Ginger R. Young and John a. Young v. State of Illinois

OPINION

GAGLIARDO, J. The case involves a claim against Respondent State of Illinois’ Department of Transportation (“IDOT”), for negligent snow removal. Specifically, Claimants, Ginger and John Young, allege that on February 12, 2014, IDOT allowed a pile of snow to cover the west side of the median at the intersection of Old Route 36 (West Harrison Road) and Glasgow Road, just west of the City of Decatur. Claimant, Ginger Young, was the driver of a black Cadillac sedan heading westbound on Old Route 36 that collided with another vehicle driven by Lindsey King (“King”), who was traveling in the right eastbound lane of Old Route 36 in a yellow Ford Mustang. Ginger Young, who was traveling to her nearby home, was in the process of executing a left-hand turn from the median (on the south side of westbound Old Route 36) across the two eastbound lanes of traffic on Old Route 36 and onto southbound Glasgow Road when her vehicle was struck by the King vehicle toward the rear of the passenger side of the Young vehicle. The photos presented in evidence establish that Ginger Young’s vehicle sustained severe damage to the rear passenger side at the rear wheel. Claimants are each claiming in excess of $100,000 for their injuries, but they acknowledge that the statutory cap of $100,000 applies here for each of them.

The Respondent denies the allegations that IDOT negligently maintained the snow pile in question and contends that, in any event, Claimant, Ginger Young, was more than 50% negligent, thus precluding her claim and that of her spouse, John Young, for loss of consortium.

I. Evidence Adduced at the Hearing The Parties do not dispute that IDOT was responsible for the maintenance of the intersection in question (Old Route 36 and Glasgow Road) and that IDOT created the snow pile in the median some time prior to February 12, 2014. The Parties also do not dispute that Claimants’ left-hand-turning vehicle collided with the eastbound straight-moving King vehicle in the right eastbound lane of Old Route 36 while Claimant Ginger Young was attempting to execute a left-hand turn across the eastbound lanes of Old Route 36 onto Glasgow Road.

However, the Parties dispute whether IDOT negligently maintained the snow pile in question, and whether Claimant, Ginger Young, was more than 50% negligent in executing the left turn.

Claimants’ Exhibit 12 contains a summary of Ginger Young’s total medical expenses relating to the collision, as of August 14, 2020. The total expenses are $392,388.33. The [*109] Respondent has admitted the genuineness of the medical records and expenses; has admitted that the expenses were reasonable and necessary; and has admitted that the expenses were fair and reasonable charges for the services performed. (Cl. Exh. 16, pp. 427-428).

A. Claimants' Evidence

Claimants presented five witnesses: Claimant Ginger Young (driver, age 77), and Claimant John Young (Ginger's husband, age 78), testified at the hearing. The testimony of Lindsey King (driver of eastbound vehicle on Old Route 36), Kathryn Young (daughter of Mr. and Mrs. Young and passenger in Ginger Young's vehicle at the time of the collision), and Theresa Dial (eyewitness from her northbound vehicle on Glasgow Road, just south of where the collision occurred), was presented through their evidence depositions. A summary of the testimony is set forth below.

1. Ginger Young (Driver) Ginger Young testified that the only thing she could remember about the collision is that she wound up in the ditch. (Tr. 15). Her memory was clearly impaired in various ways. For example, she cannot remember her injuries (Tr. 15-16), which are obvious and undisputed. She can no longer cook or clean, and uses a walker. (Tr. 16-17). She suffered multiple injuries as a result of the collision, including broken bones, partial paralysis, a week-long coma, and permanent brain and memory loss. (Cl. Exh. 12).

2. John (Jack) Young (Spouse of Ginger Young) John Young retrofitted their home to accommodate his wife's physical limitations.

Ginger Young can no longer cook, do laundry, housework, cannot concentrate, does not know what she is watching on TV, and cannot drive. Prior to the collision, she did all of this. John Young drives her everywhere and assists her in bathing. She initially needed help eating, but does not now. She has no personality now. They cannot make love anymore or go to dances like they used to do. She can only leave the house for very short periods of time. He likewise has no social life. He spends at least eight (8) hours a day caring for her.

3. Lindsey King (Driver of the other vehicle) Ms. King, age 35, was driving the yellow Mustang which collided with Ginger Young's vehicle. On the day in question, February 12, 2014, the weather was clear. She was traveling in the right eastbound lane of Old Route 36 (a 4-lane road with 2 lanes on each side). She could not see the Young car in the median behind the snow before it made its turn. She estimates the snow pile was 4 feet tall and as wide as the median. King did attempt to slam on her brakes, but could not avoid the collision. Ms. King testified, "…that wreck would have never happened if all that snow wouldn't have been right there." (Tr. p. 36).

[*110] 4. Kathryn Young (Passenger in Claimants’ vehicle) Kathryn Young, 49, is the daughter of Ginger and John Young, and was a passenger in the car on the day in question. She testified as to the photographs of the cars and the specifics as to where the collision occurred. She did not see the yellow Mustang until immediately prior to the collision. She estimates the snow pile was 5 feet high. It is undisputed that Ginger Young stopped her car near the snow pile before making her left turn across Route 36. (Tr. pp. 57, 76 (testimony of passenger Kathryn Young and a neutral, third-party witness, Theresa Dial)). Kathryn Young further testified that her mother was creeping - which she described as moving less than 5 miles per hour - as she was making the left turn. She also testified as to her mother’s injuries, including brain surgery, bowel problems, memory loss and two facial fractures. When her mother woke up from the 8-day coma, she thought she was in the year 1971.

5. Theresa Dial (Independent eyewitness) Theresa Dial, 55, was a witness to the collision. She was just south of the site of the collision. She was heading north on Glasgow Road towards the eastbound lane of Old Route 36. She saw the vehicles collide, and had a good view of the collision. Although the roads were clear of snow and ice, she estimates the snow in the median was 5½ feet tall. She testified she could not see the eastbound oncoming traffic on Old Route 36 when behind the pile of snow. Dial said that the snow pile had been in the median for “a good week” prior to the collision. (Tr. p. 81).

Respondent presented two witnesses, Macon County Sheriff’s Deputy David Pittinger and IDOT Lead-Lead Worker, Todd Edward Williamson.

B. Respondent’s Evidence

1. Macon County Deputy David Pittinger

Deputy Pittinger has been a Macon County Sheriff’s Deputy for 11½ years. He was the patrol officer assigned to respond to the scene. He took pictures of the median and snow pile in the evening following the collision which occurred in daylight hours. (Resp. Exhs. 9-12). Specifically, he took photos from the driver’s seat of his vehicle, which he believed was positioned similarly to how the Young vehicle would have been making the left-hand turn. Pittinger testified that he did not know the height of the snow pile, but it was not as tall as the “Do Not Enter” sign. His photographs also depict cars with headlights which are visible from the vantage point of the Young vehicle. Pittinger testified that the pictures of the snow pile, taken within hours of the accident, were not altered. On cross-examination, Deputy Pittinger acknowledged the possibility that the snow pile could have obstructed the view of the Young vehicle. He did not measure the distance from the photo to the snow pile. No photos were taken from the opposite direction, i.e., from the vantage point of the westbound yellow Mustang. Pittinger did not speak to the eyewitness, Theresa Dial. Pittinger was not asked by either Party to express his opinion of whether the Young vehicle would have been able to see the yellow Mustang prior to impact.

[*111] 2. Todd Edward Williamson (IDOT employee) Todd Edward Williamson is a 19-year IDOT worker from the IDOT Decatur Yard. His title is Lead-Lead Worker, meaning he is the head Lead Worker. He is very familiar with the intersection in question. He testified as to the snow removal process and the process of knocking back or reducing the size of snow piles. Williamson testified that at least 8.5 inches of snow fell during a winter storm on February 4 and February 5, 2014. (Tr. pp. 116-119; Cl. Exh. 16). This was one week prior to the collision. Respondent did not specifically establish how long the pile of snow had been sitting there, but admitted in Requests to Admit (Cl. Exh. 16), that it created the pile sometime prior to February 12, 2014. The last snow removal record admitted into evidence was February 9, 2014, three days before the collision, however, it is unclear whether the snow removal was done around this median and where the snow from that removal was placed, e.g., on the side of the road or on the median. IDOT’s snow and ice control manual indicates that snow is not to be left in the median. (Cl. Exh. 9, p. 102, Section 6-200.7.1). However, Williamson said that on heavy snows, it is sometimes impossible not to put snow in the median.

On February 13, 2014, the day after the collision, Williamson was called to the scene because of a sight distance complaint with that intersection. The snow pile was taken down the next day at his direction. Williamson did not specify why the snow pile was taken down. No objection was made by IDOT to this testimony as a subsequent remedial measure.

II. Analysis

There is no dispute that: the collision took place; a snow mound obscured (at least partially) the vision of driver Ginger Young; Mrs. Young suffered severe and permanent personal injuries (e.g., was initially in a coma, suffered fractures, partial paralysis and has a permanent brain injury which affects her memory); and that the snow mound was in a position that did not comply with the IDOT Manual. The Court previously concluded in its ruling on a dispositive motion that there was no fault that had been established on the part of King. Indeed, no evidence was introduced at the hearing that King was at fault for this collision.

The State is not an insurer of all accidents which occur on its highways; however, it does have an obligation to keep its highways in a reasonably safe condition. Olson v. State, 48 Ill. Ct. Cl. 218, 238 (1995), citing Interstate Bakeries Corp. v. State, 29 Ill. Ct. Cl. 446 (1974). “The duty to exercise reasonable care in the maintenance and care of its highways is so that defective and dangerous conditions likely to injure persons using highways should not exist.” Id., citing Webee v. State, 38 Ill. Ct. Cl. 164 (1985).

To prevail against the Respondent, Claimants must prove that the Respondent: 1.) had a duty towards them; 2.) that the State breached that duty; and 3.) that the breach was the proximate cause of Claimants’ injuries. Olson, 48 Ill. Ct. Cl. at 238.

The State is not liable unless the Claimant proves that the State has either actual or constructive notice of the dangerous condition for a sufficient time prior to the injury to have taken corrective action. Olson, at pp. 238-239, citing Webee, 38 Ill. Ct. Cl. at 168. “The State [*112] may breach its duty to maintain a highway in a reasonably safe condition if the Claimant establishes that the State had actual notice of the defect which caused the accident and takes no action to correct the defect or warn of the defect.” Scott v. State, 50 Ill. Ct. Cl. 116, 120 (1998), citing Pigott v. State, 26 Ill. Ct. Cl. 263 (1968). “A determination of whether the State had constructive notice depends on the facts of each case. Constructive notice is imputed to the State where a condition by its evident nature, duration and potential for harm should necessarily have come to the attention of the State, so that the State should have taken some action.” Scott, 50 Ill.

Ct. Cl. at 120-121, citing Stills v. State, 41 Ill. Ct. Cl. 60 (1989).

As in Scott, the primary questions before us to determine are: whether the snow pile was a hazardous condition which created a duty on the part of the State; whether acts or omissions by the State constituted a breach of that duty; and whether that alleged breach, or Ginger Young’s acts, were a proximate cause of Claimant’s injuries and, if so, to what extent.

As to the issue of constructive notice, “[t]here is no hard and fast rule in determining when it can be said that the State had constructive notice of a dangerous condition and each case must be decided on its own particular facts.” Olson at 240, citing Bugle v. State, 26 Ill. Ct. Cl. 173 (1967). Here, Respondent admits that it created the snow pile in question at some point prior to February 12, 2014 (Cl. Exh. 16, p. 5, #2), but it could not identify which IDOT employee created the pile or when it was created. (Cl. Exh. 16, p. 5, #2). The undisputed evidence was that it had not snowed at all (other than a ¼ inch a few days before) in at least a week prior to the collision. Mr. Williamson’s testimony as well as Respondent’s Exhibit 9 (IDOT p. 144) establish that snowplows were back on Route 36 on February 9, 2014, when there was only an additional ¼ inch of snow. Respondent argues that, based solely on the dates that snow was plowed (February 5 and 9), IDOT did not have enough time to clear the median. However, neither Williamson, nor anyone from IDOT, testified that there was not time to remove the snow pile.

As discussed more fully below, the Court concludes that the evidence, including IDOT’s admission that it created the snow pile, establishes that IDOT had actual and/or constructive notice of the snow pile. The Court further concludes that, based on eyewitness testimony and the IDOT snowfall records, the pile of snow had been there for at least a week prior to the collision.

Moreover, after considering the credibility of the witnesses and evidence presented, the Court concludes that IDOT should have noticed the snow pile in the median at least by February 9 and that there was sufficient time to address or “knock back” the snow pile.

A. Duty

It is undisputed that IDOT has a duty to remove snow from its highways as part of its duty to maintain highways and that is has a duty to do so in a reasonably safe manner. The IDOT manual required that snow piles not be placed in medians. Based on the above testimony and authorities, IDOT created the snow pile and had actual, or, at least, constructive knowledge of its existence. The Court concludes the 4-6 foot snow pile that spanned the entire width of the median was a hazardous condition. Accord, Schuett v. State, 36 Ill. Ct. Cl. 61 (1984) (8-foot snow pile hazardous); Olson, 48 Ill. Ct. Cl. at 232, 242 (4.3-foot snow pile partially obscured intersection); Ziencina v. County of Cook, 188 Ill.2d 1, 14 (1999) (snow pile taller than vehicle obstructed vision of drivers in the intersection). Ginger Young could not see around the snow [*113] pile as she was making a left turn. Based on the above, IDOT had a duty to maintain that intersection in a reasonably safe manner, including making sure that the snow pile in question was maintained in a reasonably safe manner.

B. Breach of Duty The snow pile was between 4-6 feet high. It had been there at least a week prior to the collision, contrary to the IDOT manual. No evidence was presented that any sort of emergency prevented IDOT from removing the snow pile or reducing its size. However, to remove the snow pile, it required special equipment. The drivers who were assigned to snow route 8, which included this intersection, could not have cleared the snow pile while they were out plowing. (Tr. pp., 127-28). Instead, when the pile was ultimately removed, IDOT had to dispatch a crew and machinery including a grader with a wing plow, a loader or a backhoe. (Tr. pp., 126-28). There was no evidence presented that IDOT's operations were such that it could not have dispatched this equipment prior to the date of the collision. Therefore, the Court concludes that IDOT breached its duty to Claimants by not addressing the sight issue created by the snow pile.

Williamson was not asked by either party why he had the snow removed the day after the collision, and the Court will not speculate or draw any inference from the removal of the snow.

Moreover, while there was no objection by Respondent to the evidence about the pile of snow being ordered removed the next day (February 13), as a subsequent remedial measure, the Court places little weight on such evidence. See, Herzog v. Lexington Twp., 167 Ill.2d 288, 300-301, 657 N.E.2d 926, 932 (1995) (a subsequent remedial measure is not admissible to prove negligence; however, it may be admitted, for example, to show the feasibility of precautionary measures when disputed by defendant (other citations omitted)).

C. Proximate Causation

There was undisputed testimony that the pile of snow encompassed the entire width of the median and was 4-6 feet high. The pictures taken immediately following the collision confirm this. Based on the pictures, a person's vision attempting to make a left-hand turn was at least partially obscured by the pile of snow. Kathryn Young testified that her vision as a passenger was obstructed by the pile, and eyewitness Theresa Dial also testified that her vision was completely obstructed by the snow pile. Unfortunately, due to Ginger Young's medical condition, there is no testimony from her as to what she recalled about her view of the eastbound lanes of Old Route 36 or her actions in driving the car as she was making the turn. The collision occurred during daylight, and there were no other unsafe road conditions (such as snow and ice on the pavement). There was no negligence established on the part of the driver of the oncoming vehicle. It is undisputed that Ginger Young stopped her car near the snow pile before making her left turn across Route 36. (Tr. pp. 57, 76 (testimony of passenger Kathryn Young and a neutral, third-party witness, Theresa Dial)).

It is also undisputed that Ginger Young proceeded slowly in making her turn. Kathryn Young testified that her mother "creeped" forward, which she defined as moving 5 miles per hour or less. (Tr. p. 62). Lindsey King (the driver who hit Ginger Young's vehicle) could not recall much about the speed of the Young's car as it turned left across Route 36, but testified that [*114] the vehicle was not going fast. (Tr. p. 40). Ms. King testified, “…that wreck would have never happened if all that snow wouldn’t have been right there.” (Tr. p. 36) Finally, Theresa Dial, who witnessed the collision, was making the same left-hand turn several hours later across Old Route 36. She knew about the snow pile and how it obstructed the driver’s view of oncoming traffic. She was also in a much better position to see around the snow pile since she was driving an SUV (Chevy Blazer) which had a 2.5-inch lift on it. (Tr. p. 80).

Therefore, the Court concludes that the presence of the snow pile and IDOT’s failure to remove it or reduce its size created a sight obstruction which prevented Ginger Young from safely crossing the intersection and that this was a proximate cause of the collision between Ginger Young and Lindsey King.

The Court must now consider the contributory negligence, if any, of Ginger Young.

D. Contributory Negligence

“Illinois law is well settled that a person approaching a place of danger has a duty to do so cautiously, and with a proper degree of care for their own safety. A person has no right to knowingly expose himself to danger and then recover damages for an injury which he might have avoided by the use of care for his own safety.” Scott, 50 Ill. Ct. Cl. at 129, citing Ames v.

Terminal Railroad Assn., 322 Ill. App. 187, 75 N.E.2d 42 (1947).

Claimants’ position is that Ginger Young was not contributorily negligent; her view was completely blocked by the snow pile, and she used “ordinary precaution” by stopping in the median before turning and creeping (meaning she was moving 5 MPH or less while executing the turn). (Tr. pp. 57-62). While Ginger Young could not recall the incident due to her memory loss, her daughter, passenger Kathryn Young, testified that, “I looked up out the window, and right as we were going past the snow there was a car right there and you couldn’t see it because of the snow. And by the time I looked out the window, the car was right there, and had hit right behind me on the passenger side of the car.” (Tr. p. 57).

Respondent argues that Claimant was not cautious enough before executing the turn. The Respondent also suggests that since Claimants’ vehicle was hit in the right lane of the oncoming traffic - as opposed to the left hand lane which was closer to the snow pile - Claimant did not maintain a proper look out for oncoming traffic and was not exercising as much caution as she should have. While Claimants maintain that Ginger Young “creeped” immediately prior to executing the left hand turn, and despite her best efforts, she was unable to see oncoming traffic until she was actually in the road, Respondent maintains that if Claimant was unable to adequately see, she should have declined to make a turn at this intersection because she admittedly knew it was dangerous as evidenced by the fact that she could not see oncoming traffic.

This case presents a close question regarding the issue of contributory negligence of the Claimant, Ginger Young. In resolving this question, the Court will carefully examine and apply previous precedent.

[*115] Respondent cites four cases which it contends bar this claim based on contributory negligence of Ginger Young: Schmit v. State, 59 Ill. Ct. Cl. 246 (2007); Olson v. State, 48 Ill. Ct.

Cl. 218 (1995); Calvert v. State, 38 Ill. Ct. Cl. 104 (1985); Louis v. State, 35 Ill. Ct. Cl. 741 (1983). Claimants contend that these cases are distinguishable in material respects from the instant case, and they are correct. Claimants likewise rely primarily on Olson and also cite Ziencina v. County of Cook, supra, in support of their claim.

In Schmit, unlike here, the Claimant actually saw the other vehicle, but the Court found that Claimant was not cautious enough. The Court also concluded that Claimant failed to prove that there was a sight obstruction in the median. Finally, the Court observed that IDOT did not have sufficient time to clear the obstruction. Based on these findings, the Court did not opine on the issue of contributory negligence. Schmit, 59 Ill. Ct. Cl. at 253-255.

In Calvert, piles of snow, which had accumulated over a 3-4 day period in which 10-12 inches of snow fell, hindered the driver of the vehicle preventing the driver from seeing oncoming traffic as he approached the intersection to make his left turn. The driver testified that he slowed his vehicle down to a barely forward movement and crept out into the oncoming traffic lane to see if there were any approaching vehicles. When he did so, a vehicle approaching at a high rate of speed struck the automobile of the Claimants. As a result of this collision, the Claimants were seriously injured. Calvert, 38 Ill. Ct. Cl. at 105. The case turned on the lack of proof that IDOT had a reasonable amount of time to clear the snow. Calvert, 38 Ill. Ct. Cl. at 106-107. The Court so held because the “Respondent must be given a reasonable length of time after highways have been cleared to remove obstructions such as those in this case.” Id. The Court also observed, that to hold otherwise, would, contrary to the law in Illinois, make IDOT “an insurer against all accidents.” Id. at 106. The Court did not address whether the driver’s actions of creeping would have been sufficient to relieve Claimant of contributory negligence had Respondent had sufficient time to clear the snow.

In Louis, although the Claimant was found to have been as cautious as possible in executing the turn by “easing” his vehicle into the intersection, the snow obstruction was created during an ongoing severe snowstorm. The Court held, “the State did not have an opportunity to remove the snowbank it had created by piling the snow in the area which obstructed Claimant’s view. Respondent, if it had chosen to remove the snow that was being piled, would have diverted its crews to that task rather than opening the highways and would therefore have caused even greater difficulty for the traveling public. Respondent must be given a reasonable length of time after the highways have been cleared to remove obstructions such as those in this particular case.” Louis, 35 Ill. Ct. Cl. at 745-746. Despite the language the Court used to describe Claimant’s actions, the Court did not reach the issue of contributory negligence as it ruled the State was not negligent. Louis, 35 Ill. Ct. Cl. at 746.

In Olson, cited by both of the Parties here in support of their positions, the Court ultimately concluded that IDOT had constructive notice that a 6-7-foot mound of snow was present and partially obscured the Claimant’s vision. 48 Ill. Ct. Cl. at 242. However, the Court gave more weight to a disinterested witness who - contrary to the Claimant’s testimony - testified the Claimant did not actually stop and inch out into the intersection; therefore, the Court found the Claimant was greater than 50% at fault and barred any relief. Id. at 243-44. Olson very [*116] much turned on the care with which the Claimant failed to exercise in attempting to execute a turn with partially obscured vision, i.e., the Claimant failed to stop and inch out.

Olson cited two cases, which neither of the Parties address⁴, which the Court finds to be dispositive in this case. In Schuett v. State, 36 Ill. Ct. Cl. 61 (1984), the Court entered an order of award of $5,000 for the Claimant, IDOT admitted plowing snow eight feet high onto a median of a divided highway, and completely blocked the turning-driver's view of oncoming traffic. “Claimant proceeded to slowly move her car into the intersection, apparently stopping every few feet, in order to turn left. Claimant testified, ‘I kind of crept up a little forward, you know, sort of inch by inch.’” Schuett, 36 Ill. Ct. Cl. at 63. The Court in Schuett observed, “In the instant case, we feel the Claimant, Katherine Schuett, in moving ‘inch by inch through the intersection’ used as much caution as was possible. In fact, we can think of no other more cautious way that she may have attempted to navigate the dangerous intersection created by the State’s plowing techniques.” Schuett, 36 Ill. Ct. Cl. at 67. The Court did not specify the lane in which Claimant was hit, but it is strongly implied that the Claimant was hit in the oncoming lane closest to her vehicle before the Claimant began to execute the turn.

Olson observed that in Aetna Insurance Co. v. State, 34 Ill. Ct. Cl. 167 (1981), “the proximate cause of the collision in the case was the negligence of Claimant driving out into the intersection when he did not know if there was any oncoming traffic. Claimant did not inch out into the intersection but rolled on out into the intersection without stopping.” Olson, 48 Ill. Ct.

Cl. at 244, citing Aetna. The driver in Aetna, similar to here, was executing a left-hand turn from a median on a divided four-lane highway. The Court observed that “[t]he [Claimant] pulled very slowly out into the southbound lanes with no vision whatsoever of any possible oncoming traffic in the southbound lanes with no vision whatsoever of any possible oncoming traffic in the southbound lane before he could see the length of the highway. His vehicle was still rolling when he saw [the other driver] approaching in the outer southbound lane. He tried to accelerate but she struck him.” Aetna, 34 Ill. Ct. Cl. at 168 (emphasis added). In other words, the driver in Aetna was attempting to make a left-hand turn very slowly across two lanes of traffic with his vision completely obstructed by snow and was hit by a car traveling in the left lane. The time for IDOT to have completed removal of the obstruction does not appear to have been an issue in Aetna.

Aetna held that since Claimant was more than 50% contributorily negligent, his claim was barred. Aetna, 34 Ill. Ct. Cl. at 170-171.

In Ziencina, cited by Claimants in their closing argument, the Illinois Supreme Court affirmed a jury verdict of $600,000 after finding Plaintiff 50% contributorily negligent. Ziencina, 188 Ill.2d at 14. Plaintiff’s car was stopped at the intersection of a two-lane highway and was attempting to turn left onto another two-lane highway where traffic was not required to stop.

Plaintiff’s vehicle was struck by a vehicle coming from the west “as the plaintiff edged out into the intersection to get a better view of traffic.” Ziencina, 188 Ill.2d at 3. As part of edging out, Plaintiff pulled a little way out into the intersection at first and then stopped as he was unable to see; after he edged out a little more, his car collided with another vehicle which was going straight. Id. There, the evidence also, “showed that a large mound of snow, standing higher than ⁴ While Claimants cite Schuett in their Reply Closing Argument, they do so only with respect to the undue burden argument regarding removal of the snow pile. Claimants do not distinguish Schuett on the facts.

[*117] the Plaintiff’s car, had been placed on the southwest corner of the intersection where the accident occurred …the snow mound was high enough to obstruct the view of the plaintiff and other drivers who drove through the intersection that morning. Notably, the evidence also showed that the Defendant’s employees recognized the significant hazard posed by such obstructions and would, in the exercise of ordinary care, reduce the height of a snow mound like this one.”

Ziencina, 188 Ill.2d at 14.

Applying the facts of this case against the above precedent, the Court notes that the award in Schuett turned on the Claimant’s “inching” into the intersection to get past the snow pile. Schuett, 36 Ill. Ct. Cl. at 66-67. Schuett analyzed Aetna and contrasted the driver’s conduct in Aetna (“He did not ‘inch out’ into the intersection as [the other driver] had observed other cars do, but rolled on out into the intersection without stopping at any point.”), Schuett, 36 Ill. Ct. Cl. at 66, citing Aetna, 34 Ill. Ct. Cl. at 167, 170. Likewise, the successful Plaintiff in Ziencina edged out by starting and stopping as the Plaintiff was attempting to turn left. There, Plaintiff was hit by the vehicle in the lane closest to him. Ziencina, 188 Ill.2d at 3. Still, the jury found Plaintiff 50% negligent, even though he appeared to be very careful edging out.

In this case, we have certain facts that are similar, in certain respects, to the above cases. However, the Court does not believe that Schmidt, Calvert, and Louis are either directly controlling or sufficiently analogous because all involved a determination that IDOT did not have sufficient time to remove the snow obstruction. Whereas, here, the Court concludes that IDOT did have time to remove the obstruction.

There was certainly undisputed testimony in this case that Ginger Young stopped before initiating her turn and that once she began her turn, she was moving slowly - to use her daughter’s words “creeping” which she described as moving less than 5 miles per hour. (Tr. p. 62). However, the evidence was not clear as to what actions Ginger Young took after she actually started to initiate her left-hand turn. The salient question becomes what actions Ginger Young took after she stopped behind the snow pile (while she was still in the median) and started moving past the pile of snow which was allegedly completely obstructing her vision of the oncoming traffic on Old Route 36. The positions and vehicle damage are important in analyzing this issue.

It is undisputed that the Young’s vehicle was struck by the King vehicle in the right-hand eastbound lane of Route 36 on a sunny day as she was attempting to cross those two lanes of traffic. In other words, Claimants’ vehicle, after it initiated the turn past the snow pile, passed completely over the entire left-hand eastbound lane of Route 36. We know this because the testimony of both Kathryn Young (a passenger) and Ms. King (the driver of the Mustang) testified that the collision occurred in the right lane. Ms. King testified that she stayed in the right lane. (Tr. p. 57). Kathryn Young testified that the collision occurred in the middle of the right lane. (Tr. pp. 60-61). There was no testimony or evidence that any part of the King vehicle was present in the left lane at any time prior to the collision or at impact. Had the collision occurred in the left lane - or lane closest to the snow obstruction - as in Schuett, for example, this would present an even closer question because it would have given Ginger Young even less time and opportunity to see oncoming traffic.

[*118] In addition, the photos presented in evidence establish that Ginger Young’s vehicle sustained severe damage to the rear passenger side at the rear wheel. There appears to be minimal, if not non-existent, damage to the front passenger side of the Young vehicle as the front passenger’s side door is open in the photos. (Cl. Exhs. 5-6). The King vehicle was severely damaged in the front, with the hood buckling, and noticeable damage to the front passenger-side bumper, (the driver’s side portion of the front bumper was still partially intact). (Cl. Exhs. 2-4).

Given these undisputed facts, the Court concludes that the front of Ginger Young’s vehicle was necessarily already past the front of the King vehicle when the collision occurred.

Otherwise, the Young vehicle would have sustained damage to the front passenger side. Kathryn Young did not testify specifically that the front of the vehicle was past the Mustang at impact, but she did testify that the King vehicle hit behind her on the passenger side. Thus, at the point of impact, the Young vehicle was very close to making it through both lanes of traffic on Old Route 36. In other words, impact occurred, not as Ginger Young was beginning her turn across eastbound Route 36, but near the end of the completion of her turn after her vehicle was almost done crossing Old Route 36. Claimant’s Exhibit 1A offers a layout of the Old Route 36 and Glasgow Road. Passenger, Kathryn Young, testified to this diagram. (See Cl. Exh. 21, Deposition Ex. 1A).

It is true that Claimant offered testimony that Ginger Young was driving her vehicle slowly when executing the turn. However, there was no evidence as to what she was doing, or what her ability to see the left lane eastbound traffic was once the nose of her car entered the left lane of Old Route 36. The evidence from Kathryn Young was that Ginger had initially stopped before initiating the turn and was then creeping, which she defined to be as moving less than 5 miles per hour. Clearly, Claimant is trying to draw a strong correlation between the description of Ginger’s driving as “creeping” and the “inching forward” language that cases such as Olson, Schuett, and Aetna use. See, Claimant’s Reply Closing Argument, p. 7 (which appears to mistakenly reference Calvert instead of Olson in par. b).

But the terms are not identical, especially in light of the evidence in this case. While it is true, as stated above, that the Claimant in Schuett actually used both “inched” and “creeped,” the driver there was clearly stopping and going to check for safety while proceeding with the turn across the lane of traffic. So was the driver in Ziencina. Here, there is no such evidence. Once Ginger Young started to execute the turn, the evidence (which is described as creeping) is that she was moving slowly, and the passenger, Kathryn Young, did not see the oncoming King vehicle until immediately before impact. There was no evidence presented that once the front of the Young vehicle entered the left-hand lane of Route 36 that Ginger Young ever stopped to inspect oncoming traffic. The driver in Schuett did. The Court noted that the drivers in Olson and Aetna - unlike Schuett - did not stop or inch up to check for traffic. And, it was the lack of doing so that ultimately played a pivotal - if not dispositive role - in denying their claims and in concluding that the Claimants’ negligence was the proximate cause of their collisions. This Court, after reviewing the testimony and assessing the credibility of the witnesses, concludes that the act of creeping meant that the Young vehicle continued to move, albeit at a slow pace.

The Court also places significance on the fact that the collision occurred in the right-hand lane with the damage to the Young vehicle occurring to the rear passenger wheel. The pictures of [*119] the snow pile (e.g., Resp. Exhs. 9-11) show that lights are visible from the oncoming traffic in the eastbound lanes of Route 36. Granted, these pictures were taken at night, and the collision occurred during daylight. However, the pile does not completely obstruct oncoming traffic in the photos. Therefore, the Court cannot conclude, on these facts, that Ginger Young's vision was completely obstructed by the snow pile. Despite passenger Kathryn Young's testimony that the pile obstructed Kathryn's vision, this does not speak to what Ginger Young was actually able to see, and to do so would be complete speculation. Further, the sheer nature of making a left hand turn onto a perpendicular road places the driver of the vehicle in a better viewing position than a passenger, so Kathryn's view (or lack thereof) of Old Route 36 does not necessarily mirror what Ginger Young would have been able to see.

Even if Ginger Young's view was completely obstructed, that does not help her case. It only reinforces the fact that more caution should have been used if she was deciding to proceed with a blind turn across highway traffic. Unlike the drivers in Schuett and Ziencina, there is no evidence that Ginger Young inched out by stopping and starting to see oncoming traffic. Also, there is no evidence that would have precluded Ginger Young from briefly stopping her vehicle to check traffic once it crossed into the oncoming left lane, as there was no testimony that any vehicles were approaching in that lane.

Instead, the evidence demonstrates that Ginger never stopped (despite moving slowly) once she actually initiated her turn. The Court does not doubt that the pile of snow was a hazardous condition. However, its existence was plainly known to Ginger Young. If Ginger Young's view of oncoming highway traffic was completely obstructed by the snow pile, executing a slow-moving left-hand turn was extremely risky. While this all happened very quickly, the King vehicle being in the right lane should have allowed Ginger Young more time to see the King vehicle, especially after the front of the Young's vehicle crossed into the eastbound lanes. There was no testimony as to what Claimants' vehicle did after it traversed the eastbound lanes. A review of the record indicates there was no evidence presented which would allow for the inference that a person who was physically in the left hand lane of the eastbound lanes looking down the straight road to their right (while completing the left turn) would have been impeded from seeing traffic on Old Route 36 which was both directly in front of and to the left of them.

In short, there is no evidence that once Ginger Young's vehicle had oriented itself into the eastbound lanes of traffic (which were straight, see Cl. Exhs. 1A, 1B) that she would have been unable to see oncoming traffic on this sunny day, for the snow pile was only covering the median. Had Ginger Young stopped once she was past the snow pile and in the left lane, but before the front of her car entered the right lane, she should have had an unobstructed view of oncoming traffic. Since the collision occurred in the right eastbound lane, had the Young vehicle not entered that lane, the collision would not have occurred. There is no evidence to establish why the driver of a vehicle moving 5 miles per hour or less while crossing the left lane of Old Route 36 would not have been able to stop in time to avoid the approaching yellow Mustang in the right lane. For whatever reason, Ginger Young apparently did not see the King vehicle in time to avoid the collision. However, once Ginger Young's car had crossed into Old Route 36, the Court concludes that the snow pile could no longer have been obstructing her vision. Once the front of the Young's vehicle entered the plane of the north side of the left-hand eastbound [*120] lane, Ginger’s vehicle was in a very precarious position because if her vision had been obstructed while it was behind the pile, it would have been unknown to her whether a vehicle was directly approaching her vehicle at highway speeds. Therefore, surveying the oncoming lanes of traffic should have been of paramount, immediate importance, certainly before proceeding into the next lane of traffic.

As in Olson, if Claimant would have inched out into the intersection, and even stopped, as she was crossing the oncoming traffic lanes, she would have avoided the collision. Olson, 48 Ill. Ct. Cl. at 244. It is clear from the Parties’ testimony and the photographs that Claimant did not inch out and use as much caution as possible.

While Ginger Young’s injuries are severe and her plight sympathetic, the evidence unmistakably shows that despite the negligence of the Respondent, Claimant’s failure to use care and caution at a partially, if not fully, obscured intersection was the primary cause of the collision. Ginger Young, though moving slowly, did not inch out slowly or move as carefully as the circumstances demanded. She did not stop or slow down sufficiently once her vehicle had crossed into the left (northern) lane of eastbound Old Route 36 to check eastbound traffic and, thus, pulled out in front of the oncoming vehicle in the adjacent (right) lane. The Court concludes that Ginger Young was more than 50% negligent and was the primary cause of this collision. As a result, she is barred from recovering under the law. As Mr. Young’s claim is a derivative claim for loss of consortium, his claim must also fail against Respondent.

For the foregoing reasons, it is hereby ordered that the claims of Claimants be and hereby are denied.