Arla Faye Franchi v. Illinois Department of Transportation

ORDER

STEFFEN, J.

This matter comes before this court on the complaint of Arla Faye Franchi, Claimant and against State of Illinois, Illinois Department of Transportation, Respondent. Claimant alleges that she fell on a street, improperly maintained by Respondent, resulting in an injury and seeking damages in the amount of $100,000.00.

Claimant testified that on July 4, 2001, she and a group from her dance studio, comprised of approximately fifty, five year-old students were marching in the annual Village of Skokie 4th of July Parade. She had participated in the parade for three consecutive years prior to 2001.

Claimant was marching northwesterly on Lincoln Avenue between LeClaire and Niles Center Road. She testified that when she responded to one of the children veering off to the crowd, she fell into a depression in the street. She was bleeding from her hands and knees and had to be helped out of the street.

The day following the fall, Claimant went to the hospital where she was treated for a broken wrist. The injury was in a cast for approximately two months. Claimant further testified to experiencing pain; undergoing a regimen of physical therapy and acupuncture; and modifications to her active lifestyle during her recovery.

Claimant testified she had previously observed cracks and depressions in the roadway but that the subject imperfection was far more serious on the date of the incident. She described the hole as an egg shaped, approximately 8 to 10 inch depression. On July 10, 2001, Claimant reported the roadway condition to IDOT. She later returned to the scene of the incident and determined that no repair had been made.

[*192] She had a neighbor photograph the scene. Claimant returned to the scene again in September 2001, to re-photograph the scene. She discovered that repairs had been made to the roadway sometime prior.

Claimant argued that the Illinois Tort Immunity Act, 745 ILCS 10/3-102, should be applied in the current case. The Court of Claims has noted and the Illinois General Assembly has established that the scope of liability under the Act applies to county governments. The Illinois Tort Immunity Act does not apply to claims against the State of Illinois. Alencastro vs. State (2001) 54 Ill. Ct. Cl. 451.

The law is clear that in order to maintain a negligence claim in the Court of Claims, Claimant must establish by preponderance of the evidence that Respondent had a duty to Claimant, and that breach of the duty was the proximate cause of the injury. Freeman vs. State (2003) 55 Ill. Ct. Cl. 329. In cases involving road defects, Claimant must further establish Respondent had actual or constructive notice of the defect. Scroggins vs. State (1991) 43 Ill. Ct. Cl. 225.

Claimant contends Respondent had actual notice of the subject defect. A review of the IDOT communication center records revealed no notice had been given of the defect prior to the incident. However, the record indicates that a “Needs Survey” was performed on Lincoln Avenue in 2000 and again in May, 2001. A Needs Survey is a visual inspection of a roadway to determine its condition and to establish a budget for future maintenance. The inspection reports included the area of the incident. The Needs Survey concluded that money should be appropriated in anticipation of conditions that were developing over time in the subject area. Claimant argues that the Needs Survey’s conclusion that money should be assigned for future repairs constitutes actual notice. Claimant contends that the Survey constitutes actual notice of the roadway defect. The Needs Survey performed in this area made broad conclusions about the general condition and anticipated future condition of the roadway. The Survey conclusions did not in this case establish actual notice of the subject depression. Claimant has not established actual notice.

The factors considered in establishing constructive notice are the length of time that the road defect existed and the open and obvious nature of defect. Alsobrook vs. State (1995) 48 Ill. Ct. Cl. 205. To recover for an injury in a roadway case, the defect must be substantial and enduring. Wysopal vs. State (2000) 52 Ill. Ct. Cl. 227. In analyzing pedestrian personal injury cases involving road defects, the Court applies the same standard of law that applies to personal injury and property damage cases involving road defects. Stojentin vs. State (1999) 53 Ill. Ct. Cl. 82.

In pedestrian personal injury cases, the Court has consistently required Claimant to establish evidence of the length of time the defect existed. This court has determined constructive notice to have existed where the evidence established defects as follows: Pothole was 24 inches long, 12 inches wide, 2 inches deep and existed for at least one year prior to incident, Stojentin vs. State (1999) 53 Ill. Ct. Cl. 82; depression in roadway measured 36 inches long, 24 inches wide, 3 to 4 inches deep and existed one to four months prior to incident, Baren vs. State (1974) 30 Ill. Ct. Cl. 162; and where the crack in the roadway was established to have existed for at least four months prior to the accident, Gillespie vs. State (1966) 25 Ill. Ct. Cl. 309.

The law is clear that each case involving an allegation of constructive notice must be decided on its own facts. Bugler vs. State (1967) 26 Ill. Ct. Cl. 173. Constructive notice has been established where the condition would have been discovered through the exercise of due diligence. Eudaley vs. State (1995) 97 Ill. Ct. Cl. 89, 90. The test applied in determining constructive notice is “whether the condition by its evident nature, duration and potential harm would necessarily have come to the attention of the State”. Commercial Union Insurance Co. vs. State (1995) 47 Ill. Ct. Cl. 301.

[*193] In this case, Claimant’s testimony at trial established with reasonable certainty that on the day of the incident, a depression existed in the roadway. However, Claimant has failed to present evidence to establish that the defect was substantial enough in size, or existed for a significant length of time on the date of injury, to warrant a finding of constructive notice.

IT IS HEREBY ORDERED that based on Claimant’s failure to sustain her burden of proof, this claim is denied.