Lozaro Lopez v. State of Illinois

OPINION

Birnbaum, J.

FACTUAL BACKGROUND

A. The Oct. 29, 2003 Incident and Claimant’s Injuries

On the morning of Oct. 29, 2003 Claimant, Lozaro Lopez, was driving his vehicle at about 55 mph in one of the middle two lanes of I-80/94, a major thoroughfare in the State of Illinois.

While driving under the Torrence Avenue [*139] bridge, soda-can sized pieces of concrete fell from the underside of the bridge, striking the front-end and hood of Claimant’s car and piercing his windshield, pieces of which were all over Claimant, including his glasses and hair.

Claimant described the windshield shattering as an explosion.

Upon its occurrence, Claimant jerked his head left to avoid the shattered glass from hitting him in the face.

With moving traffic in the lanes on either side of him, Claimant clenched the steering wheel to control the car, eventually maneuvering it safely to the road’s left shoulder.

He recalled that his chest felt really tight and he had great difficulty breathing.

He felt like he was going to be hit by traffic, so he braced himself by continuing to hold the steering wheel tightly right up until police arrived.

Claimant was transported via ambulance to The Community Hospital in Munster, Indiana, where, after conducting several types of examinations, including an EKG, doctors treated him for acute chest pain and anxiety.

He was prescribed Naprosyn for the pain and Valium for the anxiety.

Prior to that day, Claimant went to his regular physician, Dr. Bicek, complaining of pain in his neck, left shoulder, wrist, and elbow; numbness and tingling in his left hand; anxiety from constantly thinking about the incident; and sleeplessness due to anxiety.

On Nov. 11, 2003 he started physical therapy at Dupage Medical Group.

He

was prescribed the physical therapy to help with his physical ailments.

On Dec. 23, 2003, Claimant was referred to orthopedic specialist, Dr. Marc Breslow at Dupage Medical Group, for a more in depth evaluation.

Dr. Breslow diagnosed him as having cervical strain, left rotator cuff tendinitis, and left wrist and elbow strain.

Dr. Breslow recommended that Claimant continue physical therapy.

Claimant

continued with physical therapy until Oct. 27, 2004.

Claimant saw several other specialists regarding his pain as well.

During the course of about two years, Claimant received MRI’s, x-rays, CT scans, and EMG’s regarding his physical conditions.

Claimant also received injections to alleviate the pain in his shoulder.

Based on Dr. Breslow’s Sept. 21, 2004 report, Claimant’s physical ailments seem to have largely subsided by then, however he still reported numbness and tingling in his left hand.

Claimant testified that in the two year-period following his injuries - the period where he suffered the most anxiety and distress over the incident - he was unable to divert his attention through playing the violin or guitar (two of his hobbies) because the numbness and tingling in his left hand rendered him unable to put pressure on the strings with his left hand.

Claimant further testified that, currently, his left arm is weaker than his right, and he is unable to carry heavy things with his left arm.

With respect to his anxiety related to the incident, Claimant was referred to Dr. Dorothy May, a clinical psychologist, on Dec. 4, 2003.

Dr. May diagnosed Claimant as suffering from Post-Traumatic Stress Disorder (PTSD) related to the incident on Oct. 29, 2003 and treated him with cognitive behavioral therapy to reframe his thought process, self-hypnosis to retrain his emotions, and long-term integration.

His treatment with Dr. May ended on Jan. 24, 2005.

Claimant also was referred to Dr. Koeing, a psychiatrist at Riverside Clinic, on Dec. 31, 2005.

Claimant

also was referred to a Dr. Koeing, a psychiatrist at Riverside Clinic, on Dec. 31, 2003 [*140] to prescribe him antidepressants and anxiety medications in conjunction with therapy.

Claimant testified that when he had difficulty breathing at the scene of the incident, he thought he was going to die.

Subsequently, he had a hard time sleeping or concentrating because he was always thinking about the incident.

Then, when he was prescribed medication to help him sleep, he could finally sleep, but he kept having nightmares about the incident.

The nightmares always changed; sometimes he hit a wall, sometimes he got hit by a truck.

Consequently, he would have a hard time distinguishing if what he was perceiving was real or a dream.

Also, the sleeping medication made him drowsy, rendering it hard to concentrate; so he had to be prescribed Ritalin to help him concentrate.

Dr. May, who received her doctorate degree in clinical psychology from Northwestern University and has been practicing for thirty years, noted in her deposition that Claimant complained of anxiety, depression, difficulty concentrating, and that for a long time he had to limit himself to working part-time.

She also noted that he thought he could have died when the incident occurred and that he was frightened he would die or have another serious accident.

Further, because he kept reliving the trauma from the incident in his head, he would perceive the trauma anytime he felt threatened, like if someone insulted him.

In Dr. May’s opinion, Claimant’s symptoms were the result of the Oct. 29, 2003 incident.

Based on Claimant’s testimony, his PTSD symptoms seemed to have largely subsided.

B.

Maintenance and Inspections of the Torrence Ave. Bridge

On Oct. 29, 2003, a few hours after Claimant’s incident, IDOT civil engineer, Jawad Khalil, arrived at the scene to investigate the underside of the bridge.

Khalil

received his civil engineering degree in 1982 and had been working for IDOT since 1984.

He determined that pieces of fillet (concrete on the underside of the bridge) had become loose and fallen below.

He further determined that the bridge had not been struck by any vehicles.

According to Khalil, in order to detect whether a concrete fillet is compromised, a bucket truck must be used for close examinations.

In a bucket truck, the employee is hoisted up in a bucket-like structure close to the underside of the bridge.

He further stated that even up close visualization is inadequate for determining whether the concrete fillet is hollow inside, which is what causes the fillet to come loose and fall.

To determine if the concrete fillet is hollow, he stated that a process known as scaling must be employed.

Scaling is the process of gently hammering at the concrete to see if it is hollow.

Sarah Wilson, an IDOT bridge maintenance engineer, stated that in a lot of cases a visual inspection from the ground will not tell the whole story about the concrete fillets, but it is the first place to start.

She explained that if the visual inspection reveals any problems, then IDOT calls for a more detailed inspection.

However, neither Federal nor State guidelines require that the concrete fillets be inspected using a bucket truck or the scaling method.

She agreed that concrete falling from the underside of the bridge constituted a safety hazard for drivers travelling under the bridge.

IDOT’s records reveal that the bridge had been completely scaled in 1999, and that between 1999 and the date of Claimant’s incident, IDOT had not received [*141] any complaints from travelers about concrete falling from the underside of the bridge.

However, on September 22, 2001, bridge inspector Mike Valentine conducted a routine inspection of the Torrence Ave. bridge.

This routine inspection was conducted every two years.

In his report, Valentine stated, “removed chunk of concrete fillet that is sitting on the top of the diaphragm over Westbound Lane 3, made in line in Bay 4, No. 4.

In the near future we might want to check all the fillets on this structure again.”

Sarah Wilson testified that she thought that a maintenance crew had been sent out to address at least the specific concrete fillet on the top of the diaphragm soon after Valentine’s report, but she was uncertain that all of the concrete fillets had been checked.

There were no IDOT records indicating that a crew had been sent out, or that any of the concrete fillets were checked between the time of Valentine’s inspection and the next inspection that occurred two years later.

The next inspection of the Torrence Avenue bridge occurred on September 20, 2003 - a little over a month prior to this incident.

IDOT bridge inspector, Alexis Brown, conducted the full routine bi-annual inspection.

She testified that the purpose of the inspection was to rate the bridge under specified guidelines and determine whether the bridge could continue carrying the load it was designed to carry and remain in service.

A portion of that inspection involved inspecting the concrete fillets.

However, she stated several times that her inspection was not aimed at determining whether the concrete fillets posed a risk of falling onto oncoming traffic.

She further testified that she did not remember whether she ever read Valentine’s report.

But later in her testimony, after agreeing that Valentine’s report suggested that IDOT pay closer attention to the concrete fillets, she indicated that his report was the reason she ordered a lane closure when she inspected the concrete fillets.

Brown testified that she inspected the concrete fillets up close, hoisted near the underside of the bridge in bucket truck.

However, in her 2005 deposition she stated that the bucket truck was used to facilitate a lane closure that she requested in order to visually inspect the bridge from the road.

In her deposition she explicitly stated that she did a visual inspection of the concrete fillets, using only binoculars.

In her testimony at the hearing, she did not remember if he scaled the concrete fillets.

ANALYSIS

To prove a cause of action in negligence, Claimant must establish the following facts by a preponderance of the evidence: the existence of a duty that Respondent owed; Respondent’s breach of that duty; and that as a proximate result of the breach the Claimant suffered damages. See Estate of Johnson by Johnson v. Condell Memorial Hosp, 119 Ill.2d 496 (1988).

A.

Respondent’s Duty

The State has a duty to protect people on its roads from defective and dangerous conditions. Dixon v. State, 51 Ill.Ct.Cl. 10 (1988).

This duty includes potentially dangerous conditions. See Kipping v. State, 52 Ill.Ct.Cl. 211 (1999).

However, the state does not have a duty to prevent all accidents due to the condition of its highways.

See Scroggins v. State, 43 Ill. Ct. Cl. 225, 226 (1991).

The burden of [*142] imposing such a duty would be too great in magnitude, as would the consequences of placing this burden on the State.

To that end, the State’s duty is limited to using ordinary care in protecting Claimant from dangerous or defective conditions on its highways of which it had actual or constructive notice. See Dixon, supra.

B. Did respondent Breach its Duty to Claimant?

1. Actual or Constructive Notice

Thus, in determining whether Respondent breached its duty of ordinary care regarding a defect or dangerous condition on its highways, as a threshold matter, we must determine if the State had actual or constructive notice of the condition.

Both

Claimant and Respondent discuss notice in terms of Respondent’s duty of ordinary care.

However, determination of whether a duty exists is a question of law, and determination of whether Respondent had notice is a question of fact.

See Hornacek

v. 5th Ave. Property Management, 2011 IL App (1st) 103502, ¶ 27, ¶ 29.

Thus, questions regarding notice are better suited in evaluating breach, which is also a question of fact.

See Olivarius v. Tharaldson Property Management, Inc., 695 F.Supp.2d 824, 831-32 (N.D.Ill. 2010) (Citing Illinois Supreme Court in Marshall v. Burger King Corp., 222 Ill2d 422 (2006) for the proposition that, “the question [of duty] is one of law, it cannot rest on a ‘fact-specific formulation,’ but rather whether a duty was generally owed”).

Most courts applying Illinois law take this position and analyze actual or constructive notice of a dangerous conditions a fact issue relevant to whether the defendant breached its duty of care.

Olivarius, supra at 832.

Indeed the Court of Claims analyzes notice in such a manner.

See Scroggins, supra. (Holding that actual or constructive notice of dangerous condition or defect is required to establish breach of duty by State).

Here, the defect or dangerous condition Claimant came into contact with was the falling concrete fillets from the underside of the bridge.

Valentine’s report in 2001 expressed a clear concern about the concrete fillets.

He stated in his report that he removed a chunk of concrete fillet from under the bridge.

He further stated, “in the near future we might want to check all the fillets again.”

We find that these facts provided Respondent with actual notice that the concrete fillet on the underside of the bridge posed a potentially dangerous condition to traffic on the road below.

See Gushes v. State 53 Ill.Ct.CL. 54 (2000). (Holding that Respondent had actual notice that an inspection of the expansion joints on a stretch of highway should be conducted where, five days before an expansion joint popped off and hit claimant’s vehicle, another expansion joint 100 feet away from the one that hit the claimant had come loose, and the person repairing it told IDOT that a bridge crew should be notified).

2. Standard of Conduct

To determine whether Respondent breached its duty to Claimant, this Court must apply the appropriate standard of conduct, which in general negligence cases is the reasonable person standard.

This is an objective test, based on the “failure to do something that a reasonable, careful person would do, or to do something that a reasonable careful person would not do under circumstances similar to those shown by the evidence.” Dealers Service & Supply Co. v. St. Louis National Stockyards Co., 155 Ill.App.3d 1075, 1081 (5th Dist. 1987).

[*143] Here, Claimant argues that Respondent breached its duty of ordinary care in protecting him from a dangerous condition when it failed to conduct, within a reasonable time, a more detailed inspection of the concrete fillets after receiving Valentine’s report.

Under the reasonable person standard, we analyze whether Respondent breached it duty by asking: Would a reasonable, careful person have conducted a more detailed inspection of the concrete fillets on the underside of the bridge within a reasonable period of time after the bridge inspector reported that he just removed a chunk of fillet on the diaphragm that had broken off the underside of the bridge and recommended that all the concrete fillets be checked in the near future?

Given the potential for danger to oncoming traffic that such a condition presented, which IDOT agreed constitutes a safety hazard, we find that Respondent breached its duty of ordinary care by failing to conduct an inspection of the concrete fillets within a reasonable time soon after notice of the potentially dangerous condition.

Nonetheless Respondent argues that it did not breach this duty to Claimant because its inspection of the concrete fillets in 2003 complied with Federal and State regulations for inspecting a bridge.

In general negligence cases, experts are not needed to establish what a reasonable, careful person would or would not do under the facts.

However, evidence regarding conformity to custom and usage may be considered and may suffice to establish the standard of care.

Denniston v. Skelly Oil Co., 47 Ill.App.3d 1054, 1067-68 (3rd Dist. 1977).

Here, we find that, based on Respondent’s evidence regarding its compliance with Federal and State guidelines for inspecting a bridge, a reasonable, careful person would conduct a visual inspection of the concrete fillets when making a general bridge inspection.

However, based on Valentine’s report, which Respondent should have ensured that Brown was aware of when making her inspection, a reasonable, careful person would have conducted a more detailed inspection of the concrete fillets - especially when nothing in the Respondent’s records indicated that the concrete fillets had been repaired or inspected in the two years since Valentine’s report.

This

is consistent with Respondent’s own customs, because testimony from its employees indicated that, where a visual inspection revealed problems, a more detailed inspection should be conducted.

Further, through the testimony regarding Respondent’s custom and usage, Claimant established that a reasonable, careful person would have conducted a detailed inspection of the concrete fillets by using a scaling method.

Accordingly, we find that Respondent breached its duty of ordinary care to protect Claimant from dangerous conditions on its highways of which it had notice.

C. Was Respondent’s Negligence the Proximate Cause of Claimant’s

Injuries?

1. Claimant’s Physical Injuries

This takes us to the element of proximate cause.

Proximate cause is any cause which, in natural or probable sequence, produced the injury complained of.

Harry W. Kuhn Redi-Mix Concrete v. State, 45 Ill.Ct.Cl. 33 (1993).

It need not be the only cause or the last cause or the nearest cause.

It is sufficient if it concurs with some other cause acting at the same time, which, in combination with it, causes the injury. Id.

The term “proximate cause” encompasses two distinct requirements:

[*144] “cause in fact” (or actual cause) and “legal cause.”

Lee v. Chicago Transit Authority, 152 Ill.2d 432, 455 (1992).

Respondent’s negligent conduct will be considered the “cause in fact” of an injury if it was a material element or substantial factor in bringing about the injury; but for the negligent conduct, the injury would not have occurred.

Abrams v. City of Chicago, 211 Ill.2d 251, 258 (2004).

Legal cause is essentially a question of foreseeability; a negligent act is the legal cause of an injury if the injury is of a type that a reasonable person would see as a likely result of his conduct.

Lee, supra at 456.

Thus, the question of foreseeability regarding proximate cause hinges on the foreseeability of the particular injury, and should not be confused with the question of foreseeability of the particular injury, and should not be confused with the question of foreseeability in a duty analysis, which hinges on the foreseeability of an injury to the particular plaintiff.

See Nelson by Tatum v. Commonwealth Edison Co., 124 Ill.App.3d 655, 660 (2nd Dist. 1984) (Noting that courts must keep duty and proximate cause analytically independent by differentiating between “two distinct problems in negligence theory”- the unforeseen plaintiff problem in a duty analysis and the problem of the foreseeable injury resulting from unforeseen means in a proximate cause analysis).

Here, had Respondent not been negligent, it would have reasonably conducted a detailed inspection of the concrete fillets and discovered that the concrete fillets were loose and presumably would have made necessary repairs.

Because it takes a considerable length of time for the concrete fillets to become loose, had the concrete fillets been removed or repaired soon after Valentine’s report, there would not have been any loose concrete fillets to fall on Claimant’s car as he drove under the bridge.

In the alternative, even if Respondent did not make an immediate inspection, it could have prevented the damage to Claimant by ensuring that Brown’s 2003 inspection was conducted using the scaling method so that loose concrete fillets could have been detected and repaired.

We find that Claimant has established that while he was trying to avoid the concrete coming through his shattered windshield and maintain control of his car, he injured his neck, left shoulder, hand, and elbow.

Accordingly, we find that Respondent’s negligence was the actual cause of these injuries.

As for legal cause, we find that Claimant’s physical injuries were a foreseeable consequence of Respondent’s failing to conduct a reasonable inspection of the concrete fillets.

In making this determination, our concern is the foreseeability of the type of injuries he suffered, not the foreseeability of the manner in which they occurred. Colonial Inn Motor Lodge, Inc., for use and benefit of Cincinnati Ins. Co v. Gay, 288 Ill.App.3d 32, 44 (2nd Dist. 1997).

It was foreseeable that loose concrete fillets could fall through the windshield of a vehicle travelling on a major highway, and that the person struck would likely sustain bodily injury.

Accordingly, we find that Respondent’s negligence proximately caused Claimant’s physical injuries.

Respondent does not make any argument to the contrary regarding these injuries.

2.

Claimant’s PTSD

Respondent does, however, argue that its negligence did not proximately cause Claimant’s PTSD.

Respondent notes that Claimant’s medical history indicates [*145] he had a preexisting condition of hypertension and anxiety.

However, we must take the Claimant as we find him, thus even if the incident aggravated a preexisting condition, Respondent is liable for negligence.

Gildehaus v. State, 46 Ill.Ct.Cl. 176 (1993).

Further, although it is unclear if anxiety was a preexisting condition, it is perfectly clear that Claimant never received any medication for anxiety prior to the Oct. 23, 2003 incident.

Here, Claimant’s inability to breathe, heart pounding, and chest tightness suffered at the scene of the incident, and the medical records and testimony presented by Dr. May, indicate that Claimant perceived the incident as a near death experience.

His PTSD is based on the trauma he experienced as a result of this perceived near-death experience.

Accordingly, we are satisfied that Respondent’s negligence was the actual cause of Claimant’s PTSD.

As for legal cause, we will only find that Respondent’s negligence was not the legal cause of Claimant’s PTSD if such an injury appears “highly extraordinary” that the breach of the duty should have caused the particular injury.

Lee, supra at 456.

A

negligent defendant must take the plaintiff as he finds him, even if the plaintiff’s “eggshell skull” results in his suffering an injury that ordinarily would not be reasonably foreseeable.

Colonial Inn Motor Lodge, Inc., for Use and Benefit of Cincinnati Ins. Co., supra at 44.

To that end, to be foreseeable for purposes of legal cause, the injury “need not be ‘easily predicable’ or ‘highly probable.’” Id.

Neither a high degree of contingency nor a substantial lapse of time between the negligent act and the injury establishes lack of legal cause. Id.

Here, based on Respondent’s actual notice of a potentially dangerous condition, it was highly foreseeable that a concrete fillet could fall onto oncoming traffic if Respondent did not respond to the actual notice by carefully inspecting and repairing any damaged fillets the careful inspection disclosed.

Even though it was less foreseeable that a driver would be traumatized as a result of a concrete fillet falling onto a car, and suffer PTSD, we do not find the possibility of such an injury arising from Respondent’s negligence as highly extraordinary.

Thus, we find that Claimant’s PTSD was sufficiently foreseeable as a consequence of Respondent’s negligent conduct.

D. For What Damages is Respondent Responsible

Claimant has established by a preponderance of the evidence that Respondent is liable to him for damages.

The issue is what those damages are.

Claimant seeks damages in two categories: 1. expenses and medical bills associated with Respondent’s negligence; 2. pain and suffering.

1. Expenses and Bills Associated with Respondent’s Negligence

Claimant erroneously asserts in his post-trial brief that he is entitled to $28,538.25 spent in medical expenses and a tow-truck bill.

However, review of the total bills submitted by Claimant (Claimant’s Group Exhibits 16 and 17), indicates that Claimant submitted a total of $18,756.25 in bills of which $5,315.00 were paid.

As for the remaining $13,441.25, these bills were unpaid at the time of the hearing, and Claimant submitted these bills with sworn affidavits from the Respective bill-keepers stating that these expenses were reasonable and necessary.

Respondent stipulated that Claimant could submit these bills, but contested whether these bills were reasonable and necessary and argued that Claimant still had to meet [*146] its burden in establishing the bills were reasonable and necessary.

Respondent

made no argument as to why these bills were not reasonable or necessary.

In any case, based on the relevant medical records introduced into evidence, we find that the bills incurred were reasonable and necessary, and Claimant is awarded $13,441.25 for his unpaid medical bills and $5,315.00 for paid bills for a total of $18,756.25 in medical bills and other expenses related to the incident.

2.

Pain and Suffering Damages

With respect to Claimant’s damages for pain and suffering related to his physical injuries, we find that the majority of Claimant’s pain and suffering related to these injuries lasted a little over a year, and he is entitled to an award of $10,000.

With respect to Claimant’s pain and suffering resulting from his PTSD we find that, based on Dr. May’s report and Claimant’s testimony and demeanor at the hearing, Claimant did indeed suffer significant long-term mental and emotional trauma as a result of this incident.

Prior to this incident he had never been on any medication for anxiety; after this incident he has been on several, and he continued to relive this incident, which he perceived as a near death experience, for a significant length of time.

The angst and distress associated with reliving this trauma over and over again in his head negatively impacted the quality of his everyday life.

He suffered from this PTSD for almost one-and-a-half years.

Accordingly, we find Claimant is entitled to receive $25,000 for pain and suffering related to his PTSD.

THEREFORE, Respondent is hereby ordered to pay Claimant $18,756.25 for medical bills and other expenses related to the incident, $10,000 for pain and suffering related to Claimant’s physical injuries, and $25,000 for pain and suffering related to Claimant’s PTSD, for a total of $53,756.25.