Kerry and Theodore Vintila v. Illinois Department of Transportation

ORDER

JANN, J.

This matter comes before the Court on the Complaints of Kerry and Theodore Vintila, Claimants, against State of Illinois, Department of Transportation, Respondent, alleging Respondent’s negligence and liability for resulting personal injury and seeking damages in the amount of $1,246,204.45. Hearing on this claim was held before a Commissioner of the Court and the parties have had full opportunity to present their respective positions.

FACTS

The record suggests the following, and there is not evidence of dispute of the pertinent chain of events giving rise to Claimant’s injuries.

On May 18, 2001 at approximately 9:00 a.m., Kerry Vintila was driving home from work in her 1993 Plymouth Sundance, eastbound on the Kennedy expressway between Cumberland and Nagle in the center lane at approximately 50 mph. in Chicago, Illinois. She observed an Illinois Department of Transportation (IDOT) worker, mowing the lawn at the side of [*233] the highway. IDOT employee Francisco Mendez’s mower slid down the hill he was mowing adjacent to the highway, and struck a light pole which was caused to fall and strike the hood of Claimant’s vehicle.

Claimant testified she was caused to jerk and swerve from the center lane to the median on the left, and thence back across the shoulder on the right of the roadway where her vehicle came to rest. Claimant stated she kicked open the driver’s side door and exited the vehicle after her vehicle came to rest postimpact by the light standard. Claimant testified that the top half of the light pole was blocking all four lanes of traffic on the roadway.

Claimant was transported to Resurrection Hospital. She reported pain between her neck and shoulder blades and down the left side of her spine. Various diagnostic tests and x-rays were performed at the hospital. Claimant was given a neck brace and released from the hospital approximately 3 hours after her initial evaluation by medical personnel at the hospital.

Claimant began treatment with Dr. Zato, M.D., D.O. about 3-4 days after the accident and continued treatment for approximately one year. Pain medication, cortisone shots and manipulations were administered to relieve pain in the back right side of the upper neck at the base of the skull.

Claimant stated the pain continued, and she sought and began further treatment with Dr. Luciani, at St. Anthony’s Medical Center, where a rigorous physical therapy program was initiated. Claimant saw several other doctors for diagnostic purposes and then pursued treatment with Doctors Plasteres and Kim at the Rehabilitation Institute of Chicago, and later at the Health Motivation Center for Continuing Physical Therapy. Claimant testified that she continues to suffer from pain during her daily routine, including walking or driving for extended periods, and she suffers migraine headaches she attributes to the injury, approximately every two months. Claimant had a second auto accident on January 5, 2002 where medical reports at the Emergency Room of St. Anthony’s Medical Center indicate Claimant stated she was jolted in the passenger seat, and that the driver’s airbag had deployed.

Claimant testified that many of the activities she previously enjoyed have been limited as a result of her purported injury, including biking, rappelling, swimming and bowling. Her household work was restricted and her marital relationship with her husband became very strained after the accident. Claimant stated she was unable to have marital relations with her husband for more than six months as a result of the physical, financial and emotional consequences of the accident. Claimant became pregnant with her fourth child six months after the accident and a healthy son was born to the Vintilas in 2002.

[*234] Claimant stated at hearing that she is a very fit person and her job as a ground agent at National Airlines was physically demanding. She lifted baggage and bent to print tickets for customers of the airline at Midway Airport, Chicago, Illinois.

Claimant’s husband, Theodore Vintila, testified that his marriage was strained as a result of the accident, including lack of intimacy and family and household participation by his wife. Mr. Vintila testified that the marriage was “mending”, as of the hearing date five years after the accident and more than three years after the birth of his fourth child.

One of Claimant’s treating physicians, Dr. Brent Jacobus, testified by evidence deposition that his “expert” opinions were based on a reasonable degree of medical certainty based on the history Claimant provided when she came to his clinic. His opinions were in relevant part that Claimant’s symptoms, including neck pain, shoulder pain and headaches, were related to the subject automobile accident based upon the medical history Claimant provided to him, and his prior experience with “whiplash injuries” like the one Claimant had described. The doctor stated Claimant attributed her complaints to the accident of May, 2001.

In Dr. Jacobus’ opinion adduced at the evidence deposition, Claimant might require future, ongoing treatment for neck pain, shoulder pain and headaches. He opined that the duration of future treatment could be indefinite and that the costs of future treatment would not be consistent with prior costs and expenses, as they are not predictable in her case. Claimant erred in stating that the doctor had affirmatively stated that prior costs and frequency of care would be roughly the same as in the prior five years, despite reading the evidence deposition into the record at hearing at pages 94-97 of the hearing transcript on May 31, 2006.

Dr. Brent Jacobus indicated he had given Claimant Zyrtec to help with her pain. Zyrtec is an allergy medication widely advertised on television and radio, and Claimant’s records indicate she had sinus complaints, a bladder infection, and various other medical complaints included in this record which have no proved relation to the complaints arising from the subject accident. However, the expert concluded that the injury is permanent in nature, as degeneration of discs tends to be a progressive process, and will not resolve itself.

There is evidence that Claimant’s condition had not worsened in 2004, and no objective findings were discovered for complaints at that time. It is also noted that Claimant testified that her injury was primarily an issue of muscle and connective tissue damage, or soft tissue injuries which her records indicated had [*235] been resolved. There are numerous issues not addressed or proved as relating to Claimant’s purported injury in the record. Her own testimony and the Respondent’s evidence and testimony adduced at hearing tend to cast doubt on many items of damages now claimed. Then record is replete with medical records admitted by the parties which are not reconciled with the testimony of Claimants or their expert on review by a reasonable layman.

Claimant’s medical expenses to date of trial as presented, totaled $32,920.45, since May 18, 2001.Claimant’s counsel argued that based on her past medical expenses in a five-year period, her future medical expenses should be estimated at $296,444.00. We reject this proposition as cited at page 96, lines 12-15 of the hearing transcript.

Claimant’s medical expert did not specify any necessity of ongoing care on a yearly basis per his evidence deposition. In fact, Dr. Brent Jacobus’ medical report of radiological studies to Dr. Brechner, dated March 30, 2005, indicates very little change since a prior study dated June 25, 2004. Dr. Jacobus describes Claimant’s soft tissues as normal and her cervical spine and vertebral bodies and intervertebral disc spacing as well maintained, aligned and negative for changes or abnormality and the soft tissues of both the cervical and thoracic spine are unremarkable. It appears there may have been some confusion as to a second Dr.Jacobus, a chiropractor, who treated Claimant through December, 2005 per her medical exhibits of record, and the trial transcript.

Claimant testified that she had been working as a National Airlines ground operations agent at the time of the accident, approximately 40 hours per week at $8.00 per hour. She stated she was unable to return to work for 52 weeks for total lost wages of $16,640.00. This is a physical job per her testimony. No set offs of disability, worker’s compensation, or insurance proceeds are noted in the record forwarded for our review. Claimant was deemed able to return to part time work during her pregnancy, as she noted on her intake sheet for a medical consultation. She further described herself as a homemaker, having had prior sinus surgery for polyps in 2000, about a year before the subject accident, and made no mention of a second auto accident in January, 2002 on the form. Hence, we cannot substantiate the entire claim for lost time on the record presented given her testimony at hearing as to her fitness and taking only three weeks off for the birth of her son in November, 2002.

Claimant further urges the Court to award $300,000.00 for normal loss of life; $300,000.00 for past pain and suffering; and $300,000.00 for future pain and suffering for a total of $1,246,204.00 for Kerry Vintila.

[*236] LAW

It is well established law that the State is not the insurer of its highways. However, the State owes a duty of reasonable care to the users of its roadways. Kuhn v. State of Illinois (1993), 45Ill.Ct.Cl.33, 39. The State is liable when one of its employees, acting within the scope of employment, breaches that standard. State Farm v. State of Illinois (1992) 41Ill.Ct.Cl.449. Claimant must prove by a preponderance of the evidence that the State was negligent and that the alleged negligence was the proximate cause of Claimant’s damages. Jones v. State of Illinois (1993) 45Ill.Ct.Cl.90,100. The Court has defined proximate cause as any cause which in natural or probable sequence produced the injury. Slubbier v. State of Illinois (1994) 46Ill.Ct.Cl.102, 105.

In this case, it is unrefuted that Claimant was driving lawfully on a state highway when an IDOT employee operating a mower on the right of-way adjacent to the roadway, struck a pole which fell on Claimant’s vehicle and fell across the lanes of public travel on a State roadway.

Claimants have met their burdens of proof that Respondent’s employee’s actions constituted negligence on the admitted facts of record. The State owned the roadway, the instrument of injury was struck by a State employee in the course of his employment duties, and the negligent act proximately caused Claimant, Kerry Vintila’s injuries as may be proved, and those as may be proved by her husband, Theodore Vintila, arising from the incident complained of in these actions.

Claimants have the duty of proving their damages. Harris v. State (1989), 41Ill.Ct.Cl.184. Claimants’ damages have been substantiated, in part, by their own testimony, expert testimony, and supporting bills and other evidence of medical treatments admitted or of record.

Respondent has provided testimony and proofs to rebut some damages claimed. Claimants seek damages in excess of $1.2 million dollars.

The Court of Claims Act provides in relevant part as follows:

All claims against the state for damages in cases sounding in tort…shall

not exceed the sum of $100,000 to or for the benefit of any claimant.

The $100,000.00 limit prescribed by this Section does not apply to an

award of damages in any case sounding in tort arising out of the

operation by a State employee of a vehicle owned, leased, or controlled

by the State. Court of Claims Act, 705 ILCS 505/8(d).

[*237] The first damage question in this cause consequently becomes whether a mower on the distant right of way of the traveled roadway is, in fact, a vehicle. This issue has been considered on the discrete and specific facts of prior claims. The Court of Claims has found that the legislative intent of “vehicle” was generally meant for vehicles normally operated on roadways for the transport of passengers, police, emergency personnel, or the primary purpose of the vehicle was for transportation, not vehicles designated as construction or maintenance equipment capable of vehicular movement and transport of the driver or additional passengers for limited purpose. The Court has previously ruled that a mower is not a vehicle under similar facts, for purposes of the Act. Hence, we find that the $100,000.00 limitation on normal tort damages applies on the facts of record in this claim. Starr vs. State of Illinois, (1999), 52Ill.Ct.Cl.271.

IT IS HEREBY ORDERED that based upon the foregoing, the Court awards Claimant, Kerry Vintila, the sum of $100,000.00 in full and final satisfaction of her claim, and Theodore Vintila is awarded $5,000.00 in full and final satisfaction of his claim.

We find that Claimant would not have been entitled to more than the normal statutory award of $100,000.00 on the damages presented and proofs submitted had the exception been found applicable for operation of a State vehicle on the record.

The Awards are made on the merits and these claims in full and final satisfaction, and this cause is hereby dismissed and closed.