Michelle Del Valle v. Illinois Department of Transportation

ORDER

Jann, J.

This matter comes before this court on the complaint of MICHELLE DEL VALLE,

Claimant and against STATE OF ILLINOIS, ILLINOIS DEPARTMENT OF TRANSPORTION,

Respondent.

Claimant alleges she was injured in a traffic accident as a result of negligence

of State of Illinois employees.

Claimant seeks damages in the amount of $100,000.00.

The

facts adduced at trial are as follows:

FACTS

On March 27, 2004 at approximately 1:00 a.m. Claimant, Michelle Del Valle, was

working as a patrol officer for the Cook County Sheriff's Police.

She had been employed as

a patrol officer for approximately 6 months.

She began her shift the prior evening at 10:00

p.m.

After midnight, Claimant was in her vehicle and responding to a nonemergency call

when she entered I-55 at LaGrange Road traveling northbound.

The night was foggy.

She

[*159] was familiar with the roadway, as she traveled it several times a week, and she was aware

of an approaching break in the median barrier between the north and southbound lanes.

Claimant testified that she was traveling in the most interior lane and did not have

her emergency lights activated.

She first saw the Illinois Department of Transportation

(hereinafter IDOT) vehicle at a distance of approximately 100 yards.

She witnessed the

truck, which had been traveling southbound on I-55, turn into the break in the median

barrier on the I-55 roadway and come to a stop facing eastbound.

Claimant testified that

the truck did not have its emergency lights activated.

After she saw the IDOT vehicle stop,

she continued on her path at approximately 60 m.p.h.

Claimant testified that as she

approached the break in the median at a distance of approximately 5-6 car lengths, the

truck pulled out in front of her, straight across the I-55 northbound lanes.

Claimant started

to brake, slammed on her brakes, and turned into the middle lane to avoid striking the

IDOT truck.

The front of Claimant's vehicle collided with the passenger side of the IDOT

vehicle.

Claimant's vehicle spun around and ultimately came to rest in the ditch on the east

side of I-55.

Claimant's airbag had deployed and there were flames coming out of the hood

of the car.

Claimant was pinned in the car, the door was stuck, and the vehicle was on fire

and filling with smoke.

Three male bystanders were eventually able to pry open the

driver's door, free Claimant and remove her from the vehicle, which exploded soon

thereafter.

Claimant was transported to Loyola University Hospital where she was treated

for burns, abrasions, and a fracture to her right ankle.

IDOT employee, Isadore Head, was the driver of the IDOT emergency vehicle

involved in the accident with Claimant.

Head testified that he had been a professional

driver in several capacities for more than 30 years.

On the night in question he was [*160]

traveling southbound on I-55 when he observed a vehicle stranded in the middle of I-55

northbound.

Head testified that as an emergency vehicle he was authorized to make a turn

in the roadway where U-Turns are prohibited.

Head testified that he activated his

emergency lights on the roof of the vehicle and turned into the break in the median to

reverse his path from south to north.

As he initiated the turn he saw two vehicles

approaching at a distance from the north.

Head stated he did not make a full stop, he

slowed down and then made his turn.

Head's testimony as to the distance of the

approaching vehicles was inconsistent.

During the course of his testimony he stated that

the vehicles were a mile away, that they were one-half mile away, and that they were a

block away.

He testified that he was in a rush to assist the stalled vehicle.

He stated he

didn't know his speed, the distance of the vehicles, or the amount of time that it would take

an approaching vehicle to reach him, but that based on his experience, he had sufficient

time to complete the turn.

Head testified he first turned into the inside lane on northbound I-55 and he

observed Claimant's vehicle fast approaching so he moved into the middle lane, but was

again followed by Claimant's vehicle so he began to move into the outside lane when

Claimant's vehicle struck his truck.

Head's truck spun around and came to rest southbound

in the northbound lanes.

Head righted the direction of his vehicle and called in for

emergency assistance.

Respondent produced IDOT employee, Robert Dilling.

Dilling, a shift commander of

emergency traffic control employees.

Dilling is also trained as an evidence technician.

Dilling photographed the break in the I-55 median, which he described as "turnaround

commonly used by state police".

The photographs taken by Dilling after the incident [*161]

indicate the "No U-Turn" had a sign below that further indicated "Except Authorized

Vehicles".

Claimant produced Cook County Sheriff's Detective Robert Nawrot.

Nawrot

established himself as a trained and experienced accident reconstructionist.

Nawrot

arrived at the scene approximately an hour after the accident.

The truck had been moved

out of the lanes of traffic.

Nawrot described the temperature as 40 degrees, overcast and

heavy fog.

Nawrot testified that on the night of the accident headlights were visible but the

foggy conditions diminished the quality of the view and made vehicles appear further away

than they actually were.

Nawrot photographed the sign at the median break and testified

that on the night of the incident there was a sign indicating "No U-Turn" for southbound

traffic and no sign indicating an exception for authorized vehicles.

He further testified

there was no signage at the median break visible to northbound drivers.

Nawrot identified

photos taken May 9, 2006, more than two years after the incident that showed "No U-Turn"

and "Except for Authorized Vehicles" signage visible to both north and southbound drivers.

Nawrot testified that in the absence of the "Except for Authorized Vehicles" signage, all

vehicles, including emergency vehicles, are prohibited from U-Turns.

He further testified

that southbound drivers have no expectation of a break in the road or a car making a U

Turn.

Based on his examination of the accident scene and the damage of the vehicles,

Nawrot further opined that at the time of impact the IDOT truck was crossing the

northbound lanes of traffic in a northeasterly direction and traveling approximately

slightly more than 5 m.p.h.

The truck had cleared one lane and was between lanes two and [*162]

three at the time of the collision.

Nawrot suggested that Claimant was traveling at

approximately the speed limit.

LAW

To sustain her burden of proof in a negligence claim, Claimant must establish by a preponderance of the evidence that Respondent had a duty to Claimant; the Respondent breached that duty, that Respondent's negligence was the proximate cause of Claimant's injury; and the Claimant suffered actual damages.

Woodering v State, 49 Ill.Ct.Cl. 31 (1997).

Claimant asserts Respondent was negligent through its agent employee, Isadore Head.

The law is well established that the principal can be held liable for physical harm to third parties for the employee's failure to exercise reasonable care.

Woodering v State, Ill.Ct.Cl. 31,39 (1997).

In this case, Claimant first alleges Respondent's breach of duty by failure to comply with the rules of the road.

Claimant contends that on the night of the incident the

signage indicated No U-Turn, and did not specifically state an exception for emergency

vehicles.

The Illinois Vehicle Code provides in relevant part as follows:

(b) The driver of an authorized emergency vehicle, when responding to an

emergency call or when in the pursuit of an actual or suspected violator of the

law or when responding to but not upon returning from a fire alarm, may

exercise the privileges set forth in this Section, but subject to the conditions

herein stated.

(c) The driver of an authorized emergency vehicle may:

4.

Disregard regulations governing direction of movement or

turning in specific directions.

(d) The exceptions herein granted to an authorized emergency, other than a

police vehicle, shall apply only when the vehicle is making use of either an

audible signal when in motion or visual signals meeting the requirements of

Section 12-215 of this Act.

(e) The foregoing provisions do not relieve the driver of an authorized emergency

vehicle from the duty of driving with due regard for the safety of all persons,

nor do such provisions protect the driver from the consequences of his

reckless disregard for the safety of others.

[*163] In this case, the testimony was conflicting and inconsistent as to whether an "Except for Authorized Vehicles" sign was posted under the No-U-Turn sign at the break in the median.

But even in absence of the sign establishing an exception; the law creates one by allowing the drivers of emergency vehicles when responding to an emergency to disregard regulations governing direction of movement or turning in specific directions.

As the driver of an authorized emergency vehicle responding to an emergency, Head was not prohibited from making the U-Turn.

However, the statute imposed additional requirements on his special authority.

An emergency vehicle driver is also charged with the responsibility of displaying visual signals and the duty of driving with due regard for the safety of all persons.

The question for consideration here is whether the IDOT driver exercised due caution for the safety of persons traveling on the roadway.

This incident took place on a foggy and artificially lit highway in early morning hours.

Cook County Detective and accident reconstructionist, Robert Nawrot, who arrived at the scene an hour after the collision, testified that the conditions distorted the accuracy of the road view, and that vehicles were nearer than they appeared.

Clearly, the conditions required drivers to act with extra caution for the safety of travelers on the roadway.

IDOT driver Head testified that he was responding to a stranded vehicle, and that he activated his lights before he initiated his U-Turn.

He testified that he turned into the break in the roadway, paused, and based on his experience, determined that the approaching vehicles were at a safe distance, and made his turn.

When he pulled into the northbound roadway, he saw the Claimant's vehicle maneuvering around and advancing on the other approaching vehicles.

Head moved across the lanes of traffic to avoid Claimant's vehicle but failed to avoid the resulting collision.

The fact that he was operating an emergency [*164] vehicle, that he was responding to a stalled vehicle and that his emergency lights were activated, doesn't relieve his obligation to proceed with due caution.

The evidence indicates that when Head turned into the northbound lanes of I-55, he failed to fully consider the diminished visibility caused by the dark, foggy conditions and he underestimated the distance and speed of the approaching vehicles.

His poor judgment was clearly a proximate cause of the collision.

Respondent contends, however, that Claimant's actions were contributorily negligent.

Claimant testified, and accident reconstructionist Robert Nawrot confirmed by his testimony, that Claimant was traveling at approximately 60 m.p.h. in a 55 m.p.h. zone.

Claimant's argument that she had no expectation of a turning vehicle at the median break, is contrary to the facts.

Claimant acknowledged that she was familiar with the roadway and aware of the interruption in the road barrier.

She also testified that she initially saw Head's vehicle in the roadway break from a 100-yard distance.

Claimant testified that she could see the vehicle well enough to know that its emergency lights were not activated, and that she expected the vehicle to remain stopped.

Claimant was aware of the break in the median, she saw the vehicle turn in, she was aware of the foggy conditions, yet she maintained her speed slightly in excess of the posted limit.

Claimant failed to demonstrate due caution under the circumstances and should be charged with 10% contributory negligence.

DAMAGES

Just prior to the accident Claimant knew her vehicle was going to strike the IDOT

vehicle.

She braced herself, the airbag deployed and dazed her.

After the collision, the car

came to rest at the side of the road.

The steering wheel and dash board collapsed on [*165]

Claimant's knees, her legs were pinned and she could not get out of the car.

Claimant's

vehicle began filling with smoke and was making a crackling sound.

It was a dramatic incident scene as independent bystanders came to Claimant's aid

and attempted to remove her from the vehicle.

They pulled on the door until the exterior

portion was removed but the inside plastic material remained intact.

One of the rescuers

kicked the plastic until it was removed.

They were attempting to pull her from the

wreckage while the engine was sparking, crackling and the vehicle was filling with smoke.

Claimant was screaming and pleading that they wouldn't leave her.

As the flames

accelerated she was eventually pulled from the car and carried to a safe distance.

The car

blew up almost immediately after she was evacuated.

Claimant was transported to Loyola University Hospital by ambulance.

She was

treated for abrasions and burns, she was bruised and her right ankle was fractured.

She

was released from the hospital the next day.

Claimant complained of full body pain following the accident which she medicated with pain killers.

Claimant treated with an orthopedic surgeon who cast the broken ankle.

Claimant treated with physical therapy for 10 months.

She was off work and returned to light duty after 3 months.

On an occasion where she was asked to move a squad car, she was overcome emotionally recalling the incident, and suffered a panic attack.

Claimant also treated with psychiatrist Dr. Manoff for three years.

Dr. Manoff

diagnosed Claimant with post traumatic stress disorder and major depression resulting from the subject accident.

Claimant's symptoms included significant weight loss, insomnia, low energy, irritability and anxiety attacks.

Dr. Manoff testified that Claimant's prognosis for recovery was fair and contingent upon continued treatment.

[*166] Claimant's medical expenses totaled $14,522.95 as follows: $7,384.95 for orthopedic treatment; $4,220.00 for psychiatric treatment; and $2,918.00 for physical therapy.

The medical expenses were all necessary and reasonable.

Considering the expenses, Claimant's pain and suffering, and continuing psychiatric care the total award for damages shall be $55,000.00 reduced by 10% for contributory negligence for a final award of $49,500.00.