Sidney and Brenda Tolbert v. State of Illinois

OPINION

PATCHETT, J.

On the morning of May 15, 1996, the claimant, Sidney Tolbert, was driving south on the Dan Ryan Expressway (Interstate 94) in Cook County, Illinois on his way to work at Curtis Elementary School. He worked as a service engineer for the Trane Company and was visiting various elementary schools to monitor work being performed. As he passed under the 75th Street overpass a two foot by four foot piece of concrete fell from the underside of the bridge/overpass, striking the hood of his vehicle and through the windshield. Mr. Tolbert was hit in the face with glass and debris and was bleeding from his lip and teeth. He pulled the car over and called on his cell phone to report the occurrence. An ambulance took him to Roseland Community Hospital where doctors removed shards of glass from his body, x-rayed him and sutured his lip.

[*200] Later that same day he was treated by another oral surgeon or dentist who removed four bottom teeth and snapped his top teeth back into place. Subsequently another dentist performed various procedures including a root canal and opines that Mr. Tolbert will need implants to replace the extracted teeth. Sidney and his wife, Brenda Tolbert, through their attorneys, CORBOY & DEMETRIO, filed a Complaint on September 12, 1996 for $100,000.00 for personal and pecuniary injuries including loss of services and consortium. Brenda Tolbert subsequently withdrew her sections of the Complaint.

Facts

A hearing was held before Commissioner Michael E. Fryzel on November 14, 2000. Tolbert, who was represented by attorney Daniel Kotin of the firm of Corboy and Demetrio, P.C., testified to the facts given above. Brenda Tolbert testified with regard to her husband’s pain and suffering.

James Ross Tippett, North Bridge Engineer for the Illinois Department of Transportation, testified regarding various inspection reports for the 75th Street overpass. The last inspection before the May 5, 1996 incident was on December 27, 1994. Bridges are inspected every two years per IDOT and National Bridge Inspection Standards. He did not see anything that would have been hazardous or an indicator of failing or falling concrete. He was not aware of any reports of falling concrete prior to the occurrence which is the basis of this suit. Claimant’s attorney testified that after this incident an inspection was done, and the bridge was given an inspection rating of 4. No further evidence was offered to connect the IDOT rating with purported negligence or imputed knowledge of a dangerous condition.

Legal Analysis

This case essentially turns on the issue of constructive notice. If there were facts known by the state or which should have been known by the state which would give it notice of the defective condition of the bridge in question, then the state could be liable for the concrete falling onto the highway. In a similar case, Schillaci v. State, opinion filed March 3, 2000, the Court stated as follows:

The issue of notice is the crucial aspect of our deliberations as even if a hazardous condition exists, the State must be given actual or constructive notice of same and reasonable opportunity to remove or remedy the hazard. Ott v. State, 47 Ill. Ct. Cl. 231 (1994); Scroggins v. State, 43 Ill. Ct. Cl. 225 (1991).

As held in Stills v. State, 41 Ill. Ct. Cl. 60, 62 (1989), each case involving constructive notice must be decided upon its own particular facts. The Court’s holding in Scroggins v. State, 43 Ill. Ct. Cl. 225, 227-228 (1991) set forth the applicable factors to be considered. “Constructive notice of a highway defect is imputed to the State only where a condition by its evidence nature, duration and potential for harm should have necessarily come to the attention of the State, so that the State should have made repairs.”

Claimant did not introduce evidence of engineering practice or procedure employed by similar transportation agencies which might prove IDOT’s practices to [*201] be inadequate or unprofessional by comparison to established professional standards or regulations….

Respondent’s evidence indicated standard IDOT policy and procedures were followed.

We have no direct evidence as to the cause of the falling concrete, what action might have prevented it from falling, and the economic feasibility of preventative measures. The Court has relied upon these factors in cases involving design, construction and maintenance of highways. See Hodge v. State, 35 Ill. Ct. Cl. 51 (1981); Pro v. State, 47 Ill. Ct. Cl. 137 (1994); Feijes v. State, 46 Ill. Ct. Cl. 109 (1994).

Herein Claimant has ultimately failed to prove that Respondent, even if constructive notice were imputed, acted unreasonably in inspecting, maintaining or providing warnings to Claimant. The record indicates the State was diligent in its efforts in the absence of proof to the contrary.

In another case, Hurdle v. State, also filed March 3, 2000 the Court stated as follows:

Claimant herein has failed to prove that IDOT was negligent in maintaining the roadway in question by offering evidence of failure to follow applicable rules, regulations or standards or failure to remediate a known condition constituting a hazard to reasonable drivers.

The preponderance of the evidence of record indicates that IDOT inspected and assessed the bridge conditions in accordance with applicable standards to facilitate prioritization, budgeting and scheduling of future repairs or construction in the District. No notice may reasonably be imputed of a hazardous condition without additional proofs in this instance.

In the case of Lara v. State filed November 1, 2000 the Court did find liability on the part of the state based on constructive notice of the defective condition of the bridge in question. However, in the Lara case, after a bridge inspection indicated a deteriorating condition, the bridge was scaled, to remove loose concrete, and shielding was put in place over some of the lanes. The concrete fell from an area of the bridge which has not been shielded. However, the very act of shielding the bridge, and scaling the bridge, indicated that the state had constructive notice of the deteriorating condition. No such evidence was before the Court in the present case.

For the reasons stated herein, the claimant has failed to bear its burden of proof as to constructive notice, and this claim is denied.