Randy David Enyart v. State of Illinois

ORDER

JANN, J.

This is a claim for highway negligence, brought in the Illinois Court of Claims, pursuant to 750 ILCS 505/8. Claimant filed his complaint on February 16, 1998. Claimant is alleging permanent injuries to his back and legs resulting from a collision when his semi-tractor-trailer oil tanker struck a pile of rock salt deposited on the road by a state employee. Claimant is seeking $100,000.00 in damages for personal injuries and lost wages sustained as a result of the State’s negligence.

[*203] A hearing was held before the Court of Claims Commissioner on January 14, 2003. Claimant, Steven Kincaid, and Kimberly Woodroe testified for Claimant at the hearing. Respondent presented no witnesses. Additionally, the depositions of Dr. Alan L. Froehling and Dr. Judith Lee-Sigler were admitted into evidence in lieu of personal testimony over Respondent’s objections. Claimant filed a brief. Respondent’s brief was filed. Claimant filed a Reply. Respondent filed a Motion to Strike the Reply, which was denied. The Court has duly noted Respondent’s arguments, authorities, and objections in consideration of this cause of action.

Facts

On February 16, 1996, at approximately 5:55 a.m., Claimant was driving a semi tractor-oil tanker in the course of his employment for an oil company, Bi-Petro. Mr. Enyart was traveling with an empty tanker trailer, southbound on Illinois Highway 45 in Wayne County, Illinois near the Rinard Crossing and struck a 10” to 12” high pile of rock salt, which spanned all or most of the southbound lane of the two-lane roadway. Claimant was unable to avoid the salt by moving to the northbound lane because he observed an oncoming vehicle. He attempted to reduce his speed but was fearful of attempting a violent stop given the slippery road conditions. It was snowing and dark at the time of Claimant’s accident. Claimant stated his headlights did not allow him to observe the salt until he was quite near it and that a hill had further impeded his visibility.

Claimant stated his vehicle struck the salt, rose from the roadway and violently jolted his body within the trailer cab. Claimant stated he then swerved into the northbound lane in order to regain control of his vehicle, which was at estimated speed of 30-35 m.p.h. He was wearing a lap-belt but did not have shoulder restraints in the cab. He subsequently felt pain in his lower back and neck and sought treatment from a chiropractor and numerous other medical practitioners beginning about one month after his alleged injury. No property damage is noted of record and no police report was made.

Claimant stated he attempted to stop an orange State snowplow which was spreading salt and had its flashing safety lights activated. The State vehicle was about ½ mile south of Claimant in the southbound lane. Claimant observed the plow prior to striking the salt. He attempted to signal the salt truck driver to stop, but was unsuccessful. Claimant observed the State snowplow turning and crossing to salt and plow the northbound lanes of the highway approximately 2 miles from the pile of salt.

Claimant proceeded to continue southbound and drove to a gas station and convenience market, which had just opened at 6 a.m. Claimant’s witness, Kim Woodroe, was the manager of the station who opened the facility on February 16, 1996. Ms. Woodroe confirmed that a pile of “chat” or salt was present at about 5:45 a.m. when she was driving to work in the same southbound lane of Illinois 45.

Ms. Woodroe’s recollection of the events in question was poor on the date of hearing. Clearly, the passage of nearly seven years time makes her honest lack of recall very understandable and credible.

Ms. Woodroe could not confirm that she observed Claimant’s vehicle behind her on her route to work. She did not recall having seen a State truck spreading salt and plowing. Ms. Woodroe believed she was driving a ½ ton to ¾ ton pickup equipped with four-wheel drive and did recall attempting to avoid striking the material in the [*204] southbound lane by moving into the northerly lane. Ms Woodroe struck the edge of the material and sustained no injury or property damage. She proceeded to her employment, some four miles and saw no State truck or claimant’s vehicle during her travel. She recalled Claimant arriving at her store just after she opened at 6:00 a.m.

Ms. Woodroe stated the pile of material was significant enough to cause her to try to avoid it but that she did not believe it would have damaged her vehicle’s bumper.

Mr. Steven Kincaid testified that he was traveling on southbound Illinois 45 between 6 a.m. and 7 a.m. on February 13, 1998. He testified that he also observed no other vehicles in either lane of Illinois 45 during his travels before and after striking the salt. Mr. Kincaid did state that he had seen a southbound orange snowplow at nearly the exact spot Claimant did and also tried to flag it down to advise of the salt pile. This is odd, given Claimant’s testimony that the truck had already turned and headed into the northbound lane before Claimant could catch it.

Neither Ms. Woodroe nor Mr. Kincaid recalled contacting any authorities about the salt. Neither Ms. Woodroe nor Mr. Kincaid confirmed Claimant’s description of a hill as a relevant element of Claimant’s efforts to see or avoid the perceived impediment to travel. No testimony is of record as to either witness presented at hearing having knowledge of damage to Claimant’s vehicle or observation of injury resulting from Claimant’s accident. There is no testimony as to the possible weight or area of the salt deposit.

Respondent presented no witnesses or evidence to rebut the presence of snowplows and salting operations on a State highway on the date and time alleged. There is no evidence of other governmental agencies performing similar operations at the relevant time and location.

Claimant stated he had reported possible damage to his employer’s vehicle. No substantiation of any damage appears of record. There is no record of inspection by the owner of the vehicle.

Claimant’s testimony and evidence as to medical records, was contested by Respondent, as to credibility, consistency, and proximate causation of the claimed injuries and damages.

Claimant’s testimony as to wage loss, liens for Worker’s Compensation and other State agencies is contested. It appears from the hearing transcript and exhibits of record that there are several liens or set-offs claimed for Worker’s Compensation disability payments a lump sum settlement, and other unspecified medical payments by insurers or agencies which are alleged to total $64,000.00 as of the hearing date. Respondent asserts Claimant may receive a maximum personal award of $36,000.00. Claimant has not rebutted this proposition.

The Law

The parties have argued and briefed the negligence standard applicable to this cause and presented authority for their respective theories.

The law is well settled in typical cases alleging the State’s negligence for highway defects. The elements are set forth in Bowley v. State (1999), 52 Ill.Ct.Cl.18, and Berg v. Department of Transportation (1999), 52 Ill.Ct.Cl. 246, and Dixon v. State (1998) 51 Ill.Ct.Cl. 10. Claimant must prove actual or constructive notice of the claimed defect by a preponderance of the evidence.

[*205] Herein, Claimant argues that an exception to the notice rule is applicable via the doctrine of res ipsa loquitur. Claimant alleges that the facts of this cause lead to a conclusion that the State was charged with exclusive care and control of the roadway and the circumstantial evidence supports a finding of fact creating an inference or rebuttable presumption of negligence by the State.

The Court has recognized the doctrine as follows:

“When an injury is caused by an

instrumentality under the exclusive

control of the party charged with

negligence, and is such as would not

ordinarily happen if the party having

control of the instrumentality had

used proper care, an inference or

presumption of negligence arises. The

burden then rests upon Respondent to

rebut the presumption of negligence

arising from the facts of the case.”

Weigers v. State (1988), 40 Ill.Ct.Cl.

88,91.

This court has applied the doctrine in such cases as brake failure on a State vehicle, as in the Weigers case, and the collapse of a rotten tree, as in Metzler v. State (1971), 27 Ill.Ct.Cl. 207, and recently in a strikingly similar case, Durbin v. State (2000), 52 Ill.Ct.Cl. 236.

We believe the Court’s review of published res ipsa cases leads to a conclusion that the doctrine is to be applied only when:

(1) Respondent fails to present evidence sufficient to rebut direct or

circumstantial evidence of its exclusive care and control of an

instrumentality, and/or

(2) Respondent fails to produce proofs to support an allegation of the

State’s exercise of proper care under the facts alleged/of record.

The Weigers opinion (at 90-92) took great pains to set forth the extraordinary circumstances under which the Court had previously applied the doctrine. In Miley v. State (1997), 50 Ill.Ct.Cl., 41,47, the Court noted that it adopted the Weigers analysis and first applied the test of exclusive control to a highway negligence case arguing res ipsa. Miley, Id. at 47, rejected the doctrine due to the clear opportunity for intervening parties to have caused harm under the facts as alleged. The court’s analysis in Miley, is consistent with the long held precedent that the State is not an insurer of its highways.

We find that Claimant has presented sufficient evidence to support the application of res ipsa in this cause and Respondent has failed to present evidence of the exercise of proper care owed users of State highway 45 on February 16, 1996 at or about 6 a.m. This finding is by the narrowest of margins and is a finding only as to [*206] the existence of a pile of salt observed by three witnesses and two sworn statements of a State truck in the southbound lane. Claimant is not relieved of the burden of proving that his damages were proximately caused by Respondent’s negligence and must prove the damages claimed by a preponderance of the evidence. Durbin v. State, Id., at 245, and Jones v. State (1997), 50 Ill.Ct.Cl. 5,11.

We first address the issue of proximate cause of Claimant’s injuries on the basis of the facts of the collision. Claimant has testified to a much more dramatic hill existing a short distance north of the salt than his witnesses who were also frequent users of this portion of Route 45. Both Mr. Kincaid and Claimant testified to attempting to stop the State truck in the southbound lane at nearly the same distance from the salt pile. Claimant did not see Mr. Kincaid’s vehicle yet saw Ms. Woodroe’s vehicle.

Ms. Woodroe was allegedly following “just behind” the salt truck in a red pick-up truck and eventually passed the salt truck. Claimant stated he learned on a later date that Mr. Kincaid’s vehicle was the vehicle he had observed traveling some distance behind him just before Claimant’s collision.

We believe it safe to assume that a semi-tractor pulling an empty oil tanker is a considerably larger and heavier vehicle than a Dodge mini-van or a pick-up truck. We also believe a vehicle the size of Claimant’s would be hard to ignore had it met with a violent collision as described and swerved into the opposing lane. The persons Claimant claims he saw on the same roadway under inclement conditions are the same persons who testified that they did not observe Claimant.

Ms. Woodroe recalled Claimant coming into her store around 6 a.m. but did not recall seeing him after her own vehicle struck the salt. She did not recall passing a salt truck as Claimant has alleged. Neither Ms. Woodroe nor Mr. Kincaid described oncoming vehicles or particularly violent impact and trauma after striking part of the pile. Granted, Claimant alleged he struck the middle of the pile, but testified he had a much larger vehicle and testified he was at lower speed than Mr. Kincaid or Ms. Woodroe. Neither Ms. Woodroe, nor Mr. Kincaid suffered injury of any kind, or property damage after impact with the salt. Claimant testified he thought he had sustained damage to his tanker truck and requested an inspection. There is no proof of the inspection or damage by Bi-Petro of record.

Claimant testified to neck and back pain immediately after his collision. He continued to perform his heavy labors an driving duties for Bi-Petrol, which he infers made his pain much worse for the 3 weeks prior to seeking treatment.

Claimant did not file a police report of the allegedly serious incident and dangerous hazard. He states he attempted to notify several county officials after the incident. The first proof of notice to IDOT is in April, 1996.

Claimant’s testimony asserts that he worked full time. It is inferred from the testimony at hearing, that full time means monthly or weekly hours, but Claimant did not have a set work schedule. He worked “as-needed” and was paid by Bi-Petrol on a “per-load” basis. The record is unclear as to whether Claimant continued his work on February 16, 1996 and what lost time he actually claims as directly resulting from his accident.

Claimant had another industrial injury to his upper back and neck in later 1995 and filed a Worker’s Compensation claim. He stated that he recalled only missing a [*207] few days of work for that injury. He also had a prior low back injury and a diagnosis of congenital spinal diseases some years prior to February, 1996. The record indicates that Claimant did not disclose the prior injuries or provide records of prior treatment to most physicians who treated the injuries allegedly arising from the collision on February 16, 1996. (We note that the prior injuries to his upper back and congenital anomalies are relevant only to credibility.)

Claimant specifically denied prior low back injury and the pains he subsequently suffered in his legs after his 1996 collision. He further denied pain or continuing treatment just prior to the claimed injury. Claimant’s denials of recent injury and treatment were directly refuted by his own exhibits. The medical evidence of record is not conclusive as to the cause of Claimant’s pain. The preponderance of the evidence indicates Claimant’s primary complaints were “idiopathic” or subjective and there were few objective findings to explain the cause of pain from orthopedic, neurological or muscular examinations and use of medical imaging. Many of Claimant’s total medical bills are for “working-hardening” and physical therapy, or pain management treatments.

The strenuous demands of Claimant’s work at Bi-Petro and his prior employment positions involving lifting and heavy labor provide opportunity for injuries similar to “chronic low back strain”. Claimant’s failure to seek immediate diagnosis and treatment further complicates his case as the diagnostic assessment and treatment were made after Claimant’s injury had worsened per his testimony. It is reasonable to assume that Claimant’s failure to seek treatment for one month while continuing strenuous work and driving for many hours in a truck he described as “rough riding”, would aggravate a “low back” injury. There are notations in several of the medical records of Claimant’s discomfort in sitting or riding for periods of more than 15-30 minutes. Paradoxically, Claimant introduced a mileage chart for his trips to obtain treatment as part of his claims for damages. It is clear that Claimant traveled distances of 20 to 140 miles one-way for frequent trips during 1996-99, totaling some 15,414 miles. We also note that Claimant is presently employed as a truck driver with slightly less strenuous duties than his work for Bi-Petro in 1996. His testimony indicates his symptoms are not dramatically changed from the date of his injury but he has greater pain management.

The medical opinions Claimant relies upon as conclusive are not persuasive. As Respondent has argued, the persons making the opinions relied upon incomplete records and Claimant’s subjective recitation to arrive at their opinions. Many were made many months or years after the claimed injury. Most are explicitly equivocal as to proximate cause beyond a finding that a similar type of injury is consistent with a collision as was described by Claimant.

We conclude that the preponderance of the evidence supports a finding that Claimant suffered some possible injury or aggravation of a pre-existing injury on February 16, 1996. However, it also appears that Claimant’s stated injuries are disproportionate to the accident alleged. Claimant’s treating physician, Dr. Reynolds, who treated him beginning in March, 1996, notes that Claimant was to return to work on May 10, 1996. Claimant was greatly concerned about this and his complaints increased without consistent objective findings of disability or causation.

Claimant bears the burden of proving the injuries claimed were proximately caused by Respondent’s negligence. Jones v. State (1997) 50 Ill.Ct.Cl. 5. Claimant [*208] must also prove by a preponderance of the evidence, the nature and extent of his injury attributable to the claimed negligence. Herein, the testimony is both conflicted and inconclusive as to the connection to the claimed collision. Claimant’s failure to seek timely treatment, the failure to disclose prior low back injury to treating physicians, and the general inconsistency found throughout the record as to relevant facts mitigate against a finding of proximate cause of injury. Claimant’s testimony as to permanent injury and disability is not persuasive given the expert testimony relied upon. He was found free of restriction in the last medical report which also noted he had returned to driving a truck and was tolerating his duties well.

Claimant’s testimony as to lost wages is not found persuasive or specific. It appears that contrary to his claim, Claimant resigned or abandoned his position at BiPetro, by his own testimony and his exhibits. It also appears that Claimant had occasional work for unspecified amounts during the period of his claimed disability. He also took classes for two years for other training but found the work too stressful for unspecified reasons.

Based upon the record as a whole, we find Claimant has failed to meet his burden of proof as to the proximate cause of his claimed injuries and proof of damages.

This claim is hereby denied and dismissed with prejudice.