Acuity Insurance Company v. Illinois Department of Transportation et al.

ORDER

JANN, J.

THIS MATTER comes before the Court on the Complaint of Acuity Insurance Company, as subrogee of Robert Biederer, Claimant, against State of Illinois, Illinois Department of Transportation, Respondent. Claimant seeks damages in subrogation arising from a vehicle accident that occurred on August [*313] 6, 2002 in McHenry, Illinois for property damage and medical payments in the amount of $9,154.62. Costs of suit were claimed and are hereby denied.

The facts are as follows as established by the record after hearing:

On August 6, 2002 an IDOT crew of highway maintainers was working on a roadway line striping operation at or near Route 120 and Chapel Hill Road in McHenry, Illinois. The purpose of each operation is to paint white or yellow lines on the roadway. The first vehicle in the operation is the “striper” truck, which is lime green in color, with logos on the sides, and has two 300-500 gallon tanks for paint and an air compressor on the back. The striper has a twoseater truck cab. There are flashing yellow lights on the top of the truck, along the back of the cab, and an arrow-board, which directs traffic to the left or right as appropriate.

The second vehicle in the painting caravan is a “setter”, a small green pick up truck, with identifying State of Illinois logos on the sides. The setter has lights on top and at the back of the cab and travels approximately 20-40 feet behind the “striper”. The “setter” has an open cab with a back seat on both sides for an IDOT employee to place orange cones on the roadway to indicate wet paint as the work proceeds.

The third and final vehicle in the painting crew caravan is a truck with a truck-mounted “attenuator” (TMA) and an arrow-board with lights on top and rear portions of the vehicle. The TMA is an 8-10 foot long yellow crash barrier intended to receive and reduce the impact of a rear collision. The TMA truck travels approximately 100-150 feet behind the setter truck.

The record indicates that on August 6, 2002, assignment for the work crew was to stripe double yellow lines on Route 120 in both the east and west directions. At the intersection of Route 120 and Chapel Hill Road there are two eastbound lanes and two westbound lanes and a left turn lane.

Witnesses testified as follows:

Robert Biederer, the insured, testified that he was driving his dump truck eastbound on Route 120 approaching Chapel Hill Road at approximately 9:30 a.m. He observed a red pick-up truck in front of him in the roadway. As Biederer approached the intersection he observed the IDOT crew striping the left hand lane along the median heading eastbound on Route 120. He saw the trucks start to enter the left turn lane in a caravan style. He testified that he then observed the IDOT trucks move into the eastbound lane without signaling, and it appeared that they were moving quickly into the right hand lane. Biederer observed the red pick-up stop quickly in front of him. He attempted, but was unable to stop, and struck the red pick-up from behind.

Pilar Villa Sanchez was the driver of the red pick-up truck ahead of Mr. Biederer. Sanchez testified that she was traveling eastbound on Route 120 and approaching Chapel Hill Road when she observed the truck with the arrow board directing traffic to the right lane. She stated that she was approaching the intersection and traveling in the right lane at approximately 40-45 miles per hour when the IDOT truck moved suddenly and unexpectedly into the right lane in front of her vehicle causing her to apply her brakes very hard. Sanchez [*314] observed a large truck behind her attempt to stop, but it struck her from the rear resulting in vehicle damage to the rear of her truck.

Brenda Besieche, Sanchez’s daughter, and a passenger in the Sanchez vehicle, testified that the IDOT truck moved into their lane of travel at about an 80-90 degree angle causing her mother’s path of travel to be disrupted and requiring her to slam on the brakes.

Barry Snyder, 29 year IDOT employee, was operating the striping vehicle at the time of the accident. He confirmed that IDOT vehicles are required to comply with the rules of the road. Snyder testified that he was unaware of the accident at the time.

Jay Oberg, IDOT employee, was the “back person” on the paint striper, applying paint to the roadway on the date of the incident. Oberg testified that he did not observe anything unusual. He did not observe honking, screeching tires, or emergency vehicles. He was completely unaware of the accident.

Purifino Jimenez, IDOT employee, was assigned to the setter truck laying cones at the time of the accident. Jimenez testified that the setter vehicle was stopped at the time he heard the impact. Jimienez remembered someone in the line-striping crew called the IDOT communications center to report the accident, but no IDOT vehicles were involved, and he did not observe any emergency vehicle respond to the scene.

The law is well established that the State is not an insurer for all accidents that occur on its highways. In order to sustain a claim of negligence, Claimant must establish by a preponderance of the evidence that Respondent owed a duty of care, a breach of that duty occurred, and that the breach was the proximate cause of the injury claimed. DeWalt v. State of Illinois, 46 Ill.Ct.Cl. 293, 295 (1994).

Clearly, the State has a duty to operate its vehicles in a safe and reasonable manner in compliance with all the rules of the road. The question before the Court is whether Respondent breached its duty of reasonable care during its paint striping operation on the facts and proofs presented.

In this case, the striping operation was proceeding according to proper procedure. Motorists were provided advance warning by the lighted vehicles and the arrow board. As the striper approached the intersection it proceeded into the left turn lane. The setter proceeded into the left turn lane and the TMA remained in the left lane. At the time of the impact the striper and the setter were stopped in the left turn lane and the TMA was in the left lane. The Sanchez vehicle was in the right lane. It is not reasonable to assume that the large striper vehicle moved from a stopped position quickly and unexpectedly from the left hand turn lane through the left lane and into the right hand lane, and then back into the left hand lane to proceed with the striping process. Claimant failed to present any credible evidence to establish a deviation from IDOT policy and procedure consistent with the insured’s testimony.

The lack of probative physical evidence reasonably inferred to be extent in such a fact scenario as claimed tends to diminish the credibility of the accounts of the drivers of the vehicles which collided. Wet paint tends to spatter [*315] when a very large tank is quickly moved either horizontally or from front to back as alleged herein, at a severe angle, and a rapid move from the left turn lane (1st of 3 lanes) to the third eastbound lane of travel.

The record suggests and supports a conclusion that the State vehicles were neither negligent in performing their duties nor the proximate cause of the collision causing damage to Claimant’s insured. Claimant has failed to sustain its burden of proof for a claim sounding in negligence.

WHEREFORE, this claim is hereby denied and dismissed with prejudice on the merits.