Betty Elliott v. State of Illinois

OPINION

MCGLYNN, J. This case involves a pedestrian fatality on May 14, 2013, on a highway in Swansea, Illinois. James R. Gaskill died after being struck by an unmarked Illinois State Police Chevy Tahoe being driven by Trooper Shawn Dannenbrink on the southbound side of Illinois 159. A hearing was held before Commissioner Andrew Ramage.

Claimant Betty Elliott, Administrator of the Estate of the Decedent and mother of the Decedent, filed a two count Complaint. Count I is a Wrongful Death-Negligence claim, and Count II is a Survival Act-Negligence claim. Claimant claims that Trooper Dannenbrink drove at a speed that is greater than reasonable and proper, failed to keep a proper lookout for the Decedent on the roadway, and failed to reduce his speed to avoid striking a pedestrian.

SUMMARY OF EVIDENCE PRESENTED AT HEARING

At the hearing, Claimant presented eyewitness testimony via evidence deposition, of eyewitnesses Kendall Bolen and Teresa Snodgrass. They testified that the Decedent, James R. Gaskill, was the leader of a truck driver convoy the purpose of which was to transport fair carnival equipment around the State of Illinois. On the early morning in question, the convoy, consisting of at least seven or eight large commercial vehicles was driving northbound on Illinois Route 159 to drop off the carnival equipment at the next fair. One of the trucks was experiencing some trouble, so the Decedent, who was driving the lead vehicle, had the convoy pull into the middle turn lane on Route 159. Route 159, at the point of the collision, is a four lane state highway with two lanes of traffic going north and two lanes of traffic going south with a middle turn lane. The convoy vehicles had their lights and flashers on. Mr. Gaskill got out of his truck and proceeded to walk down the road near the centerline of the southbound lanes on Illinois Route 159 in order to check on the other vehicles.

On the night in question, Route 159 was illuminated by streetlights as it is a commercial area, the temperature was in the upper 50s, and it was clear and dry. The Decedent was wearing a bright yellow shirt. He was walking with his back to any potential oncoming southbound traffic on Route 159. He was talking on his cell phone, apparently to one of the other drivers just prior to the collision. Ms. Snodgrass testified that the Decedent was walking normally down the road and was not running or in a hurry. Ms. Snodgrass testified that she observed a vehicle coming [*113] toward the convoy traveling southbound that was coming really fast in the southbound left hand lane, nearest to the convoy parked in the turn lane. She attempted to warn the Decedent, but did not have time. She witnessed the impact and heard a loud sound at impact, but did not see what happened immediately after the impact. She did observe the Decedent’s body near the curb on the right hand side of southbound traffic after the impact. Kendall Bolen testified that he witnessed the Decedent get hit near the centerline of southbound Route 159. The point of impact on the convoy was near the middle of the convoy at least five trucks back. Mr. Bolen saw the vehicle coming fast, but did not have time to warn the Decedent.

Trooper Dannenbrink was called by Claimant as an adverse witness. He testified that he has been a Trooper since 2006 and on the night in question was hauling a DUI suspect to the local jail. Traffic was not very heavy. There was a small hill north of where the trucks were parked. He admitted that he was in the left southbound lane at the time of impact. Trooper Dannenbrink testified that his head, while oriented forward, was looking to the left towards the convoy. He also testified that he did not see the Decedent who was walking near the dashed line which would have been near the right side of Trooper Dannenbrink’s SUV which was traveling southbound. He also testified that it would have been possible for him to move over to the right lane, but did not think he needed to do so. Once the Trooper had come up the hill, he noticed the trucks with their lights on in the center lane. Trooper Dannenbrink’s report indicates that the trucks were parked illegally. Once he saw the trucks, his attention became focused on them. As he was passing the trucks, his vehicle collided with something. He did not know what it was at first. After stopping his vehicle, he briefly backed up and then stopped and got out. He realized that he had hit a person. Trooper Dannenbrink indicated that he simply did not see the person as his attention was focused on the convoy trucks. He could not provide any details as to what the Decedent may have been doing or where he may have been standing, as he did not see him.

Trooper Dannenbrink testified that he was not in a hurry and does not know how fast he was traveling. The speed limit on that road is 45 miles per hour. The Illinois State Police Accident Reconstruction Report estimates that Trooper Dannenbrink was traveling 45 to 51 miles per hour. Trooper Dannenbrink did not dispute the ISP speed calculations.

Betty Elliott testified that she is the mother of the Decedent and is the Administrator of his Estate. The Decedent was 46 when he died. She helped him with the carnival ride moving business. Mr. Gaskill was divorced and has four children, one of whom has passed away, and three grandchildren. She had a very close relationship with the Decedent and his son, Ty, who lived with her at the time of the incident.

Ty Gaskill, 22, the son of the Decedent, testified that he was very close to his father and grandmother and was around his dad every day. His dad supported him financially and emotionally. He misses his father very much.

The following exhibits were admitted into evidence at the trial: Exhibit 1 (Actuarial Life Tables), Exhibit 2 (Kendall Bolen Evidence Deposition), Exhibit 3 (Teresa Snodgrass Evidence Deposition), and Joint Exhibits 1 through 16 and 16a through 19. The State’s sole witness was Trooper Dannenbrink whose testimony is summarized above. Claimant did not present a rebuttal case.

[*114] ANALYSIS

Applicable Law

In any negligence action, the Court must examine the following four elements: duty, breach of duty, causation, and damages. Hoeskstra v. State, 38 Ill. Ct. Cl. 156 (1985): Houston v.

State, 32 Ill. Ct. Cl. 143 (1977). The question is whether Trooper Dannenbrink breached his duty toward the Decedent.

Trooper Dannenbrink’s Actions

On the night in question, the roadway was at least partially lighted. The Decedent was a large man (over 300 pounds) and was wearing a yellow shirt. The very large trucks had their lights on and at least some had their flashers on. While Trooper Dannenbrink had just come over a small hill when he observed the trucks, he did not indicate that cresting the hill obstructed his vision. He was traveling between less than 1 to 6 miles over the posted speed limit at the time of the collision. There is no evidence that he was distracted by the suspect in the back of his vehicle, that he was responding to a call related to these vehicles, that he was on his cell phone, that he was on his computer or otherwise engaged in any activity except driving his vehicle.

Trooper Dannenbrink did not testify that, despite seeing the illegally parked vehicles, he was going to pull over and investigate. There is no evidence that any person was outside of their vehicle except the Decedent who was walking on the road, according to the two eyewitnesses.

Trooper Dannenbrink testified, and the accident reconstruction report and eyewitness testimony confirms, that he did not slow down prior to colliding with the Decedent. Trooper Dannenbrink did not see the Decedent walking on the roadway.

The convoy was illegally parked in the center lane of the road. Therefore, it is reasonable that Trooper Dannenbrink had his attention focused on the convoy while driving past it to see if all in the convoy were safe or whether there was a situation which needed to be investigated and back up called. In addition, the evidence indicates that the Decedent had his back turned towards Trooper Dannenbrink’s vehicle while he was walking. That made him harder to see. It was also around 1:30 in the morning with hardly any traffic, and there was a sidewalk on the west side of the road. Therefore, a driver would not be expecting someone to be walking down the middle of the road under those conditions. If anything, one would reasonably expect persons to be out of or near their vehicles, and not in the middle of the road. A reasonable driver also would not expect a person if they were walking in the road to be walking with their back turned towards the traffic and talking on their cell phone. This collision occurred at least halfway through the convoy. At 51 miles per hour, Trooper Dannenbrink’s vehicle was approximately moving 75 feet per second; therefore, the passage of time from when he first encountered the convoy until he collided with the Decedent was a few seconds, at most. On the other hand, Trooper Dannenbrink had some time, had he looked down the road in his lane, to see the Decedent; and could have switched to the right lane upon seeing disabled trucks in the turning lane. The Decedent placed himself in an exceedingly dangerous situation. The Decedent was walking illegally on a highway, at night, with his back turned toward oncoming traffic, talking on a cell phone near the middle of the lanes of traffic closing on him from behind, and the Decedent, as an experienced [*115] driver, should have known better. In addition, there was a sidewalk which Decedent could have and should have utilized. Moreover, the Decedent was the lead driver of the convoy. Rather than park the convoy in an alternate, safe (or safer) location such as a parking lot (or even near the guardrail in the right northbound lane), the Decedent apparently chose to have the convoy illegally park in the center of the highway in a turn lane. There was no evidence presented that the convoy had displayed the required flares or portable emergency signals, thus making it harder to see. A reasonable driver simply would not expect a pedestrian, if walking in this situation, to be walking near the center of the road, especially at night. If anything, a driver might expect a pedestrian to be out of his vehicle near the vehicle. Further, because the Decedent was walking with his back to traffic, no driver would have been able to see his face.

The Decedent broke many Rules of the Road, including the following traffic laws: 625 ILCS 5/11-1301(a) (parked and left his vehicle in the roadway when it was practical to park and leave his vehicle off the roadway); 625 ILCS 5/11-1002(b) (Decedent left a place of safety and went into the path of a moving vehicle so as to constitute an immediate hazard); 625 ILCS 1003(a) (failed to use a crosswalk and failed to yield the right-of-way to Trooper Dannenbrink); 625 ILCS 5/11-1007(a) (failed to walk on the available sidewalk); 625 ILCS 5/11-1007(b) (failed to walk on the available shoulder if sidewalk not available); 625 ILCS 5/11-1007(c) (failed to walk as close to the edge of the roadway as possible, if sidewalk and shoulder not available). Since this was a four-lane highway and not a two-way roadway, it does not appear that the Decedent was required to walk on the left side of the road as provided by this Section.

The Decedent also failed to yield the right-of-way to Trooper Dannenbrink as required by 625 ILCS 5/11-1007(d). To the extent that the convoy would be considered disabled vehicles under 625 ILCS 5/12-702(a) and (c), although it was unclear how many minutes had elapsed between the time the vehicles had pulled over and the collision, the convoy would have had a duty to display flares, electric lanterns, or red portable reflectors as required by Section 5/12-702(c) within 15 minutes of becoming disabled.

In short, the Decedent failed to act as a reasonable prudent person when he walked with his back towards oncoming traffic while talking on his cell phone and broke numerous Rules of the Road for vehicles and pedestrians. Therefore, the Decedent was negligent and was the proximate cause, at least in part, of his own death.

The trooper did not expect to see a person walking on a highway in a 45MPH speed zone in a through lane of traffic, particularly at night. The Decedent’s actions were exceedingly dangerous. While the evidence tends to suggest that the Decedent was hit while walking on the far right edge of the left southbound lane near the dashed line, it is not clear whether the collision would have occurred or not had Trooper Dannenbrink been driving in the right lane. The Court concludes that Claimant did not sufficiently prove this fact. It was indeed reasonable for Trooper Dannenbrink to be looking at the convoy, at least for some period of time, as it was also a potential hazard to him as a driver, was illegally parked, and was a very unusual occurrence. It was reasonable to assume a driver may be near a disabled truck, but not walking down the middle of a through lane on a highway with his back to oncoming traffic. A few seconds, at most, elapsed from the time that the Trooper first saw the convoy until the collision occurred. So, this all happened very quickly. Trooper Dannenbrink did not even know what he hit at first and did not slow down before the impact. Even if Trooper Dannenbrink had ignored the convoy and [*116] looked ahead, it is not clear he would have had time to evade the pedestrian walking in his lane.

The Court concludes that Trooper Dannenbrink’s conduct was a proximate cause of the injuries and damages for which recovery is sought. However, the Court further concludes that the Decedent’s contributory fault exceeds 50%. This claim must therefore be denied.

CONCLUSION

The Court acknowledges the tragic situation that occurred here and that the Decedent leaves behind devoted children and grandchildren, and a loving mother. The loss that this has caused the family cannot be overstated. However, the Court must apply the law to the evidence presented. Judgment is entered in favor of the Respondents.