Paul a. Reichsand Kathleen J. Reichs v. State of Illinois

This claim comes before the Court on a joint stipulation signed by the parties. The joint stipulation states as follows: 1. That the instant claim arose from an automobile accident on December 10, 1977, at Roosevelt Road near Nichol Way in the village of Glen Ellyn. 2. That Claimant Kathleen J. Reichs was a passenger in a 1977 Chevrolet being driven by Paul A. Reichs at the time and place in question. 3. That on the date in question, the roadway was covered with ice and snow, which obstructed all lane markings from view. 4.That the road shoulder to the right of Claimants’ lane was in considerable disrepair and contained several long and deep ruts. 5 . That Claimant was forced to move onto the defective shoulder by another automobile passing closely on the left. 6. That the accumulation of snow and ice prevented Claimant from seeing that he was moving onto the shoulder and prevented him from observing the defective condition of the shoulder. 7 . That upon entering the shoulder, Claimant lost control of his vehicle and was caused to collide with another automobile. 8. That recovery is sought for damage to Claimants’ automobile and for personal injuries received by Kathleen J. Reichs.

[*287] 9. That Respondent concedes that it was negligent in failing to maintain the shoulder in a reasonable manner, and that its negligence was the proximate cause of the accident. 10. That both parties agree that an award of $4,000.00 would be a fair and reasonable compensation for both the property damage and personal injuries. 11. That Claimants agree to accept an award of $4,000.00 as full and final satisfaction of their claim, and agree that they will satisfy the subrogation rights of their insurance carrier (U.S.A.A. Insurance Co.) out of said award. 12. That both Claimants waive and relinquish any and all future claims against the State arising out this accident, and hereby release the State from further liability for said accident. 13. That both parties waive hearing and the submission of briefs. 14. That no other evidence will be presented to the Court.

Although the Court is not obligated to accept a stipulation such as this and grant an agreed award, it does not lack authority to do so if the terms of the stipulation appear to be fair and reasonabIe. It also has no desire to interpose a controversy between parties where none exists.

The recitation of agreed-upon facts in the above stipulation is reasonably thorough and affords a basis for granting an award based upon the negligence of the Respondent. The Court sees no grounds for questioning the accuracy of the above facts or the reasonableness of the agreed damages. Since both parties have had ample [*288] time to investigate the incident, conduct discovery, and analyze their respective positions, we assume that the stipulation was entered into intelligently and with full knowledge of the facts and applicable law. We therefore accept the stipulation and approve the agreed award.

Claimants Paul A. Reichs and Kathleen J. Reichs are hereby awarded the sum of $4,000.00 (four thousand dollars and no cents) in full and final satisfaction of the instant claim.

( No . 80-CC-0952-Claim denied.)

NIEL P. HEWITT, Claimant, o. THE STATE OF ILLINOIS, Respondent.

Opinion filed August 31, 1981.

HUPP, IRION & REAGAN(GEORGE

C. HUPP, of counsel), for Claimant.

TYRONE C. FAHNER, Attorney General (ANDREW R. J ARETT , Assistant Attorney General, of counsel), for Respondent. kIIGHwAYs-snow remoual is legal duty of State. Removal of snow from State highways is legal duty of State in furtherance of requirement that highways be kept reasonably safe for use as highways.

NEGLIGENCE-duty of care of operators of State uehicles. Operators of State vehicles are charged with same duty of care as other drivers upon highways and are liable for damages proximately caused by their negligent acts.

SAME-rear-end collision-no automatic inference of negligence. Driver of rear car in rear-end collision is not automatically negligent as matter of law, as it is responsibility of trier of fact to determine whether rear driver was acting reasonably under the circumstances, or that the accident was unavoidable.

SAME-snowplow struck buried car- no negligence- claim denied.

Driver of State snowplow was not guilty of negligence when he struck Claimant’s buried vehicle while attempting to clear drift from State highway, as it could not be said that State driver was acting unreasonably because Claimant’s vehicle had been abandoned directly in a lane of traffic and was [*289]

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concealed from view by snow at the time it was struck, and the State could not practically be required to search through each snowdrift for abandoned vehicles prior to each snow removal operation.

ROE, C. J. This is a claim brought by Niel P. Hewitt against the State of Illinois for $1,323.19, the amount of damages caused to a 1973 Ford automobile, as a result of being struck by a State of Illinois snowplow. Claimant has charged the State’s employee with the negligent operation of the snowplow proximately causing the damage to Claimant’s vehicle.

Following the Court’s denial of Respondent’s motion to dismiss, a hearing was held before the undersigned commissioner on May 12, 1981. In lieu of testimony, the parties stipulated to the facts of the accident in question, summarized as follows: On January 26, 1978, at or about 12:OO p.m. (noon), Claimant was driving his then undamaged 1973 Ford Torino southbound on Route 88 near Manlius, Illinois. At a point approximately three miles north of Interstate 80, Claimant’s vehicle became stuck in a large snowdrift in the southbound lane of traffic. Unable to move the car, Claimant left it in the southbound lane of traffic stuck in the snowdrift, began hitchhiking, and obtained a ride to a hotel three miles away.

At approximately 11:15 p.m. on January 27, 1978, . almost 36 hours after Claimant abandoned his vehicle, a State snowplow, being operated by State employee Gail Glenn in the scope of his employment, was plowing snow off Route 88’s north and southbound lanes, in the area north of Interstate 80.

After making a path through the northbound lane of Route 88, Glenn turned the plow around and made a [*290] path through the southbound lane. Shortly thereafter, Mr. Dick Bussan, supervisor of operations, drove through the area, discovered Claimant’s vehicle buried in the snow, called a tow truck, and discovered that the vehicle was damaged, apparently struck by the State snowplow.

The particular snowdrift that Mr. Glenn was trying to remove from Route 88 at the time of the accident was approximately 350 feet in length. It covered both lanes of traffic and was approximately 10 feet in height. It was beneath this drift that Claimant’s abandoned vehicle was completely buried. Neither the vehicle or any part of it was visible to Mr. Glenn or his passenger, State employee Jim Norway, prior to the accident.

The parties have waived briefs and have agreed that the case should be decided on the foregoing stipulated facts presented at the hearing on May 12, 1981.

It is clear that the Respondent had a perfect right to be operating its snowplow on Route 88 at the time of the accident. In fact, the act of removing snow from State highways is surely in furtherance of the legal duty imposed upon the State to keep highways reasonably safe for use as highways. Reidy v. State of Illinois,31 Ill.

Ct. C1. 16.

Operators of State vehicles, however, are charged with the same duty of care as other drivers upon the highways and are liable for damages proximately caused by their negligent acts. (Santiago v . State, 31 Ill. Ct. C1. 332.) The question in the case at bar is whether Respondent’s employee, Mr. Glenn, was in the exercise of ordinary care before and at the time his plow struck Claimant’s vehicle.

It is apparent from the stipulated facts, that at the time of the collision, Claimant’s vehicle was completely [*291] buried in a snowdrift, directly in the southbound lane of traffic. The vehicle was wholly concealed from the view of Mr. Glenn as he was attempting to clear Route 88 for traffic. In light of these facts, it is the finding and the opinion of the undersigned commissioner that a finding of negligence against Respondent’s employee, Mr. Glenn, is not warranted.

The accident in question was a rear-end collision, Mr. Glenn being the rear driver. While it was usually thought that rear drivers were guilty of negligence as a matter of law as to their collision with front vehicles, that is no longer the law. (Glenn u. Mosley (1976), 39 Ill. App. 3d 172,350 N.E.2d 219.) The present view as to rear-end collisions was stated in Burgdorff u. Znternational Business Machines Corporation (1979), 74 Ill. App. 3d 158, 163, 392 N.E.2d 183: “A rear-end collision does not automatically create an inference as a matter of law that the driver of the rear car was negligent, or that he was following too closely or driving too fast for conditions. It is the responsibility of the trier of fact to determine whether the rear driver, in such accident, was acting reasonably under the circumstances, or that the accident was unavoidable.”

A driver’s duty of reasonable care, or course, includes keeping a proper lookout for other vehicles and keeping his vehicle under such control as to avoid collisions with other vehicles rightfully on the highway. It cannot be said, however, that a driver, such as Mr. Glenn in the instant case, has acted unreasonably where he has collided with a concealed vehicle located directly in the lane of traffic. A driver’s duty to keep a proper lookout means that he is bound to see that which he clearly should see and see nothing more. (Payne u. Kingsley (1965), 59 111.

App. 2d 245, 207 N.E.2d 177.) A driver is also bound to drive at such a speed and keep his vehicle under such control that it can be safely stopped within the distance that objects can be seen ahead. (Glenn u. Mosley (1976), [*292] 39 Ill. App. 3d 172, 350 N.E.2d 219.) In short, it is not unreasonable in situations such as the one at bar, to fail to see that which is not visible. See Yanuskis v. State, 31 Ill.

Ct. C1.377, and Kent 0.Knox Motor Service, Znc. (1981), 95 Ill. App. 3d 223,419 N.E.2d 1253.

The Court hereby finds that Respondent’s employee, Mr. Glenn, was not negligent. To hold that he was would place upon the State the impractical burden of searching through massive snow drifts for abandoned vehicles concealed on the highway’s lane of travel prior to snow removal operations.

In light of the foregoing, it is not necessary to discuss the issue of Claimant’s own negligence, and its possible effect on a question of damages.

It is hereby ordered that Mr. Hewitt’s claim against the State be, and hereby is, denied.