James Mestan v. State of Illinois

OPINION

AUSTRIACO, J.

James Mestan (“Claimant”) filed this Complaint against the Illinois Department of Transportation (“IDOT”) on June 5, 2018, alleging that IDOT was negligent in failing to properly construct and maintain its roadway, resulting in an accident that caused personal injury to Claimant. A hearing on the merits took place before a Commissioner of the Court on April 22, 2022, and post hearing briefs were filed by the parties on July 3, 2022, and August 5, 2022.

FACTS

The Accident

On June 10, 2016, Claimant left his home in Elburn, Illinois at approximately 6:00 p.m. for a bicycle ride to Maple Park, Illinois. Claimant is a bicyclist with decades of experience, and routinely took this approximately 25-mile ride.

On this particular day, Claimant decided to take Route 47, a route he did not normally take on the way back home from Maple Park. He did so in order to avoid a freshly oiled country road. As he rode northbound on Route 47, he rode on the asphalt shoulder. While traffic was light that day, Claimant rode on the shoulder to stay as far right as possible to be safe and courteous to cars also heading northbound.

As he approached an intersection with Route 64, northbound Route 47 went from one lane to three lanes, including a left turn lane, a through lane, and a right turn lane. The paved asphalt shoulder ended prior to the intersection with Route 64, so Claimant began to merge back into the roadway to prepare for a right turn onto Route 64. As he did so, his bicycle tires went into a gap between the shoulder and the roadway, and then abruptly stopped, propelling Claimant off the front of his bicycle onto the concrete pavement. Claimant estimated that he was traveling about 12 miles per hour at the time. Although he extended his right arm to attempt to break his fall, he landed on his face, suffering a concussion, subarachnoid hemorrhage and severe facial injuries as well as injuries to his right arm.

The Alleged Defect

Claimant alleges that there was a gap between the right edge of the roadway on Route 47 and the paved shoulder approximately 1-2 inches wide. A video entered into evidence by Claimant suggests depth of the gap between 2 and 10 inches. The video also [*244] shows a height differential between the shoulder and the roadway of between 0 and 2 inches at various points. At the end of the gap there is a ledge of approximately 2 inches, according to this video. The gap and height differentials are hereinafter referred to as the “Defect.”

The intersection, and Route 47 leading up to the intersection, were under construction from 2012 to 2015. It was commissioned for use starting in August 2015. No evidence was presented as to how long the Defect existed along Route 47, nor as to its specific cause. Witnesses from IDOT were questioned as to how long the defect may have existed but their answers were largely speculation. Testimony from IDOT employees suggested the Defect may have been a product of the construction, it may have resulted from settlement of the concrete, and it may have been caused by environmental conditions (cooling and heating of the concrete).

For example, testimony from Bryan Burnell, an IDOT operations supervisor responsible for highway maintenance in Kane County, was offered into evidence. When asked what could cause a gap between the roadway and the shoulder, such as the Defect, other than the roadway actually being constructed with the gap in place, Burnell stated:

Settlement could cause that. The pavement could settle. The differences between

materials, between concrete and bituminous react differently to heat and cool, so

they would either contract or expand. That would cause that issue, and there’s no

bonding between the two. They’re just butted up against each other, so there’s

not physical bonding to holding two together.

No testimony was offered from any independent expert as to what, to a reasonable degree of certainty, actually caused the Defect.

There is no evidence on which to estimate how long the Defect may have existed. Based on the video evidence submitted, the gap was not the type of Defect that may come into existence suddenly, but there is also no suggestion as to how long this type of Defect takes to develop. There was speculative testimony provided from some witnesses as to how long the gap may have existed, but these witnesses were not offered as experts for such opinions.

In April 2016, IDOT conducted a needs survey at the intersection, which would have included a visual inspection of the intersection, including the shoulder. Burnell testified that he did not recall seeing the gap as part of his inspection. He did admit that it likely existed during the inspection (although he does not provide the basis for that conclusion), and he testified that had he noticed the Defect, he would not have considered it a hazard. However, Burnell did not recall seeing the Defect during the April 2016 inspection, so his testimony about that inspection did not establish whether the Defect either existed or not at that time.

Finally, Claimant admitted that he had taken Route 47 going north on his bicycle once or twice since the construction was concluded in 2015. He did not state that he had noticed the Defect previously. On the day of the accident, Claimant rode the shoulder on Route 47 for approximately 50 yards before attempting to merge back onto the roadway. He did not see the gap before the accident occurred, and the first time he ever noticed it was when he returned to the area a few weeks after the accident.

[*245] LEGAL ANALYSIS

The State has a duty to maintain its highways in a reasonably safe condition. Blair v. State, 47 Ill. Ct. Cl. 242, 242-43 (1994). However, the State is not an insurer against all accidents that may occur by reason of the condition of its highways. Scroggins v. State, 43 Ill. Ct. Cl. 225, 226 (1991). To prevail in a negligence action, a claimant must prove by a preponderance of evidence that: (1) the State breached its duty of reasonable care; (2) the State’s negligence was the proximate cause of the injury; (3) a dangerous condition or defect existed; and (4) the State had actual or constructive notice of the condition. Id. at 227; Hanawell v. State, 47 Ill. Ct. Cl. 270, 275 (1995).

While Claimant suggests that the Defect existed in the roadway, based on the video submitted into evidence, the gap and ledge exist outside the roadway, on the shoulder. Testimony from IDOT witnesses is that the roadway exists between the white lines of the road, and the gap existed outside of that. Claimant has not established that the gap existed in the roadway, and Claimant admits he was riding on the paved shoulder and merging onto the roadway when he came into contact with the Defect.

In Welch v. State, 25 Ill. Ct. Cl. 270, 277 (1966), the Court made clear that the State “is not bound to maintain a shoulder in the same condition as the paved surface of the highway.” This holding was reiterated in Scarzone v. State, 43 Ill. Ct. Cl. 207 (1990), a case in which the Court denied the claim of a minor who suffered injuries when she fell from her bicycle after encountering a pothole on the shoulder of an Illinois roadway.

At the time of the Claimant’s accident in this case, it was a violation of the Illinois Vehicle Code at 625 ILCS 5/11-709.1 for a bicycle or a car to use the shoulder for anything other than stopping or accelerating from a stop.9 Claimant was using the shoulder as a roadway, and therefore he was not an intended user of the shoulder. While the State has a duty to maintain its roads in a reasonably safe condition for the purposes to which they are devoted, the law does not impose a duty on governmental entities to safeguard against use that was not intended. See Gillespie v. State of Illinois, 63 Ill. Ct. Cl. 240, 242 (2011) Citing Wheel v. State, 42 Ill.Ct.Cl. 231, 233 (1990). Therefore, Respondent did not owe a duty to Claimant to maintain the shoulder to be safe for use as a bicycle route.

Claimant cites Peterson v. State of Illinois, 37 Ill. Ct. Cl. 104 (1984) as establishing a standard for the maintenance and construction of highway shoulders, specifically that “the proper standard is that all parts of the shoulder that touch the edge of the pavement should be kept flush with the pavement.” Peterson was citing the standards of the American Association of State Highway and Transportation Officials, as they existed in 1984. The State in that case did not contest the applicability of those standards, and the

While Claimant argues that this statute should not be considered because it was amended by legislature, effective January 1, 2018, it was the effective law at the time of the incident in 2016. Claimant cites no support for this Court to disregard the effective law at the time. Further, though the statute was amended so that bicyclists no longer violate that statute by riding on the shoulder, it does not necessarily follow that bicyclists are now intended users of the shoulders of Illinois highways throughout Illinois, and that Illinois must maintain all shoulders as designated bicycle routes.

[*246] Court concluded they could be considered as supporting a failure to exercise due care. However, almost 40 years later, it is unclear whether these standards may have changed, and Claimant cannot rely on Peterson to present arguments in this case.

Even assuming Respondent owed a duty to maintain the shoulder for the purposes of regular bicycle use, there was no evidence presented of any actual notice to the State of the Defect, and therefore Claimant must rely on constructive notice.

Constructive notice is a difficult burden to meet. To prove constructive notice, a claimant must show that the “defect was substantial enough and existed for such a length of time that reasonable persons would conclude that immediate repairs should be made.” Id. (quoting Aetna Casualty v. State, 37 Ill. Ct. Cl. 179, 181 (1984)). The test for constructive notice is “whether the condition by its evident nature, duration, and potential harm should necessarily have come to the attention of the State.” Commercial Union Insurance C0. v. State, 47 Ill. Ct. Cl. 301 (1995). Whether the State had constructive notice of a condition depends on the facts of each case. Strills v. State, 41 Ill. Ct. Cl. 60, 62 (1989).

In this case, there is insufficient evidence to conclude that State should have been on notice to repair the dangerous condition. While Claimant attempts to argue that the condition existed for a period of months, or may have existed immediately after construction, there was no direct evidence presented as to when the condition first arose. Testimony from employees of Respondent speculated that the condition may have been caused by settling after construction, or weather conditions such as heat or cold. But these witnesses were not tendered to the Court as expert witnesses, and no expert witness was presented to provide an opinion as to what caused the Defect, and how long it may have existed.

Claimant cites Welch v. State, 25 Ill. Ct. Cl. 270 (1966) for the proposition that the Defect in this case should have been discovered by the State. In Welch, the defect complained of was a hole 7 feet wide and 3 feet deep on the shoulder of a roadway. Witnesses testified that the hole appeared to have existed for a long time, as shown by vegetation growing inside the hole. The Court concluded the hole should have been discovered by the State by the exercise of reasonable care, as it existed for at least 2 months in a location that was known to experience conditions that would likely cause holes and defects.

Claimant also cites Protective Ins. Co. v. State, 46 Ill. Ct. Cl. 86 (1994), in which the Court concluded that a 6 inch drop-off between the road and the shoulder over a 1-mile stretch of road was a dangerous condition that should have been discovered by the State. Witnesses testified that this drop-off existed for at least 3 years, and likely as long as 10 years. Expert testimony was also presented supporting the fact that the drop-off was a dangerous condition.

In this case, unlike Welch or Protective, there is no testimony on which to base how long the condition existed. The dangerous condition itself is not as recognizable as a hole 7 feet wide and 3 feet deep, and no witnesses testified they had seen the Defect previously. Claimant, an experienced bicyclist, had ridden the same route at least once since the construction was completed. He did not notice the Defect at that time. Claimant [*247] also testified that he did not see the Defect on the day of the accident, and saw it for the first time when he returned to the area weeks later. Based on this, it is not possible to conclude that the State should have noticed the Defect before the accident, and repaired it.

For the above stated reasons, the Claimant has failed to prove his claim of negligence by a preponderance of the evidence, and the claim is denied.