Charlotte Cameron v. State of Illinois

OPINION

BIRNBAUM, J. This Claim arises out of a single motor vehicle accident that occurred on July 11, 1998, on Spresser Street in Taylorville, Christian County, Illinois, in which decedent, Kevin Kelly, the driver of the vehicle, was killed after striking a pile of dirt which was placed by Respondent's Illinois Department of Transportation ("IDOT") at the dead-end of Spresser Street (formerly old State Route 48). Spresser Street is south of new State Route 48 and is maintained by IDOT. Claimant alleges that Respondent was negligent in that it: (1) allowed and failed to remedy a dangerous condition which posed a serious risk of harm to motorists traveling upon the roadway by placing and allowing a pile of dirt to remain on the roadway; and (2) failed to warn motorists traveling upon the roadway by failing to [*134] place a permanent barricade and other warning signs in front of the pile of dirt at the dead-end of Spresser Street. Claimant, Administrator of the Estate of Kevin Kelly, seeks to recover property damage in the amount of $11,075, funeral expenses in the amount of $6,899.94, and compensatory damages for Kevin Kelly's two surviving children in the amount of $100,000 each.

Respondent denies that it negligently failed to maintain the roadway in a manner so as to allow a dangerous condition to be present. Respondent also denies it was negligent in failing to warn motorists by posting proper signage and/or barricades at the dead-end of the roadway. Respondent alleges that the sole proximate cause of the accident was decedent's intoxication or in the alternative that decedent's contributory negligence bars any award of damages to Claimant.

FACTUAL BACKGROUND

Kevin Kelly was killed on July 11, 1998, when the vehicle he was driving struck a pile of dirt which was placed by Respondent at the end of the dead-end portion of Spresser Street in Christian County, Illinois. Respondent had jurisdiction over that portion of Spresser Street in Christian County, which is south of new State Route 48 and includes a section of old State Route 48. Respondent was responsible for the maintenance of that roadway before, on, and after July 11, 1998.

Spresser Street extends approximately .7 miles from its intersection with new State Route 48 to the point where the mound of earth was placed across both lanes of the old highway. The speed limit along Spresser Street, on July 11, 1998, was 55 miles per hour.

Spresser Street is a rarely traveled road. At the time of the incident, its sole purpose was to allow access to the few homes located on Spresser Street between new Route 48 and the dead-end. The accident occurred at approximately 9:15 p.m. Jason Markert was the only passenger in the vehicle Kevin Kelly was driving.

At some time prior to the accident, Respondent erected three signs which warned of the road ending. A "dead end" sign was near the last intersection. A "road ending 500 feet" sign was 540 feet from the road's end. A "road ends" sign was at the end of the road. The final "road ends" sign was mounted to two barricades that were movable by an individual and not permanent. Skip Miller, an Engineer for IDOT, was responsible for placing and monitoring the signs on Spresser Street, both by driving past the site and while conducting routine maintenance of the area. At various times prior to the accident, Respondent became aware that the barricades holding the "road ends" sign had been moved without permission or damaged by vandals. On those occasions where Respondent's personnel became aware that the barricades had been moved or damaged, they repaired or replaced them. Respondent's personnel were not aware that the barricades were not in place on July 11, 1998, the day of the accident.

The pile of dirt placed at the dead-end of former State Route 48 was used by IDOT and other private citizens. The dirt pile covered the width of the roadway and was [*135] accessible through the grass, if conditions were dry, but was only accessible from a paved portion of the former roadway if the conditions were wet. As such, the pile of dirt was placed on the paved portion of the roadway to make it more easily accessible.

The accident investigation revealed that there was no evidence that Kevin Kelly swerved to avoid the collision with the pile of dirt or that he ever braked or otherwise slowed his vehicle prior to the collision. It is undisputed that barricades were not in place in front of the pile of dirt when decedent struck it on July 11, 1 998.

Decedent died at the scene and was therefore unable to make a statement to investigators as to the cause of the accident. The sole passenger in the vehicle of decedent, Jason Markert, was unable to give any explanation as to why decedent was unable to avoid striking the pile of dirt. Decedent's blood alcohol concentration at the time of his death was 0.20, two and one-half times the legal limit of 0.08.

Claimant disputes whether the "dead end " sign and " road ends in 500 feet" sign in place at the time of the accident were visible and therefore served to warn Kevin Kelly of the approaching dead-end. However, the deputy who responded to the scene of the accident stated that the signs were both visible the night of the accident.

The parties entered into a Joint Stipulation of the Parties that was presented at trial.

The parties agree that:

• Respondent had jurisdiction over that portion of Spresser Street in Christian County, which is south of new State Route 48 and includes old State Route 48 at 1200 North, and was responsible for the maintenance of that roadway before, on, and after July 11, 1998. • Kevin Kelly died when the truck he was driving hit a mound of earth that Respondent had placed at the end of Spresser Street. • The accident occurred at approximately 9:13 p.m. on July 11, 1998. • Spresser Street (old State Route 48) extends approximately .7 miles from its intersection with new State Route 48 to the mound of earth in question. Except for a pole lamp at the intersection of Spresser Street and new State Route 48, there is no artificial lighting on Spresser Street provided by Respondent. • The speed limit on Spresser Street, on July 11, 1 998, was 55 miles per hour. • Kevin Kelly was not familiar with the area. • Two Type I portable barricades had been placed on the pavement in front of the mound of dirt in question sometime between September 1, 1995 and December 31,1995. No barricades, however, were in front of the mound of dirt on July 11, 1998. • At the time of the accident Kevin Kelly's blood alcohol concentration was 0.20. • Kevin Kelly left as his sole heirs at law two children: Caleb Ross Kelly, born in 1995, and Lance Charles Kelly, born in 1992. • At the time of his death, Kevin Kelly had a life expectancy of 49 years. • Kevin Kelly was paying child support in the amount of $80 per week to the mother of his children, Lori Phillips.

[*136] • As a result of the accident, the Estate of Kevin Kelly suffered property damage in the amount of $11,075. • Also as a result of the accident, the Estate of Kevin Kelly incurred funeral expenses in the amount of $6,899.94.

There was conflicting evidence presented as to what type of warning signs and/or barricades are required in a situation such as this. Claimant alleged that Respondent had a duty to place permanently mounted signs and was negligent for placing movable barricades with a history of theft or vandalism.

Respondent presented evidence that there is no legal requirement for the installation of permanent signage. Respondent asserts that this is a decision subject to engineering judgment. When an engineering study has been conducted, Respondent alleges, the engineer is to make a decision as to the best manner in which to install warning signs. An engineering study includes routine patrolling of the road.

Skip Miller, an Engineer for IDOT, was responsible for placing signs on Spresser Street and was familiar with the site from his routine patrolling. Based on the usage of the roadway, the lack of accidents historically at the site, and the need of IDOT and private citizens to access the dirt pile, Miller determined that movable signs were the best method of marking the pile of dirt.

ISSUES

1. Whether Respondent was negligent in placing a mound of earth (pile of dirt) upon a dead-end roadway which was open to vehicular traffic?

2. Whether Respondent was negligent in failing to warn motorists of the danger posed by the pile of dirt by erecting sufficient warning signs and/or permanent barricades?

3. If Respondent was negligent, was decedent contributorily negligent to the extent that recovery should be barred?

ANALYSIS

Respondent has a duty to maintain highways in a reasonably safe condition.

The

burden of proof in a negligence case is on the claimant and the claimant must prove, by a preponderance of the evidence, that the State was negligent, and that such negligence was the proximate cause of claimant's injuries. Hoekstra v. State of Illinois, 38 Ill.Ct.Cl. 156, 160 (1985). To prevail on a claim, a claimant must prove that the respondent breached its duty owed to claimant and that respondent's breach was a proximate cause of the injury. Houston v. State of Illinois, 32 Ill.Ct.Cl. 143, 144 (1977). The State is not an insurer of every person on its highways. Miley v. State of Illinois, 50 Ill.Ct.Cl. 41, 47 (1997); Guy v. State of Illinois, 52 Ill.Ct.Cl. 23, 29 (1999). Claimant alleges that the State was negligent in allowing a dangerous condition to exist on the roadway and was negligent in failing to place permanent signage at the end of the roadway warning of this [*137] condition. Claimant further alleges that this negligence was the proximate cause of the fatal injuries to Kevin Kelly.

As noted, the State of Illinois is not an insurer of all persons traveling upon its highways. However, the State can be liable for dangerous conditions on a highway if the claimant proves certain factors. First, the claimant must prove, by a preponderance of the evidence, that the State had actual or constructive notice of the dangerous condition.

Westbrook v. State of Illinois, 52 Il.Ct.Cl. 260 (1999). Second, the claimant must prove that the State's negligence was the proximate cause of claimant's injury. Guy, 52 Il.Ct.Cl. at 29; Westbrook, 52 Il.Ct.Cl. at 266. Third, the claimant must prove that claimant was in the exercise of due care and caution for his or her own safety. Guy, 52 Il.Ct.Cl. at 29; Westbrook, 52.Ill.Ct.Cl. at 266.

Negligence is generally defined as the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence. Perryman v.

Chicago City Railway Co., 242 Ill. 269 (1909). Rikard v. Dover Elevator Company, 126 Ill.App.3d 438 (5th Dist. 1984). Illinois courts have already recognized that placing any movable object across the width of a highway, though it may be little used, without any warning signs or signals, and the failure to provide the required warning for a road that terminates are separate, negligent actions. In Gatlin v. State of Illinois, 39 Il.Ct.Cl. 51, 56 (1985), the Court affirmed the following quote from Hout v. State, 25 Il.Ct.Cl. 301 (1966): "There is no question that Respondent was negligent in placing a large pile of gravel across the width of a cement highway, little used as it may have been, without any warning signs, lights or signals. This Court has long held that although the State is not an insurer of the safety of persons in the lawful use of the highways, it is nonetheless under a duty to give warning by the erection of proper and adequate signs at a reasonable distance of a dangerous condition of which the State had notice, either actual or constructive." Similarly, in Vacala v. Village of LaGrange Park, 260 Ill.App.3d 599 (1st Dist. 1994), the court affirmed that the municipal corporation had been negligent as a result of its failure to provide warning signs or reflectors at the end of a terminating street.

In the instant case, the pile of dirt was placed at the dead-end of the road, past the point where any traffic had reason to proceed. The road itself was left open to the public to allow access to private homes, but the pile was beyond all of those homes. No traffic should have been proceeding to the point where the dirt pile was placed. The Claimant is not alleging that Respondent never placed a sign in front of the pile of dirt. It is undisputed that the State did place barricades in front of the dirt pile before the accident on July 1 1 , 1 9 9 8 . It is also undisputed that the State replaced the barricades whenever it had notice that they had been moved or damaged. Finally, it is undisputed that the State had no notice that the barricades were not in place on July 1 1, 1998, the date of the accident. The State was therefore not negligent in placing and replacing the barricades.

The Claimant, however, argues that Respondent was negligent in that the signs placed directly in front of the pile of dirt were movable, and Claimant alleges that the State had a duty to place permanently mounted signs.

[*138] Claimant's expert offered no opinion that the warning signs on Spresser Street were required to be permanently mounted. The Manual on Uniform Traffic Control Devices ("MUTCD") provides no legal requirement for installation of signage, but rather makes every decision subject to engineering judgment. When an engineering study has been conducted, the engineer is to make the decision as to the best manner in which to install warning signs. An engineering study includes routine patrolling of the roadway.

Based on the usage of the road, the lack of accidents historically at the site, and the need of IDOT and private citizens to access the pile of dirt, Skip Miller, Engineer for the Department of Transportation, determined that movable signs were the best method of marking the dirt pile.

The MUTCD did not place a mandatory requirement of permanent signage, but referred to the engineer's determination. In the absence of an absolute requirement of permanently mounted warning signs, Claimant must show that Respondent's decision to place movable signs was negligent. A.s such, the Court must determine whether or not the engineering judgment of Respondent's engineers was less than reasonable, or fell below the applicable standards. Larry Gregg, Chief of the Engineering and Standards Unit for IDOT, agreed that barricades should have been placed in front of the dirt pile. However, Gregg also testified that redundant signs are placed so that if something happens to one, the others will still be present to serve as a warning. Gregg testified that the two signs present at the time of Kevin Kelly's accident should have been sufficient to alert a reasonable driver to the hazard ahead.

Claimant

alleges that the accident would not have occurred had a permanent barricade been placed in front of the pile of dirt. However, it is undisputed that Kevin Kelly was intoxicated at the time of the accident, having a blood alcohol concentration of 0.20, being two and onehalf times the legal limit. Claimant has offered no evidence that decedent would not have struck the pile of dirt regardless of what signs were present.

It is not difficult for this Court to first find that Respondent was negligent in placing the pile of dirt in the middle of a roadway open to vehicular traffic. This section of roadway south of new State Route 48 was merely .7 miles long, had a speed limit of 55 miles per hour, and contained a large pile of dirt at the end of the roadway stretching across both lanes of travel. It should not be unforeseen that unsuspecting motorists, unfamiliar with the area, would be traveling down the roadway at the posted speed limit.

To exacerbate the danger, no barricades were present on the night of decedent's accident to warn oncoming traffic of the danger which lay ahead. Little, if any, evidence was presented as to the reason that the pile of dirt was placed where it was. No representative of IDOT identified a need for the dirt pile to cover the northbound traffic lane on Spresser Street.

In fact, they could not even remember why it was placed there in the first place. As there was no traffic coming from the north, the pile of dirt on the northbound lane could simply have been moved across the center line. Furthermore, the Respondent's claim that there was some consideration of accessibility to the pile of dirt is without merit. Whether the dirt on the northbound lane was moved north or south of the road or onto the southbound lane, the dirt would still have been accessible to traffic on Spresser Road. In fact, if the pile of dirt had simply been moved to the southbound lane, there would have been even more access from the concrete surfaced highway, as the northbound lane could have also been used for that purpose. It is unreasonable to suggest that the convenience of accessibility of the pile of dirt outweighs the risk or danger to the public on the roadway.

[*139] Although Respondent had no notice that the barricades were not in place on July 11, 1998, the barricades previously placed at that location were movable barricades and the Respondent knew that these barricades had previously been moved or damaged and had to be replaced.

Although the Manual on Uniform Traffic Control Devices provides no legal requirement for installation of signage and makes every decision subject to engineering judgment, Respondent's failure to install permanent barricades, which were unable to be moved or damaged by individuals, in front of the pile of dirt, was unreasonable and negligent. Based on the usage of the road, the lack of accidents historically at the site, and the need of IDOT and private citizens to access the dirt pile does not justify movable signs as the best method of marking the dirt pile. As such, Respondent was negligent in both placing the pile of dirt in the middle of the roadway and failing to place permanent barricades in front of the pile of dirt on the roadway.

Respondent has asserted the defense of contributory negligence in this case. As such, if Respondent was negligent Claimant's recovery should be reduced or barred, based on decedent's negligence in driving while intoxicated. In 1981, the Illinois Supreme Court adopted comparative negligence abolishing the common law rule of comparative negligence. Alvis v. Ribar, 85 Ill.2d 1 (1981). In 1986 the Illinois Legislature enacted modified comparative negligence in most negligence causes of action under a modified comparative negligence. Claimant is barred from recovering damages resulting from the Respondent's negligence if the Claimant was also negligent and that negligence was more than 50% of the proximate cause of damages. 735 ILCS 5/2-Ill 6(c). If the Claimant is contributorily negligent, but the negligence is less than 50% of the proximate cause of the damages proven, the award of damages must be reduced in proportion to the amount of fault. Comparative negligence principles apply when the negligent party is the decedent in a wrongful death or survivorship claim.

It is undisputed that decedent was intoxicated at the time of the accident, having a blood alcohol concentration of 0.20, being two and one-half times the legal limit in Illinois.

Evidence presented also shows that decedent, Kevin Kelly, drove past two visible signs warning that the road ended ahead.

Illinois Courts have consistently found that a driver's state of intoxication can be the sole proximate cause of an accident, even where defective road conditions are alleged.

Thompson v. County of Cook, 154 ILL.2d 374 (1993) (finding that a driver's actions in driving while drunk, speeding, eluding the police, and disregarding traffic signs, were the sole proximate cause of an accident, despite expert testimony that a curve where the accident occurred was not adequately marked); Billman v. Frenzel Construction Company, 262 IIl.App.3d 681 (1st Dist. 1994) (finding that a driver under the influence of alcohol was the sole proximate cause of an accident in the absence of evidence that the driver was misled by signage); Paul v. Illinois Department of Transportation, 52 Ill.Ct.Cl. 164 (1999) (finding a driver's intoxicated state broke the chain of causation from alleged inadequate signage at an intersection despite expert testimony that additional signs would have reduced the likelihood of an accident in the absence of evidence that the driver was [*140] confused by the signage). It is undisputed that decedent was quite intoxicated at the time of the accident. The violation of a statute designed to protect human life or property is primafacie evidence of negligence. Kalata v. Anheuser Busch Companies, Inc., 144 Ill.2d 425 (1991). The prima facie case may be rebutted by showing that a party acted reasonably under the circumstances. However, the record does not support the conclusion that decedent acted reasonably. He proceeded to drive down a dead-end road at full speed despite two signs warning him that the road ended. He also drove in a manner that did not allow him to take any evasive action despite having been warned that he was driving on a dead-end road. While Claimant has offered expert testimony that the missing barricade was the sole cause of the accident, Respondent has shown that decedent was driving at two and one-half times the legal blood alcohol concentration limit. Also, decedent ignored or failed to observe two warning signs before he struck the dirt pile. Respondent presented expert testimony that decedent's intoxication was the proximate cause of the accident. The fact that decedent never attempted to swerve or brake indicates that he never responded to the hazard, even when he was close enough to see the hazard in his headlights, even without a warning barricade.

Although this Court has found that Respondent was negligent in first placing the pile of dirt upon the roadway and second by failing to place permanently mounted barricades in front of the pile of dirt, decedent's contributory negligence outweighs that negligence by the Respondent. The Respondent placed two warning signs to alert driver's that the road ended ahead. Respondent also had placed movable barricades directly in front of the pile of dirt. Respondent's employees monitored these barricades and, if they were displaced or otherwise damaged, Respondent replaced them. Although it was possible and indeed prudent that permanently mounted barricades should have been installed, the Respondent did not fail to take any action to warn motorists about the hazard. In contrast, decedent took no action to provide for his own safety. Decedent was driving very intoxicated. Expert testimony presented indicated that such a level of intoxication would impair decedent's eyes, glare recovery, distance judgment, depth perception, peripheral vision, coordination, comprehension, reaction time, and color recognition. These effects would reduce a driver's ability to perceive and react to road signs. Although a driver may be able to perform routine tasks, they are incapable of reacting to new conditions. The evidence is clear that two warning signs alerted drivers to the dead-end ahead, and that both signs were visible on the night of the accident.

Decedent made no adjustments to his driving, based on the information on those two signs, either because he was unable to perceive them due to his intoxication, or because he was unable to determine the proper course of action due to his intoxication. Even when he was immediately upon the dirt pile, decedent made no effort to stop, as evidenced by the lack of skid-marks at the scene.

Decedent also took no evasive action; he drove directly into the pile of dirt. The only explanation for taking no evasive action, even when close enough to see the dirt pile, is that decedent was so impaired that he was unable to see what an unimpaired driver would have seen, or he was beyond the level of intoxication where he could react.

The two signs advising drivers that the road ended were intended to prevent drivers, particularly those not familiar with the area, such as decedent, from treating the [*141] dead-end road like an open road. A third sign, attached to a barricade or other warning device, placed in front of the pile of dirt would have served the purpose of delineating the difficulty in seeing the hazard. A reasonable driver, however, should already have been proceeding with caution after having been warned of the dead-end road. In this situation, decedent proceeded entirely without caution and struck the dirt pile head on. It is not clear that even if barricades had been present that the accident would have been avoided, as there was testimony that intoxicated drivers frequently collide with well-marked or other obvious objects. It is reasonable, therefore, to conclude from the evidence presented and the specific facts and circumstances of the accident, that decedent's intoxication was a major contributing factor to the accident. The events surrounding this incident are certainly tragic. It is not difficult for this Court to find that Respondent was negligent in placing the pile of dirt upon the roadway and was also negligent in properly warning motorists upon the roadway of the impending danger by installing permanently mounted barricades. However, Kevin Kelly's negligent conduct while driving while intoxicated outweighs Respondent's negligent conduct.

CONCLUSION

This Court therefore finds that decedent's negligence was more than 50% of the proximate cause of his injuries or damages and, as such, Claimant is barred from any recovery.