Frank and Kristi Ann Mellace v. State of Illinois

OPINION

AUSTRIAO, J. Claimant Frank Mellace brings this tort claim seeking compensation for damages suffered after his bicycle got stuck in a separation between the shoulder and the road when he and his friend, Eric Guzman, were riding their bicycles on Route 47 near its intersection with Route 64. Mr. Mellace's wife, Co-Claimant Kristi Ann Mellace, brings a separate tort claim for loss of consortium that is also part of this action.

Factual Background

Mr. Mellace and his friend, Eric Guzman, testified at the hearing that on August 13, 2017, they went on a lengthy bicycle ride. Both men were wearing helmets. Mr. Mellace had ridden bicycles his whole life but had been riding over the road on a road bicycle like the one in the accident for about three years. This included riding in a 15 mile cycling event in Bartlett, Illinois. Although Mr. Guzman had prepared the route they took, which Mr. Mellace had never taken before, Mr. Guzman rode behind Mr. Mellace since Mr. Guzman was the more experienced cyclist.

As they started back toward Mr. Guzman's house, they turned onto Route 47 northbound.

They were going to go on Route 47 northbound for about ½ of a mile to ¾ of a mile and get off at the Great Western Trail, which was about 30 yards north of the intersection with Route 64/North Avenue.

A sign along the portion of Route 47 northbound that Mr. Mellace and Mr. Guzman were traveling reminded drivers to maintain a 3 foot clearance when passing a cyclist on the road. The posted speed limit was 55 miles per hour. Route 47, which is a rural highway, at the time and location in question had one northbound and one southbound lane, each with a solid white line on the outer edge demarcating the asphalt shoulder to the right.

A few hundred feet south of Route 47's intersection with 64/North Avenue, the northbound lane was separated from the shoulder by a right-turn lane demarcated by a dotted white line. On the outer edge of the right-turn lane a solid white line demarcated the asphalt shoulder to the right.

After riding on Route 47 for about ½ of a mile to ¾ of a mile, Mr. Mellace and Mr.

Guzman were riding downhill about 5 to 10 miles per hour and were a few hundred feet south of the Route 64/North Avenue intersection. Around this time, Mr. Mellace crossed over the solid white line demarcating the shoulder, and his bicycle's front tire got stuck in a gap/crack/separation past the solid white line next to the shoulder. His bicycle immediately [*270] flipped forward 90 degrees and became vertically stuck, causing him to flip over the handlebars onto the ground where he hit his head and hands.

Contrary to Claimants' closing brief, the details regarding what Mr. Mellace was doing at the time he crossed over onto the solid white line are unclear because his testimony on this issue at the hearing contradicted what he said in his April 8, 2019 deposition.

At his April 8, 2019 deposition, Mr. Mellace indicated that the majority of the time he and Mr. Guzman were on Route 47, they were riding on the asphalt shoulder of the road. He testified at the deposition that when the accident occurred he was "riding on the shoulder, [when] Eric [Guzman] had told [him] that it was clear to move over to get on the street, because [Mr. Mellace] was on the asphalt on the shoulder; [after the] car had passed [Mr.

Mellace] went to get over, [and after] a couple seconds [his bicycle] fell in the crack of the road."

However, at the hearing Mr. Mellace (and Mr. Guzman) testified that they were on the northbound lane most of the time they were on Route 47. They both stated that before the incident, they only went onto the shoulder once or twice before when there was a car behind them. Further, they both testified that when they were approaching the intersection right before the incident, they were on the northbound lane and Mr. Guzman yelled out, "car." According to Mr. Mellace there was a car traveling in the opposite lane at that same time.

Mr. Mellace further testified at the hearing that right after he heard Mr. Guzman yell "car," he then crossed over the dotted white line and onto the right-turn lane. He explained that he did not look behind to see if the car behind them had also moved onto the right-turn lane, he then moved over the solid white line to get onto the shoulder.

When asked during the cross examination at the hearing to reconcile the two different versions of events, Mr. Mellace explained that he must have "misused shoulder and turning lane at the deposition." However a few questions later Mr. Mellace agreed that when he said in his deposition that he was "on the asphalt" when the accident occurred, that could only mean he was on the shoulder because the turning lane was made of concrete.

Neither Mr. Mellace nor Mr. Guzman dispute that if they did not try crossing onto the shoulder the accident would not have occurred. However, they both testified that they moved over to the shoulder for safety reasons. Mr. Mellace explained that they moved onto the shoulder when vehicles were behind him because he was worried about getting hit by a car or truck since drivers did not usually maintain the legally required 3 foot clearance from the cyclists when passing. He was especially concerned in the instant situation that the car behind him would leave even less clearance between them if it tried passing them while the oncoming car in the opposite lane was still there.

Although Mr. Guzman also testified that they moved to the shoulder for safety reasons, he acknowledged that cars could pass cyclists without cyclists having to go onto the shoulder.

He also acknowledged that he had been passed by cars while riding on the road before.

As for the separation itself, both Mr. Mellace and Mr. Guzman testified they did not see it before Mr. Mellace crossed over the dotted white line. Mr. Mellace stated that he and his wife went back to take pictures and that the separation was about 50 feet long and that there was a dark black tar-like substance inside it that made it hard to see. He also stated that there was a black rope inserted inside the separation that, based on his experience in construction, indicated some repair work had been performed earlier.

[*271] According to Raymond Sidwell, the IDOT employee who inspected the separation after Mr. Mellace’s accident, it was about 2 to 3 inches wide and as much as 8 inches deep in some portions. Mr. Sidwell stated that they used liquid asphalt to fill the separation after Mr.

Mellace’s accident. He indicated, that in addition to his crews looking out for hazards and defects when they were out on a job and the annual survey conducted by his supervisor, Bryant Burnell, IDOT would find out about issues or deficiencies through the motoring public, municipalities, police departments, fire departments, County Sheriff’s, and State Police. Mr.

Sidwell claimed that IDOT did not have any prior notice of any defects at the location in question.

However, Claimants argue that Respondent did have actual notice. They direct our attention to the top of the claim form that Mr. Sidwell received regarding Mr. Mellace’s incident, that Mr. Sidwell signed and filled out after inspecting the location, where the directions specifically stated, "Please review the attached claim report regarding personal injuries from a separation of pavement while claimants were traveling near Route 47 and Route 64 on June 10, 2016, and August 13, 2017." Further, on the top of that same form, where it states "file number," there are two file numbers: 805043 and 805336; and right next to that section, where it states D/A (date of accident), there is again the June 10, 2016 date in addition to August 13, 2017, the date of Claimant’s accident. No evidence was ever produced of a previous accident on June 10, 2016.

Analysis

Negligence and Duty To prove a claim of negligence, a claimant must prove the following: the respondent owed him a duty; the respondent breached that duty; and that the respondent’s breach proximately caused his damages. Estate of Johnson by Johnson v. Condell Memorial Hospital, 119 Ill.2d 496, 503, 520 N.E. 2d. 37, 39 (1988). Although the State is not an insurer of the conditions of its roadways, it does have a duty to use reasonable care in maintaining its roads.

Trotter v. State, 45 Ill. Ct. Cl. 164, 168 (1993). This duty extends to cyclists on roadways where bicycles are permitted, like the roadway in question.

Breach

Said duty of reasonable care is breached when the State had actual or constructive notice of dangerous conditions on its roads. Id. Thus, as a threshold matter in proving breach, Claimants must establish that Respondent had actual or constructive notice of the dangerous condition. See Peterson v. Illinois Department of Natural Resources, 61 Ill. Ct. Cl. 274, 278 (2009).

Here, the dangerous condition alleged is the separation between the right turn lane and shoulder. The separation was about fifty feet long, and near the location where Mr. Mellace fell was 2 to 3 inches wide and 3 to 8 inches deep. Claimants argue that this constitutes a dangerous condition because it poses a risk of foreseeable harm to cyclists crossing onto the shoulder.

Respondent counters this is not a dangerous condition because vehicles are not supposed to drive on the shoulder of the road. In his evidence deposition, Raymond Sidwell explained that his supervisor, Bryant Burnell, conducted an annual site survey and that when his crews would go out on a job, they would make note of any defects or hazards on the roads. However, he indicated their primary focus is the road because that is where people are driving. According [*272] to Mr. Sidwell the primary purpose of the shoulder is to protect the road, and they were not very focused on the shoulders of the road when they went out on a job.

Regardless of the shoulder’s primary purpose, its attachment to the road renders it wholly foreseeable that vehicles might cross onto the shoulder for emergency purposes. See Scarczone v.

State, 43 Ill. Ct. Cl. 207, 209 (1990) (holding that the Illinois vehicle code requires bicyclists to ride on the roadway and not the shoulder of highways, unless some unusual circumstances require use of the shoulder).

Although a 2-3 inches wide, 3-8 inches deep separation would not pose any harm to a car or truck crossing onto the shoulder, Mr. Sidwell himself acknowledged that it could pose a risk of harm to bicycles. Further, there is some evidence that Respondent in fact anticipated bicyclists on this roadway since there was even a sign posted on this section of Route 47 northbound reminding drivers to maintain a 3 foot clearance when passing a bicyclist.

But as stated above, the State is not an insurer of all injuries caused on its roadways. To that end, even if the separation constituted a dangerous condition, the State can only be found liable if it had notice of the separation. On the claim form that IDOT’s Schaumburg Claims Office sent to Raymond Sidwell (the IDOT employee who, on October 18, 2017, inspected the location in question) he indicated that IDOT did not have prior notice.

However, Claimants contend that Mr. Sidwell’s assertion regarding lack of notice is contradicted by the following instructions on the claim form sent to him from IDOT’s Claims Office (Claimant’s Exhibit 19): “Please review the attached claim report regarding personal injuries from a separation of pavement while claimants were traveling near Route 47 and Route 64 on June 10, 2016, [which was 14 months prior to Mr. Mellace’s accident] and August 13, 2017 [the date of Mr. Mellace’s accident]” (emphasis added).³ Claimants argue that this reference to a June 10, 2016 incident establishes that IDOT had notice of the separation over a year prior to Mr. Mellace’s accident. Claimants also argue that actual notice was established because a case was filed in the Court of Claims regarding the June 10, 2016 accident. However, Claimants have not provided any evidence that there was a prior accident at or near the location in question on June 10, 2016. Claimants never offered the “attached claim report,” referenced in Exhibit 19; nor do they offer any case number, caption, or other documentation substantiating that a case was filed in the Court of Claims. For all the above reasons, we find that Claimants have not met the preponderance of the evidence standard and established that it is more likely than not that IDOT had actual notice.

We next turn to constructive notice. The two general methods for proving constructive notice of a defect are the length of time that the defect existed and/or the defect being so obvious that constructive notice should be imputed by the nature of the condition itself. Alsbrook v. State, 48 Ill. Ct. Cl. 205 (1995); King v. State, 54 Ill. Ct. Cl. 305 (2001). However, this does not mean that the State is required to undertake extraordinarily burdensome inspections or maintain its property in such condition that patrons may wander at will over each and every portion thereof.

Lyons v. State, 39 Ill. Ct. Cl. 192 (1987); Pulizzano v. State, 22 Ill. Ct. Cl. 234 (1956).

³ In the discovery deposition of Bryant Burnell, IDOT’s Kane County Operations Supervisor, Claimant’s counsel asked Mr. Burnell if the June 10, 2016, incident referenced in the form from the Schaumburg Claims Office was referring to another bicycle accident. Mr. Burnell responded that he did not know and that he assumed both dates were submitted at the same time.

[*273] Here, even though the separation was about 50 feet long, it was just 2-3 inches wide, right on the outside edge of the white line separating the right-turn land and shoulder. Nothing about the nature of the condition itself renders it obvious that the condition existed for a period of time long enough to impute constructive notice. See e.g., Riviera v. State, 63 Ill.Ct.Cl. 218 (2011). (finding that condition of a broken chain link fence was sufficient to impute constructive notice because the rust on it and the shrubbery growing through it indicated that it had been in disrepair for a considerable period of time).

In addition to the nature of the condition itself, Claimants argue constructive notice is also supported by evidence of prior repairs to the separation and the length of time it would have taken for the separation to occur. Regarding the prior repairs, Claimants argue that despite Respondent not having any records to this extent, it is clear that IDOT had attempted to repair the separation in question prior to Mr. Mellace's accident because Mr. Mellace testified that, based on his experience in construction, the black rope in the separation indicated previous repair work.⁴ Also, Claimants point to the deposition of Bryant Burnell, IDOT's Kane County Operations Supervisor at the time in question. Specifically, when Mr. Burnell was shown photographs of the location in question taken two to three weeks after Mr. Mellace's accident and asked what the black tar-like substance inside the separation was, he answered it was liquid asphalt.

Mr. Burnell indicated that IDOT would have been the agency to have used the liquid asphalt and that this was not normally something IDOT did for longitudinal gaps. However, in this case they would have used it because the gap was too narrow to fill with solid asphalt.

Claimants also contend that Mr. Burnell's testimony established how long it took for the separation to occur. Specifically in the deposition, Claimants' counsel asked Mr. Burnell, "I mean, to me, [the separation] is something that has to take months to occur. What do you think?" Mr. Burnell answered, "correct."

Claimants conclude that Respondent clearly had constructive notice about the separation that caused Claimants' injuries since it took months for the separation to occur and there is evidence that IDOT had tried to repair the separation prior to Mr. Mellace's accident.

We do not find that Claimants have established either of these facts by a preponderance of the evidence. First, "months" is not a specific enough duration: months could mean anywhere from two to eleven months. Secondly, they have failed to establish when, if at all, IDOT made repairs to the separation. Regardless, even if IDOT had made repairs to the separation at some point before Mr. Mellace's accident, the more relevant inquiry would be when IDOT made those alleged repairs and how long after the alleged repairs it would have taken the separation to end up in the condition that caused Mr. Mellace's accident. Without expert testimony or other evidence establishing these time frames we do not find that IDOT had constructive notice.

Thus, Claimants have also failed to carry their burden in establishing constructive notice and accordingly have failed to establish that Respondent is liable to them for their damages.

THEREFORE, Claimants Frank and Christie Mellace's claims are hereby denied.

⁴ Mr. Mellace was testifying in his capacity as a lay witness and not an expert.