Erica Lopez-Linton v. State of Illinois

This matter is before the Court upon the recommendation of a Commissioner after trial in which evidence and testimony were heard, closing arguments and briefs were submitted, and multiple stipulations to evidence were submitted. The Court being fully advised in the premises, finds as follows:

BACKGROUND

On August 26, 2011, Oscar Flores, Wesley Ramos, and Nicholas Linton were each traveling at high rates of speed on motorcycles eastbound on Interstate 88 (“I-88”). Sherry Brown was riding as a passenger on Wesley Ramos’ motorcycle. Illinois State Trooper Sergeant David Schneider began approaching the three motorcyclists in an unmarked squad car in an attempt to gather the motorcyclists’ plate information. Sergeant Schneider then sped ahead of the three motorcycles and, while ahead of Wesley Ramos and Nicholas Linton, merged into their lane before activating his breaks. Shortly after Sergeant Schneider merged into the lane in front of Nicholas Linton and activated his brakes, Nicholas Linton lost control of his motorcycle, fell off his motorcycle, skidded across several lanes, and was run over by a truck. He was pronounced dead at the scene.

Claimants Erica Lopez-Linton, Lyric Linton and Lillian Linton subsequently filed a wrongful death claim against the State of Illinois.

[*134] At trial, both parties stipulated to the submission of the depositions of Oscar Flores, Wesley Ramos, Sherry Brown, and Christina Freisleben into evidence. The parties also stipulated to the reports of Economists David S. Gibson for the Claimant and Dr.

Gary R. Skoog for the Respondent. Claimant called Erica Lopez-Linton, the widow of Nicholas Linton, as a witness, as well as Dr. Geoffrey Alpert, the Claimant’s expertwitness on the use of force, high-speed chase and pursuit. Respondent called Sergent Schneider as a witness, in addition to two ISP-certified Traffic Crash Reconstruction officers, Sergeant James Knipper and Trooper Timothy Neer. Footage from Sergeant Schneider’s dash camera that partially recorded the incident was also admitted into evidence.

On December 9, 2019, the Claimant presented five motions in limine to the Commissioner, all of which were granted. The granted motions in limine included: to admit life tables into evidence; to bar argument that Nicholas Linton was contributorily negligent; to permit party opponent statements from the discovery deposition of Master Sergeant James Knipper; to permit party opponent statements from the discovery deposition of David Schneider; and to permit party opponent statements from the discovery deposition of Timothy Neer.

FACTS

On August 26, 2011, Oscar Flores (hereafter, “Flores”), Nicholas Linton (hereafter “Mr. Linton”), Wesley Ramos (hereafter, “Ramos”), and Sherry Brown (hereafter “Brown”) were traveling eastbound on I-88. Brown was riding passenger on Ramos’ motorcycle. (Ramos Dep. p. 26). I-88 is a four-lane highway. For the sake of simplicity, the leftmost lane shall hereafter be referred to as ‘lane 1’ and the rightmost lane shall be referred to as ‘lane 4’. The speed limit on I-88 in the area where the incident occurred was 55 miles per hour. Sergeant David Schneider (“Sergeant Schneider”) was traveling eastbound on I-88 in an unmarked squad car and, believing the motorcycles to be traveling above the speed limit, attempted to gather all the motorcyclists’ plate information. (December 10, 2019, Trial Transcript at 200). Sergeant Schneider was able to get Flores’ plate information, which revealed no flags. (December 10, 2019, Trial Transcript at 200). Sergeant Schneider then accelerated to over 90 miles per hour and [*135] moved ahead of Flores in an attempt to gather the other two motorcyclists’ plate information. (Ramos Dep. at 26-27 and 79).

After passing Flores, Sergeant Schneider was traveling in lane 3, and Ramos and Mr.

Linton were traveling in lane 4. (Sergeant Schneider Dep. at 214). Ramos, still in front of Sergeant Schneider, transferred to lane 3 at a high rate of speed. (December 10, 2019, Trial Transcript at 213). Sergeant Schneider sped up, and Ramos transferred back into lane 4. (Ramos Dep. at 26-27, 79, and 91). Sergeant Schneider, still in lane 3, passed both Ramos and Mr. Linton and quickly transferred to lane 4. (Ramos Dep at 26-27, 79, 91). At this point in time, Sergeant Schneider activated his car’s lights and sirens for the first time. (Ramos Dep. at 25). Ramos testified that he was unaware that Sergeant Schneider was an Illinois State Trooper until Sergeant Schneider merged into lane 4 because Sergeant Schneider was in an unmarked squad car and waited until this point in time to activate his sirens and lights. (Ramos Dep. at 25).

Sergeant Schneider, now in front of Ramos and Mr. Linton, began activating his brakes in lane 4. (Ramos Dep. at 26-27, 79, 91). Ramos testified that, due to Sergeant Schneider’s slowing down in front of him in lane 4, Ramos hit his emergency brakes harder than he had ever done in his life. (Ramos Dep. at 27). Mr. Linton, now behind Sergeant Schneider, also attempted to brake, but lost control of his motorcycle. (Flores Dep. at 11, 22, 34). Mr. Linton fell off his motorcycle and his body skidded from lane 4 to lane 2. (Flores Dep. at 27, 33). An oncoming truck then ran over Mr. Linton’s body after he fell off his motorcycle. (Flores Dep. at 27, 33). Mr. Linton was pronounced dead at the scene of the incident.

Flores was an eyewitness who was able to see the incident occur in real time since he was behind Sergeant Schneider, Ramos, and Mr. Linton during the incident. Flores testified that Mr. Linton lost control of his motorcycle only when Sergeant Schneider merged into lane 4 in front of Mr. Linton. (Flores Dep. at 26). He also testified that Sergeant Schneider did not activate his car’s lights and sirens until merging into lane 4 in front of Ramos’ and Mr. Linton’s motorcycles. (Flores Dep. at 23). Trooper Timothy Neer (“Neer”), witness for Respondent, estimated that both Sergeant Schneider and Ramos were traveling at about 89 MPH when they passed Mr. Linton. (December 12, 2019, Trial Transcript at 391-392).

[*136] At issue in this case is whether Sergeant Schneider was following the motorcyclists in “enforcement driving” or “pursuit driving” mode. Sergeant Schneider testified that he was patrol driving when he first heard and saw the motorcyclists, then switched to enforcement driving when he decided to get the motorcyclists’ plate information. (December 10, 2019, Trial Transcript at 196). Sergeant Schneider claims he was not in pursuit driving mode because his emergency lights were not on, and the offenders were not fleeing or evading him. Neer, Witness for Respondent, also testified that Sergeant Schneider was in enforcement driving mode, not pursuit driving mode. (December 12, 2019, Trial Transcript at 420-421). Whether Sergeant Schneider was following the motorcyclists in enforcement or pursuit driving mode, it was Sergeant Schneider’s discretion to wait to activate his sirens and lights when he transferred from lane 3 to lane 4 in front of Ramos and Linton.

Respondent claims nothing in a review of the evidence showed that Sergeant Schneider was not in control of his vehicle at any point while driving. Sergeant Schneider, however, admitted that during this pursuit, he was in excess of 90 MPH, had one hand on the steering wheel, and was typing on the squad on-board computer to do speed calculations. (December 10, 2019, Trial Transcripts at 291-294). Respondent alleges that these activities could normally be dangerous, but they are not dangerous when performed by a trained police officer.

Respondent’s witness Sergeant James Knipper (“Knipper”) is a certified accident reconstructionist. On the night of this incident, Knipper was called to the scene.

According to Knipper, Ramos caused the accident that killed Mr. Linton by changing lanes and slowing down abruptly. (Knipper Dep. at 62). Knipper stated that while Sergeant Schneider’s decision to pull in front of the motorcycles in order to initiate a stop was not conventional it was an allowable method under ISP procedures. (December 12, 2019, Trial Transcript at 356). When Knipper was asked if Sergeant Schneider was the reason why Ramos transferred from lane 3 to lane 4, Knipper stated he “can’t say that for sure.” (Knipper Dep. at 63).

Dr. Alpert, Claimant’s expert witness, testified that Sergeant Schneider drove recklessly and was negligent when he merged from lane 3 to lane 4 in front of Ramos and Mr.

Linton. This maneuver, frequently referred to as a “rolling roadblock”, is forbidden by [*137] most police departments, and is only used to stop violent felons. (December 10, 2019, Trial Transcript at 126-127, 144). Dr. Alpert also testified that, based on Ramos’ position when Sergeant Schneider initiated the rolling roadblock, the maneuver was extremely dangerous. (December 10, 2019, Trial Transcript at 129). The technique is never used for traffic violations or on motorcyclists, and usually requires at least three police vehicles. (December 10, 2019, Trial Transcript at 129-130).

Dr. Alpert also testified that Sergeant Schneider acted recklessly by waiting to turn on his sirens and lights until he was merging from lane 3 onto lane 4 in front of Ramos and Mr. Linton because to do so at a very close proximity is much more likely to “distract and/or scare a motorcycle driver or any driver who’s that close.” (December 10, 2019, Trial Transcript at 126-127). Dr. Alpert testified that Sergeant Schneider should have activated his emergency lights earlier and attempted to pull over Ramos when Sergeant Schneider was 100 to 200 feet behind him. (December 10, 2019, Trial Transcript at 126).

The Illinois Court of Claims has previously held that, in order to prevail on a claim of negligent driving by a State Trooper, the claimant must prove that a duty was owed to them, that there was a breach of that duty, and that the damages proximately resulted from that breach. Kimberly Dorsey, as Executrix of the Estate of Jessica Uhl, & Kimberly Dorsey, as Executrix of the Estate of Kelli Uhl v. State of Illinois, 63 Ill. Ct. C1. 177, 199 (2011). The Illinois Court of Claims has defined proximate cause as follows:

One which produces the injury through a natural and continuous sequence of events unbroken by any effective intervening cause. If the negligence charged does nothing more than furnish a condition which made the injury possible and that condition causes an injury by the subsequent independent action of another, the creation of that condition is not the proximate cause of the injury. The subsequent independent act becomes the effective intervening cause which breaks the casual connection, and itself becomes the proximate cause. It need not be the only or the last cause or the nearest cause. It is sufficient if it occurs with some other cause acting at the same time, which, in combination with it, causes the injury. Rech v. State, 66 Ill. Ct. C1. 232, 237 (2014) (emphasis added).

[*138] Claimant alleges that Sergeant Schneider was a proximate cause in the death of Mr. Linton. Claimant is only required to prove that an individual was a proximate cause for a finding of liability against the Respondent. The proximate cause section of the Illinois Pattern Jury Instructions (hereafter “IPI”) defines proximate cause as follows:

[w]hen I use the expression “proximate cause”, I mean a cause that, in the natural or ordinary cause of events, produced the injuries complained of. 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. IPI 15.01.

ANALYSIS

Respondent’s post-trial brief explicitly argues that the decision of Ramos to cut off Mr. Linton in lane 4 caused the accident. (Respondent’s brief at 36). If Ramos did indeed “cut off” Linton, it was only because Sergeant Schneider passed both motorcyclists at speeds above the I-88 speed limit, transferred into their lane, and abruptly slowed his car down. Sergeant Schneider did not turn on his lights or siren until he was transferring to lane 4 in front of Mr. Linton. While Respondent attempts to shift liability to Ramos, this Court is not here to decide whether Ramos could potentially be held liable in this case.

Even if Ramos was directly in front of Linton when he activated his emergency brakes harder than he ever has in his life, both motorcycles were forced to engage their brakes because of Sergeant Schneider’s driving. In the words of Respondent’s brief, “[i]t is uncontroverted that an Illinois State Trooper owes a duty to operate his vehicle with due regard for the safety of the public while patrolling the highways.” It is clear to the Court that Sergeant Schneider failed to abide by these standards in this situation.

As previously established, proving proximate cause does not require showing that the alleged cause “be the only or the last cause or the nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which, in combination with it, causes the injury.” Rech, 66 Ill. Ct. C1. At 237. The evidence presented to the Court established the fact that, without his lights or sirens activated, Sergeant Schneider was driving in excess of 90 MPH with one-hand on the steering wheel and doing speed [*139] calculations with his other hand. (Sergeant Schneider Dep. at 60-61, 69, 76-77). Sergeant Schneider admitted that he did not indicate to the motorcyclists to slow down. (December 10, 2019, Trial Transcript at 275). Sergeant Schneider knew that pulling a motorcycle over from the front is unusual, and he was not trained to perform this maneuver. (December 10, 2019, Trial Transcript at 244). The evidence presented to the Court supports the conclusion that Sergeant Schneider acted negligently throughout the incident in question and proximately caused the death of Nicholas Linton. While Sergeant Schneider may not have been the only cause of Mr. Linton’s death, it is clear that he was, at the very least, a cause of Mr. Linton’s death. The Court accordingly finds in favor of the Claimant on the issue of liability.

In its post-trial brief, Respondent argues for the first time that Mr. Linton was contributorily negligent in his own death. In Illinois, a plaintiff is barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is more than 50% of the proximate cause of injury or damage for which recovery is sought. 735 ILCS 5/2-1116. The Civil section for the Illinois Pattern Jury Instructions defines contributory negligence as: It was the duty of the plaintiff, before and at the time of the occurrence, to use ordinary care for his own safety and the safety of his property. A plaintiff is contributorily negligent if (1) he fails to use ordinary care for his own safety or for the safety of his property and (2) his failure to use such ordinary care is a proximate cause of the alleged death. IPI B10.03.

In this case, however, the Respondent did not raise the affirmative defense of contributory (or comparative) negligence until after the trial. In Illinois, failure to plead an affirmative defense such as a claim of comparative or contributory negligence prior to trial waives the asserted defense. Blackburn v. Johnson, 187 Ill.App.3d 557, 565 (1989); see also Todd v.

State, 53 Ill. Ct. C1. 5, 7 (2001) (holding that Respondent’s inadvertence did constitute good cause for its failure to timely assert the affirmative defense of claimant driver’s comparative negligence and the Court of Claims would proceed as if claimant’s negligence was not in issue). Indeed, the Commissioner granted Claimant’s motion in limine prior to the trial, which barred any argument the Mr. Linton was contributorily negligent, after Respondent’s counsel acknowledged no such affirmative defense had been [*140] pled and that the Respondent was not seeking to reduce any potential award by comparative fault.

Even had Respondent timely filed an affirmative defense for contributory negligence, however, we would not have found Claimant to be more than 50% at fault in this case. While Mr. Linton acted with disregard for the safety of himself and those around him when he traveled approximately 92 MPH in a 55 MPH speed limit zone on a motorcycle, thereby creating some of the conditions that led to his fatal injuries, we cannot say this conduct rose to the level of being over 50% at fault for the accident that transpired. Mr. Linton was not haphazardly shifting lanes, nor was he operating his vehicle without proper equipment when this incident occurred. There was no evidence introduced to suggest that Mr. Linton was doing anything dangerously other than his driving at speeds in excess of 90 MPH.

Respondent nonetheless contends that there is insufficient evidence to prove who proximately caused the accident. We disagree. Claimant demonstrated with reasonable certainty that Sergeant Schneider’s negligence caused the accident that ultimately resulted in Mr. Linton’s death. Respondent’s argument fails, and this Court finds in favor of the Claimant.

DAMAGES

Although no amount of money will ever adequately compensate for the loss of Mr.

Linton’s life to his family, it is, unfortunately, this Court’s job to assign a monetary value to such loss. Erica Lopez-Linton, the widow of Mr. Linton, testified as to the loss that she and her family have experienced as a result of Mr. Linton's death. Mr. Linton is survived by his two daughters, Lillian and Lyric Linton. At the time of Mr. Linton’s death, Lillian Linton was seven years old, and Lyric Linton was two years old. The Linton family would go to festivals and movies together, in addition to eating breakfast every Sunday as a family. Erica Lopez-Linton testified that Mr. Linton was an attentive and joyful father to his two daughters, and that he loved being a father.

Illinois Pattern Jury Instruction 31.01 provides guidance on the exact metrics the Court should use to determine damages in a wrongful death claim. These elements include the decedent’s age, health, physical and mental characteristics, as well as other similar elements. IPI 31.00. This Court specifically appreciates the more nuanced elements, [*141] however: the grief, sorrow and mental suffering of his surviving family and the relationship between his surviving family and himself. IPI 31.01. Hopefully, with the damage calculation below, Erica Lopez-Linton, Lillian Linton, and Lyric Linton will be able to live life in such a way the Mr. Linton would have wanted for them.

As a result of this incident, Mr. Linton passed away at age 29. He had a life expectancy of 48.8 more years according to a table of mortality. Mr. Linton was working full-time and had no retirement plans at the age of his death. Economists’ reports for both the Claimant and the Respondent as to loss of earnings capacity, or support, were submitted. Claimant’s expert, Mr. Gibson, estimates the loss of earning capacity for Mr.

Linton as between $2,064,861 and $2,111,291. Once adjusted for personal consumption pursuant to the family income method, the loss of earning capacity is estimated to be between $1,637,435 and $1,773,484.

Respondent’s expert Dr. Gary Skoog, on the other hand, found the loss of support to Mr. Linton’s surviving family to be $652,962 using the family income method.

Respondent claims that loss of earning capacity is irrelevant under the Illinois Wrongful Death Act, but Respondent fails to cite a source for this supposed irrelevancy. Using the Claimant’s expert calculations applying the family income method, this court finds the loss of earning capacity to be between $1,637,435 and $1,773,484.

In addition to loss of support, Illinois Pattern Jury Instruction Civil 31.11 allows surviving family members to recover for the loss of society. IPI 31.11 defines loss of society, as: The mutual benefits that each family member receives from the other’s continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection. IPI 31.11.

In Dorsey, supra, the Court of Claims awarded $1.75 million for loss of society, along with damages for grief and mental suffering, to each of the parents of two teenage sisters killed in an accident caused by a state trooper’s negligence. Dorsey, 63 Ill. Ct. C1. at 208. In that case there were two decedents whereas this case involves just one. As such, this Court deems that an additional $875,000 to compensate Mr. Linton’s surviving family members for loss of society, grief and mental suffering is warranted.

[*142] Taking account of both the loss of Mr. Linton’s earning capacity, based on the experts’ testimony, and the loss of society, the total recovery based on the experts’ calculations falls between $2,487,435 and $2,623,484. Taking the average of these two amounts, this Court finds that Claimant is entitled to a total recovery of $2,555,459.50.

Respondent notes in its closing brief that under Section 26 of the Court of Claims Act, any recovery awarded by the Court shall be subject to the right of set-off. 705 ILCS 505/26. In this case, the parties stipulated that Claimant received $20,000 to settle a lawsuit against a different party in this case arising from the same August 26, 2011 accident. Claimant did not dispute Respondent’s application of Section 26 in this matter.

As such, the Court will deduct $20,000 from the total recovery amount set forth above, for a total award of $2,535,459.50.

CONCLUSION

IT IS HEREBY ORDERED that the Claimant be awarded the total amount of $2,535,459.50 in full and final satisfaction of this claim.