Justin Moreno v. State of Illinois

OPINION

Claimant Justin Moreno brings this tort claim seeking compensation for a broken clavicle he suffered when he lost control of his motorcycle traveling over a heavily uneven and rutted patch of road in the middle lane of I-55 southbound between Kedzie and Pulaski in Chicago, Illinois. A hearing was held before a Commissioner February 27, 2023.

Claimant, currently 34 years old, testified that he had been riding motorcycles since he was about 16 and even rode a motorcycle through canyons in California. On July 7, 2019, an overcast but dry day, Claimant was riding a restored 1978 Suzuki GS 400 he had owned for about 2-and-a-half years.

Claimant, two of his cousins and his uncle were riding their motorcycles to Starved Rock State Park to meet up with other family members who were also riding motorcycles. At around 11:30 a.m., Claimant and his three relatives entered the three southbound lanes of I-55 at Kedzie. Claimant had never ridden his motorcycle at this location before.

Riding in a staggered formation, Claimant’s uncle was in front, followed by Claimant’s cousin Daniel, then Claimant, and then Claimant’s cousin Andrew. Claimant recalled entering the highway the same way he always entered a highway: he merged into the right lane, checked his blinkers, blind spots, and mirrors, and then he repeated those actions as he merged into the middle lane. Claimant could only see his cousin Daniel, who was directly in front of him.

[*189] The posted speed limit was 55 m.p.h., but Claimant recalled that traffic was not congested, and cars were traveling fast. Claimant testified that he was “getting comfortable in the middle lane getting up to speed” and looked up ahead and noticed two overpasses. Right after clearing the first overpass, he noticed that there was a large bump in the road, almost like a speed bump with a crack in the middle.

He explained that all he could do was brace himself slightly off the seat to encounter the bump, glance downward, and focus on clearing it. After clearing the bump, he noticed that under the second overpass up ahead, there was a large patch of road about the width of the entire middle lane filled with divots and cracks that looked “troublesome.” He did not want to go over it, but it was about a car length away from him when he saw it - which gave him no time to slow down or move over.

When he went over this rough patch of road, he felt the front tire sink down and kind of shoot back up, and felt the bike kind of violently come up off the ground. At that point the handlebars started to violently wobble from left to right, almost slapping the gas tank. This is when he lost control. The next thing he remembered was passing out, he said he didn’t have time to slow down or move over. He estimated less than thirty seconds elapsed between the time he got on the interstate and the time the accident occurred.

Claimant was taken to the hospital where he complained of pain on the right side of his body and was discharged with his right arm immobilized. Several days later, he went to a specialist who diagnosed him with a broken right clavicle and post concussive syndrome. About twelve days after the accident, Claimant underwent an open reduction with internal fixation of hardware to treat his broken clavicle. Following the surgery, Claimant underwent physical therapy.

Trooper Michael Cahill, the officer arriving on the scene, testified in his deposition that, prior to Claimant’s accident, he had driven through the location in question hundreds of times, and he recalled it being rough and uneven for at least six months to a year prior. He considered that to be a conservative estimate.

Specifically, when discussing what he wrote in the Illinois Traffic Crash Report regarding Claimant’s accident, he stated, “once you get to that spot, you’re going to start seeing brake lights … I can’t tell if [the condition of the road existed] years, months, but it was enough time for me to know that it’s been there for quite some time.”

[*190] He also explained that, partly because of what a bystander at the scene of the accident told him, he concluded in the Traffic Crash Report that the uneven road was the primary cause of Claimant’s accident, and that Claimant was not speeding or driving recklessly. However, he did not write the name of the bystander/witness in the Crash Report and he did not remember who it was.

Trooper Cahill did not recall whether he saw a Rough Road sign prior to Claimant’s accident, however he stated that could be because he was not looking for it prior to the accident. Neither Claimant nor his three relatives recalled seeing a Rough Road sign in the area on the day of the accident. Further, Claimant’s cousin Daniel had traveled through the area in question 6-10 times in three months preceding the accident, and his cousin Andrew had traveled through the area 2-3 times in the month preceding Claimant’s accident - neither saw a “Rough Road” sign on any of those occasions either.

However, the record indicates that a Rough Road sign had been installed in that location on May 1, 2019, pursuant to an IDOT directive. Specifically, on March 13, 2019, IDOT Engineer of Operations at IDOT’s Office of Highway Project Implementation, Amy Eller, emailed a memorandum to IDOT’s Regional Engineers titled “Warning of Deteriorated Road Conditions. The relevant portions of the memorandum stated the following:

As you are aware, potholes and pavement defects can develop rapidly and without

warning. Severe weather conditions have accelerated recurrent pothole issues.

The weather itself, coupled with reduced staffing and fiscal constraints, make it

difficult to properly restore the pavement in an expeditious and

temporary/permanent manner. Those obstacles make it ever more important to

provide a warning to the motoring public allowing drivers to be alerted to possible

changing road conditions and to proceed with appropriate caution when traveling

in such areas. While we will continue to do our best to maintain these areas,

ROUGH ROAD (W8-8) signs should be posted wherever the condition of the road

surface is such that it is likely to have an adverse effect on the handling

characteristics of vehicles.

[*191] James Stumpner, Maintenance Operations Engineer for District 1, where the accident occurred, emailed Eller’s memorandum to his operations supervisors, and asked them to identify locations where such signs should be posted. He would then provide these locations to the IDOT Bureau of Traffic Operations to submit the work orders for the actual installation of the signs.

In response to Stumpner’s email, James Neven, a maintenance operations supervisor for the Stevenson Yard, identified two locations needing Rough Road signs. One of the locations he provided was the location in question: the southbound lanes of I55 east of the railroad bridge before Pulaski.

Ralph Ferri, a lead worker at Stevenson Yard, stated in his deposition that he had verbally told Neven that the location in question needed a Rough Road sign because this was an area where he and his fellow workers were frequently assigned to patch potholes. In fact, Ferri stated that his records revealed that his crew had just patched a series of potholes at the location in question on June 26, 2019, eleven days before Claimant’s accident.

Nevin and Ferri stated that the potholes in this area were a recurring issue and that this was a stretch of road that they constantly had to keep an eye on. Neither knew why the location in question had such frequent potholes although they speculated it might have something to do with water accumulation.

According to Ferri, all the patching rendered the road uneven and bumpy. He explained that when the roads got bumpy like that, IDOT would conduct a milling by using a bobcat or a skid steer with a milling head to grind the road into a smoother surface. This milling was eventually conducted eight days after Claimant’s accident. Neven testified that the location in question had been milled four or five times prior to Claimant’s accident.

The employee at Traffic Operations tasked with preparing and submitting the work order for installation of the Rough Road sign was Regina Cooper, a Civil Engineer-3 in the Traffic Bureau Expressway Division for District 1. She has held that position since 2009 and has been a civil engineer for IDOT since 2006. In addition to preparing and submitting work orders for new sign installations, her duties entailed patrolling the [*192] expressways and looking for signs and poles needing repair and preparing and submitting work orders for those items as well.

Although Claimant’s and Respondent’s experts disagreed regarding how far away from a road hazard a Rough Road sign should be placed, they both agreed that such a determination should be used using engineering judgment, which among other things, include consulting the Manual on Uniform Traffic Control Devices (MUTCD) guidelines on placement of such signs.

But Cooper stated that when she wrote up the work order for the Rough Road sign at the location where Claimant’s accident occurred, she did not consider how far the Rough Road sign should be from the road hazard. Nor did she refer to the MUTCD; she was unaware that the MUTCD had any guidelines regarding sign placement.

Cooper did conduct a Google map search though and noticed a line of trees west of the green Richard Daley College sign on the side of the road. She testified in her deposition that she usually wanted her signs placed away from trees and their branches. Thus, she specified that the sign at the location in question be placed east of the Daley College sign.

She further specified that the Rough Road sign be placed 200 feet east of the Daley College sign, so the Daley College sign was not obstructed. That way the Rough Road sign would be away from the trees and far enough in front if the Daley College sign to not obstruct it.

However, the sign was actually placed west of the Daley College sign (behind it) and next to the line of trees she wanted to avoid.3 She said it was not uncommon for the installation to not comport with her directions; so when she did her patrols, if she noticed a sign was not where she had requested it, she would contact the shop that installed it if she could ask and ask why they placed it elsewhere. If there was not a good reason, she would put another order in to see if they could relocate it to where she had originally 3 When shown a photo of where the Rough Road sign was actually placed, she claimed that she was not concerned with the trees where the Rough Road sign ended up being placed next to because she was more concerned about the trees closer to the bridge. This seems unlikely given that the reason she specified that the Rough Road sign had to be a distance of 200 feet east of the Daley College sign was because she did not want the Rough Road sign to obstruct it. So clearly, she would have preferred to have the Rough Road sign behind the Daley College sign if she thought the Rough Road sign would not be obscured by the trees there.

[*193] asked it be placed. However, with respect to the sign at the location in question, she does not recall making any such request.

On January 16, 2020, about six months after Claimant’s accident, Ralph Ferri was called out to the location in question regarding a guardrail that had been damaged. While inspecting the guardrail, he noticed that the Rough Road sign was knocked over and called it in to the IDOT communications center. Ferri testified that he assumed the Rough Road sign was knocked down when the guardrail was damaged because he would have noticed it was not up prior to that since he patrolled the area in question in his vehicle about four times a day. A replacement sign was ordered on January 28, 2020, and it was installed on February 4, 2020.

Analysis

According to both experts, the Rough Road sign was located about 533 feet away from the bumpy patch of road right after the first overpass. Claimant argues that the MUTCD requires that the sign should have been placed 990 feet away. Both parties have devoted much text to how far away the Rough Road sign should have been placed from the road hazards/defects at the location in question.

But as experts for both parties testified, the purpose behind having enough distance between the road hazards and Rough Road sign is to provide the driver with enough time to react to the sign before encountering the road hazard. Here, whether the Rough Road sign was far enough away from the road hazard/defect to allow Claimant to reduce his speed and possibly switch lanes is immaterial because Claimant never saw the sign.

Claimant also argues that he could not see the Rough Road sign because it was placed next to the line of trees west of the Daley College sign even though Cooper had requested it placed east of the Daley College sign to avoid being placed next to the line of trees that could possibly obstruct the Rough Road sign, taken several months after Claimant’s accident, we find that the sign is close enough to the road and far enough from the line of trees that it was unlikely to have become obscured, even considering that the trees in the photograph might have just been trimmed.

[*194] Nonetheless, for the reasons set forth below, we find that Respondent was negligent for failing to properly maintain the road. Negligence and Duty

To prove a claim of negligence, a claimant must prove the following: the respondent owed him a duty; the respondent breached that duty; and that the respondent’s breach proximately caused his damages. Estate of Johnson by Johnson v. Condell Memorial Hospital, 119 Ill.2d 496, 503, 520 N.E. 2d. 37, 39 (1988). Although the State is not an insurer of the conditions of its roadways, it does have a duty to use reasonable care in maintaining its roads. Trotter v. State, 45 Ill. Ct. C1. 164, 168 (1993).

Breach

Said duty of reasonable care is breached when the State has actual or constructive notice of dangerous conditions on its roads. Id. Thus, as a threshold matter in proving breach, Claimant must establish that Respondent had either actual or constructive notice of the dangerous condition. See Peterson v. Illinois Department of Natural Resources, 61 Ill.Ct.C1. 274, 278 (2009). IDOT clearly had actual notice of the condition.

Here, Claimant argues that Respondent was negligent in failing to repair the condition and for failing to install proper warning signs. Actual notice of the defective nature of the road is undisputed here. In response to Eller’s email, Neven and Ferri identified the location in question as one that had “chronic pavement failures” and required placement of a Rough Road sign.

Next, we turn to whether, upon having actual notice about the rough road conditions at the location in question, Respondent used reasonable care in preventing Claimant from a foreseeable risk of harm. Both Ferri and his supervisor Neven testified that the location in question had warranted extra attention from them because of the frequent potholes that occurred there. Ferri had just patched a series of potholes at the location in question eleven days before Claimant’s accident. Both testified that they did not know why the potholes kept reappearing.

But it was not just the potholes that were problematic, Ferri testified that the frequent patching at different times caused the road to become uneven and bumpy. IDOT would address that by a process called milling to grind the road into a smoother surface.

[*195] There was a milling conducted eight days after Claimant’s accident. Neven testified that the location in question had been milled four or five times prior to Claimant’s accident.

Trooper Cahill states, “I can’t tell if [the condition of the road existed] years, months, but it was enough time for me to know that it’s been there for quite some time.” He conservatively estimated that the issue had existed for six months to a year, but by all accounts, it appears that the road had been in this condition for longer than a year. And during this time, despite knowing that what they were doing was not working, Respondent maintained the status quo, until it eventually decided to erect Rough Road signs.

While we are sympathetic to IDOT’s fiscal constraints, such constraints do not absolve IDOT from its duty of providing reasonable care for the safety of people on its roads. We cannot speak to the reasonableness of any of the other Rough Road signs that Respondent has erected, but with respect to the location in question, we find that the defects in question existed long enough where Respondent should have at least begun to undertake efforts to identify and correct the reason behind why the location in question was so prone to potholes. Accordingly, we find Respondent breached its duty of care by failing to repair or address the underlying defect that caused the road in question to need such frequent pothole patching.

Proximate Cause

For Respondent to be liable to Claimant for this breach, the failure to repair or maintain the road must have been the proximate cause of the damages. Proximate cause is any cause which, in natural or probable sequence, produced the injury complained of. Harry W. Kuhn Redi-Mix Concrete v. State, 45 Ill.Ct.C1. 33 (1993). Here, clearly the road condition is what caused Claimant’s accident. Further, Claimant breaking his clavicle when he fell off his motorcycle was a foreseeable consequence of Respondent not repairing the bumpy and uneven road. Thus, Claimant has established that Respondent’s negligence was the proximate cause of his damages, and Respondent is hereby found to be negligent.

Contributory Fault

Respondent argues that Claimant is contributorily negligent. Claimant’s liability is limited by the extent to which Claimant’s failure to exercise reasonable care in providing for his own safety contributed to his damages. Illinois follows a partial comparative [*196] negligence scheme; a claimant is barred from recovery if his contributory fault accounts for more than 50 percent of the proximate cause of his damages, but if his contributory fault accounts for 50 percent or less, the plaintiff’s recovery is diminished proportionate to the plaintiff’s contributory fault. See Karas v. Strevell, 369 Ill.App.3d 884, 901 (2006) (discussing the comparative negligence scheme under 735 ILCS 5/2-1116).

Here, Claimant testified that he was going 55 m.p.h. and that when he rode over the bumpy patch of road right after the first overpass, he maintained his speed while “focusing on clearing the bump safely.” But after clearing the bumpy patch of road, he still did not reduce his speed. He testified that he did not have enough time to stop or slow down because he was about one car-length away when he first saw the rutted patch of road under the second overpass - which according to the Google Maps evidence in the record, is a little less than 400 feet away from the bumpy patch of road after the first overpass.

Thus, Claimant had occasion to slow down before he was one car-length away from the rutted patch of road under the second overpass. Had Claimant started slowing down right after encountering the bumpy patch of road under the first overpass, he would have been in a better position to brace himself under the second overpass. Had Claimant started slowing down right after encountering the bumpy patch of road under the first overpass, he would have been in a better position to brace himself under the second overpass. In that same vein, had Claimant noticed the Rough Road sign, which as discussed earlier we find was unobstructed, Claimant would have slowed down before encountering the bumpy patch of road under the first overpass. This, in turn, would have enabled him to reduce his speed even further before encountering the second overpass.

Based on the above, we find that Claimant failed to keep a proper lookout and to reduce his speed, and his apportionment of contributory fault is 30%. Accordingly, his award should be reduced by 30%. Damages:

Claimant is a 34-year-old man who broke his clavicle, which required a surgery with a fixation of hardware. Following the surgery, Claimant underwent physical therapy. Although he has a full range of motion, he still has pain and might need surgery to take out the hardware if the pain continues. But even when the hardware is taken out, there is [*197] no guarantee his pain will subside. Further, in the weeks after his accident, he suffered headaches, nausea, dizziness, as well as some road rash and scarring from his surgery that still have not completely dissipated. His medical damages are stipulated at $70,073.44. his lost wages are stipulated at $4,922.80. Given all of the above, we find that Claimant suffered damages in the amount of $125,000. This amount is reduced by Claimant’s apportionment of fault, which is 30%.

WHEREFORE Respondent is hereby ordered to pay Claimant $87,500.