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Paul Gerlach v. State of Illinois et al.

66 Ill. Ct. Cl. 125 Illinois Court of Claims Filed 2013-07-25 No. 10-CC-3274
Disposition: (No. 10-CC-3274 - Claim denied) Agency: Illinois Department of Transportation
Cite as: Paul Gerlach v. State of Illinois et al., 66 Ill. Ct. Cl. 125 (2013)
General Court of Claims 66 denied 2010s Paul Gerlach v. State of Illinois et al. 66 Ill. Ct. Cl. 125 2013-07-25 (No. 10-CC-3274 - Claim denied) /opinions/v66-p0125-1/

PAUL GERLACH, Claimant, v. STATE OF ILLINOIS and THE ILLINOIS DEPARTMENT OF TRANSPORTATION, Respondent.

Case summary

Claimant sought damages for injuries sustained when his bicycle struck a pothole on a state highway. The court denied the claim, finding that the State did not breach its duty of reasonable care because it repaired the pothole on the next business day after receiving notice, and the accident occurred on a Sunday before repairs could be made.

Claim type: Personal Injury Negligence

Cases cited: Brady v. State of Illinois, (2007) 54 Ill.Ct.Cl. 397; Neuhalfren v. State of Illinois, (2007) 59 Ill.Ct.Cl. 350; Blair v. State of Illinois, (1994) 47 Ill.Ct.Cl. 108; Margolis v. State of Illinois, (1998) 51 Ill.Ct.Cl. 32; State Farm Mutual Insurance Co. v. State of Illinois, (2001) 53 Ill.Ct.Cl. 232

AI-generated summary from the opinion text — may contain errors. The opinion text and PDF above are the official record.

Headnotes

  1. Negligence- Elements- Burden of proof- For clamant to recover upon a theory of negligence, he must prove, by a preponderance of the evidence, the State breached its duty of reasonable care; the breach was a proximate cause of the claimant’s injuries; and the claimant was damaged as result of the negligence.
  2. Same- Requirements- Notice- In order for a Claimant to recover, he must prove the State had actual or constructive notice of the dangerous condition that allegedly existed.
  3. Same- Constructive Notice- Constructive notice can be imputed to the State where a condition by its nature, duration and potential for harm should have come to the attention of the State so that the State would have made repairs.

OPINION

KUBASIAK, J.

This matter comes before the court on the trial held October 16, 2012

before Commissioner Andrea M. Buford.

FACTS

On Sunday, April 26, 2009, Claimant was riding his bicycle in the eastbound lane of Lake Cook Road, east of Bateman Road in Barrington Hills, when his bicycle struck a pothole causing him to fall and sustain injuries. On Saturday, April 25, 2009, the day before, Respondent received notice of the existence of the pothole. The pothole was repaired on Monday, April 27, 2009.

The claimant testified he did not see the pothole prior to the fall, did not get

a good look at it after the fall and could not affirm whether the pothole was filled

with water.

[*126] State witnesses testified to the process and procedure on pothole repairs and specifically as to what happened in the instant case. When a call comes in regarding a pothole, unless it is an emergency, it will be put on the pothole sheet and it will be repaired on the next work day. If it is characterized as an emergency or hazard by an official source, an incident report will be prepared and they will call in emergency personnel to assess and repair. In the instant case, the call came in from police dispatch, who did not report the pothole as a hazard. IDOT relies on official sources, police personnel, to determine if a condition is a hazard. The police officer in this case did not think the pothole was a hazard, did not report it as such and did not take any steps to warn anyone of its existence.

ANALYSIS

The State is not the absolute insurer against all accidents which may occur by reason of the condition of its highways. Brady v. State of Illinois, (2007) 54 Ill.Ct. C1.397. To recover, the claimant must prove by a preponderance of the evidence that 1) the

State

breached its duty of reasonable care, 2) the State's negligence was a proximate cause of the injury, 3) a dangerous condition or defect existed and 4) the State had actual or constructive notice of the condition. Neuhalfren v. State of Illinois, (2007) 59 Ill.Ct.C1. 350, Blair v. State of Illinois, (1994) 47 Ill.Ct.Cl. 108.

In order to recover, claimant must establish the respondent had actual or constructive notice of the condition. Margolis v. State of Illinois, (1998) 51 Ill.Ct.Cl. 32. Constructive notice can be imputed to the State where a condition by its nature, duration and potential for harm should have come to the attention of the State so that the State would have made repairs. State Farm Mutual Insurance Co. v. State of Illinois, (2001) 53 Ill.Ct.Cl.232.

Here, the State received notice of the condition on the Saturday evening before the accident when a full complement of staff is not available. Claimant was injured the next day, Sunday. The State followed procedure, when based upon the notice received; the pothole was repaired on the following business day, Monday. Unfortunately, Claimant was injured on Sunday. However, it cannot be said that the State breached its duty based upon the facts as outlined above.

Based on the foregoing, claimant cannot establish Respondent breached its duty to use reasonable care in the maintenance of its highways. Therefore, Claimant has not met his burden and the claim is hereby dismissed.

Official volume 66 (Official Reports of the Illinois Court of Claims For: Fiscal Year 2014 – July 1, 2013–June 30, 2014)  ·  All opinions in this volume

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