and that their absence did not create a dangerous condition.

Claimant counters that once engineering judgment was used to place the tubular markers, the MUTCD requires they may be maintained until engineering judgment determines they are no longer necessary, which had not occurred as of July 2014.

To establish Respondent’s breach, Claimant first must establish that Respondent had actual or constructive notice of the missing tubular markers. See Dortch v. State, 65 Ill. Ct. Cl. 135, 136 (2021). Claimant argues Respondent had actual notice when the gore was repainted sometime between 2011 and 2013, as photos of the gore show that at least tubular markers were missing by 2011 and not replaced by 2013. Mr. Armstrong testified that IDOT would have been responsible for repainting the gore. However, Mr.

Armstrong also testified that, while it appeared that the markers had not been replaced [*177] during that time period, he could not be certain. He also did not know whether an engineering discussion had taken place at IDOT during that time as to whether to maintain or discontinue using the markers at this location. Mr. Armstrong did testify, however, that if a decision had been made to discontinue use of the tubular markers, the MUTCD would require they all be removed. The evidence is uncertain as to precisely when the tubular markers went missing relative to when the gore was repainted, as well as to the possibility that engineering discussions were taking place during this time regarding the continued use of tubular markers at this location. While a close call, the Court finds that Claimant has not established Respondent had actual notice.

Claimant also argues Respondent had constructive notice. Constructive notice may be imputed to Respondent where the condition is substantial enough and has existed for a sufficiently long time that it should have been discovered that reasonable persons would conclude immediate repairs should be made or warning signs posted.

Collins v. State, 66 Ill. Ct. Cl. 145, 150 (2014)(additional cite omitted). Whether respondent had constructive notice of a highway condition that needed repair is a factspecific inquiry. Bryan v. State, 59 Ill. Ct. Cl. 256, 261 (2007). However, where Respondent undertook no inspections, it cannot assert that it met its duty to exercise reasonable care in maintenance of its highway conditions. Pugh v. State, 48 Ill. Ct. Cl 448, 454 (2001). Further, where Respondent’s employees were present during times it is undisputed the traffic control devices were missing, Respondent has constructive notice of their absence. Adams v. State, 35 Ill. Ct. Cl. 216, 220 (1981) (additional cite omitted).

The instant case is an unusual situation where we have both. Matthew Daeda testified that Regina Cooper’s job included driving the relevant portion of the Dan Ryan to look for various issues, including missing tubular markers. Ms. Cooper testified that although she drove this highway looking for missing signage or pavement markings, she never looked to see whether tubular markers were missing. Photographic evidence appears to show the tubular markers had been decreasing in number over multiple years, and a reasonable inspection would have revealed this to IDOT. Therefore, based on the totality of the factual circumstances, the Court finds that constructive notice of the missing tubular markers can be imputed to Respondent and that Respondent breached its duty under the MUTCD to maintain the tubular markers.

Proximate Cause

Proximate cause is any cause that “in natural or probable sequence, produced the injury complained of.” Osborn v. State, 70 Ill. Ct. Cl 157, 160 (2017). Proximate cause has two separate and distinct elements: cause-in-fact and legal cause. Collins v. State, 66 Ill.

Ct. Cl. 145, 149 (2014)(additional cites omitted). Cause-in-fact exists when the injury would not have occurred but for the defendant’s conduct. Id. Legal cause relates to foreseeability of the injury. Lopez v. State, 61 Ill. Ct. Cl. 138, 144 (2013).

Claimant has the burden of proving both cause-in-face and legal cause. As to cause-in-fact, Claimant must specifically prove “the nature and extent of his injury attributable to the claimed negligence” and must do so by a preponderance of the evidence. Enyart v. State, 57 Ill. Ct. Cl. 202, 208 (2004). Respondent’s negligence is the cause-in-fact if it was material, so that but for negligence conduct, the Claimant would not have been injured. Osborn at 161. In Osborn, the right lane of an unlit state road [*178] abruptly ended, becoming a rutted, gravel shoulder, without any warning signs or reflective road markers. Id. Given those circumstances, this Court found a motorcyclist, who was riding on the paved portion of the road and crashed when the road abruptly ended without warning had established cause-in-fact. Id.

On the other hand, if the Respondent merely creates or causes a condition that makes it possible for an independent actor to injure the claimant, the independent actor is the proximate cause and not the Respondent. Stockel v. State, 52 Ill. Ct. Cl. 224 (1999)(drivers intoxication and failure to yield caused Claimant’s injuries, not alleged hazardous condition).

The parties dispute whether the missing tubular markers are cause-in-fact of Claimant’s injuries. Claimant does not dispute that Mr. Anderson was a cause of the collision, but argues that the missing tubular markers are a material cause, as well.

Trooper Grogan noted the missing tubular markers in the Traffic Crash Reconstruction Report and opined that if they had all been in place, it is possible the accident would not have occurred. Claimant’s expert, Thomas Lyden, testified that tubular markers are both a physical and visual deterrent for crossing lanes and have the advantage of being visible even when snow, standing water, or lighting issues might obscure the painted gore, and that these specific tubular markers were a visual and physical deterrent for vehicles in the express lanes from crossing over the local lane to reach the 71st street exit.

Claimant’s expert further opined that IDOT’s failure to inspect, maintain, and replace the tubular markers provided the opportunity for Mr. Anderson to cross the gore from the express lanes to local lane, where he struck the Decedent, and this failure by IDOT was a cause of the Decedent’s fatal injuries. Although tubular markers are not a physical barrier and, by design, may be driven over without causing damage to a car, Claimant points to Mr. Anderson’s testimony that he avoided striking the tubular markers he saw because he thought they could have caused his car to spin around.

Respondent argues that Mr. Anderson is the sole cause-in-fact. Mr. Anderson had been trained as a bus driver and testified he knew it was impermissible to exit at 71st Street from his location in the express lanes. He also knew that crossing solid white lines is prohibited. Mr. Anderson purposefully and illegally crossed the gore of solid white lines, crossed through one lane of local traffic, and had already crossed another solid white line, and had driven two wheels of his car over a raised curb and into the grass - which grassy median he intended to cross on his way to the exit lane - when the collision occurred.

The Traffic Crash Reconstruction Report, along with Claimant’s additional photographic evidence, are conclusive evidence that only one tubular marker remained in the gore in July 2014. While Trooper Grogan opined that if all tubular markers were in place, there is a possibility Mr. Anderson might have chosen not to drive across the gore, Claimant must prove more than a possibility. To prove his case, Claimant relies on Mr.

Anderson’s testimony. However, Mr. Anderson’s testimony as to whether he saw tubular markers before or after he crossed the gore and whether he turned into the gore before, after, or across the tubular marker(s) was grossly inconsistent. His testimony as to the number of tubular markers and drove across them: Q: As you are approaching the area where you are going to [*179] make a turn, you said there was a concrete wall on your right, correct?

A: Correct

Q: Did that concrete wall continue past the 71st Street exit?

A: It was - it was like - from, like, maybe one or two things, if I can recollect, that was right there. They were like rubber standing up, and I went across them like that.

He later testified that he did not see any tubular markers before crossing the gore, and only first saw “a couple markers” from his vantage point after the collision occurred. Still later, he testified that while still in the express lanes, he saw two tubular markers in the gore, passed them, and then crossed the gore. Mr. Anderson does consistently testify as to his general path - that he crossed the gore and the first lane of local traffic, then drove over the curb and partially onto the grassy median on his way to reach the exit lane.

Claimant argues that the missing tubular markers are akin to missing stop signs.

Although stop signs are different type of traffic device from tubular markers, this Court’s past analysis of cause-in-fact in cases involving stop signs is helpful here. First, where a stop sign was missing, leaving an intersection completely open, this Court found that a driver must yield to another driver coming from the right, just as at any open intersection. Where the driver did not, the driver who failed to yield was the cause of the collision. Hodges v. State, 48 Ill. Ct. Cl. 68 (1995). Second, where a traffic control device is missing, but another remains in place and visible to motorists, the motorist must obey the in-place traffic device. Shirar v. State, 25 Ill. Ct. Cl. 256 (1965)(Where “stop ahead” sign was missing but stop sign was present and clearly visible, driver’s negligence in failing to obey stop sign was proximate cause of claimant’s fatal injury). Here, it is undisputed that eleven tubular markers were missing but the solid white lines of the painted gore were present and visible and, like a stop sign, must be obeyed.

Claimant offers his expert’s testimony that tubular markers provide deterrence that would be visible even when the gore might be obscured by snow, standing water, or lighting issues. However, on the afternoon of July 20, 2014, there was no snow, standing water, or lighting issues, as the conditions were clear. Even with the tubular markers missing. The solid white painted lines in the gore were present and visible. Mr. Anderson testified that he saw them. He knew from his training as a bus driver that it is illegal to cross them. Mr. Anderson chose to drive across them, to drive across a local lane of traffic, to drive across a second solid white line, and even drive over a curb and into grass, all while on a major highway, with his sole focus being to reach the exit lane to 71st Street.

Claimant’s expert also opined that the missing tubular markers allowed Mr.

Anderson the opportunity to cross the gore. However, at most this makes the missing tubular markers a Stoeckel-type condition. The Court finds that given tubular markers are not a physical barrier and that neither driving over a raised curb nor into grass [*180] deterred Mr. Anderson from following his chosen route, Mr. Anderson was an independent, intervening cause and is the proximate cause of the Decedent’s fatal injuries.

Lastly, Claimant argues that even if Mr. Anderson would not otherwise be an intervening cause, if Respondent could reasonably foresee Mr. Anderson’s illegal driving maneuver, Respondent can still be liable. Claimant argues that since Kyle Armstrong testified the purpose of the tubular markers is to deter drivers from crossing the white lines, Respondent could foresee Mr. Anderson’s action. To support this argument, Claimant cites case law, but it is factually distinguishable. Contrasting the facts of the instant case with those in Rech v. State - cited by Claimant - best illustrates the inapplicability of this exception here. In Rech, Respondents IDOT employee was aiding a stranded motorist and pushed the inoperable vehicle overly fast into an intersection where it hit another vehicle. Rech v. State, 66 Ill. Ct. Cl. 232 (2014). The driver of the vehicle that was hit filed a claim. Id. Respondent argued unsuccessfully that pushing the vehicle into the intersection was merely a condition and that the owner of the inoperable vehicle became an intervening cause. Rech at 237. The Court was not persuaded, finding that even if the inoperable vehicle was considered an intervening cause, it was foreseeable to Respondent that pushing it too fast might result in the car going through the intersection. Rech at 237-238. Unlike the driver of the inoperable vehicle in Rech, Mr.

Anderson was not physically pushed by Respondent into the lane of traffic where he hit Claimant. Rather, he operated his own vehicle, chose to disregard traffic laws, and independently caused his vehicle to collide with the Decedent’s motorcycle. When he pled to reckless driving, Mr. Anderson admitted he drove “with a willful or wanton disregard for the safety of persons or property.” 625 ILCS 5/11 - 503 (A)(1). Tragically, this recklessness killed the Decedent.

Having considered all of the evidence, the Court finds that Claimant has not established that the missing tubular markers were the proximate cause of the Decedent’s tragic, fatal injury and even if Claimant could establish this, Mr. Anderson was an intervening cause that broke any casual claim. Mr. Anderson’s reckless and illegal driving maneuvers cause the collision and Mr. Anderson was the sole proximate cause of the Decedent’s fatal injury.

Accordingly, for the reasons set forth herein, IT IS HEREBY ORDERED that Claimant’s claim is denied and this matter is dismissed with prejudice.