Sally L. Schaefer and Leonard E. Schaefer v. State of Illinois

OPINION

BIRNBAUM, C.J. A hearing was held before Commissioner Reid on July 28, 2022.

Because several witnesses lived in the Metro East area, the Claimants requested a hearing in Belleville, Illinois. The Court granted this request.

The following occurred prior to the hearing: (a) Claimants’ Motion to Amend the Complaint to Conform to the Evidence after the death of Brittanie Schaefer to make her parents Guardians in this action was granted by the Commissioner; (b) Claimants’ Motion in Limine on the issue of decedent’s failure to utilize a seat belt pursuant to 625 ILCS 5/12-603.1(c) was granted by the Commissioner; (c) The Parties stipulated that the previous discovery deposition of David S. Gibson (Expert Witness for Respondent) may be utilized as an evidence deposition; (d) The Parties stipulated that the previous discovery deposition of Southern Illinois University Edwardsville (SIUE) Police Officer Ryan Bandy may be used as an evidentiary deposition; (e) The Claimants’ Motion for Summary Judgment was reviewed and denied by the Court; (f) The Respondent asserted affirmative defenses of negligent conduct, set-off and public and official immunity; (g) The Respondent submitted a Departmental Report consisting of 510 pages. This Report includes the following: 1. Level 3 Traffic Crash Reconstruction Report prepared by Illinois State Trooper Bradley T. Brachear, #6324 2. Edwardsville Police Report; 3. Audio Ambulance Radio; 4. Bus Cam Video; 5. Police Vehicle Dash Cam Video; 6. Standard Operating Procedures (SOP); and, 7. General Orders.

The Respondent’s Exhibits consist of pleadings, pictures of the accident scene, discovery and evidence depositions, medical records and testimony of family members. All Exhibits were admitted into evidence.

[*275] (h) The Claimants submitted the following Exhibits on DVD disc: Exhibit 1: Medical Bill list

Exhibit 2: Medical Records Air Method

Exhibit 3: Medical Records - Alton Memorial Hospital Exhibit 4: Medical Records - Dr. James Dalla Riva Exhibit 5: Medical Records - Kindred Hospital

Exhibit 6: Medical Records - Lifestar

Exhibit 7: Medical Records - OSF St. Anthony Health Center Exhibit 8: Medical Records - St. Louis University Exhibit 9: Medical Records - Preferred Podiatry Group Exhibit 10: Request to Admit Medical Records Exhibit 11: Response to Request to Admit Bills

Exhibit 12: Reconstruction Report

Exhibit 13: Police Report

Exhibit 14: Photographs

Exhibit 15: David Gibson, Curriculum Vitae (C.V.)

Exhibit 16: Dr. David Gibson Report

Exhibit 17: Tax Returns

Exhibit 18: Ryan Bandy Personnel File

Exhibit 19: Handwritten Journal

Exhibit 20: No Exhibit

Exhibit 21: Dr. Carl Freeman Deposition Transcript Exhibit 22: Dr. Carl Freeman C.V. Exhibit 23: Deposition Transcript of Dr. Roula Al-Dahhak Exhibit 24: Dr. Roula Al-Dahhak C.V. Exhibit 25: Deposition Transcript of Dr. Catherine Wittigen Exhibit 26: Dr. Catherine Wittigen C.V. Exhibit 27: Deposition of Ryan Bandy Exhibit 28: Deposition Transcript of Kevin Schmoll Exhibit 29: Deposition Transcript of Daniel Murphy Exhibit 30: Deposition Transcript of David Gibson

Exhibit 31: No Exhibit

Exhibit 32: P & P Pursuit Policy for SIUE Police Exhibit 33: Patrol Duties, Responsibilities & Zones Of these Exhibits submitted by the Claimants, Exhibits 12, 13, 18, 27, and 33 specifically address liability issues. All Exhibits were admitted into evidence or recognized as admissible in this case.

FACTS

This claim arises out of an automobile collision at the intersection of Center Grove Road and State Route 157 in Edwardsville, Illinois on February 3, 2015. Officer Ryan Bandy, an employee of Respondent, was traveling northbound on Illinois Route 157 with his emergency lights and sirens activated as he approached the intersection. Britannie Schaefer was traveling eastbound on Center Grove Road and the evidence shows that Ms. Schaefer had a green light when she entered the intersection. Officer Bandy did not significantly reduce his speed and [*276] maintain a proper lookout at the crossing to make sure the intersection was clear of traffic prior to proceeding through the red light. Officer Bandy’s vehicle struck the midsection of the passenger side of Ms. Schaefer’s vehicle. The substantial impact caused Ms. Schaefer’s vehicle to travel approximately 110 feet and off the roadway into the grass. As a result of the crash, Ms.

Schaefer’s car was totaled. (Exhibit 12, Reconstruction Report and Exhibit 13, Police Report).

There is no evidence as to why Ms. Schaefer would not hear the siren or notice the flashing lights.

Ms. Schaefer was rendered unconscious and transported to St. Louis University Hospital by Arch Air Medical from the scene of the accident. (Exhibits 2, Air Methods Medical Records).

Ms. Schaefer was admitted to the Intensive Care Unit (ICU) where she stayed from February 3, 2015 until February 15, 2015. While in the ICU, Ms. Schaefer was comatose, underwent a tracheostomy, was intubated, catheterized, and on a PEG feeding tube and a ventilator. She received numerous tests including CT scans, MRI scans, EEG scans, x-rays, cultures, and labs.

During her course in the ICU her pain was managed by medication and at times she was fully sedated. Ms. Schaefer was diagnosed with a traumatic subdural hematoma, traumatic subarachnoid bleed, contusion of the right lung, intraparenchymal hematoma of brain due to trauma, diffuse axonal injury, and left vertebral artery narrowing. She had a traumatic brain injury which affected her brain stem as well as the actual brain. Ms. Schaefer remained minimally responsive during her stay in the ICU; and due to her traumatic brain injury, she was transferred to a long-term care facility. (Exhibit 8, SLU Hospital Medical Records).

Ms. Schaefer was transferred to Kindred Hospital on February 25, 2015, where she remained until April 10, 2015. While at Kindred, Ms. Schaefer remained minimally responsive.

But the evidence elicited by family members is that she had moments of consciousness where she could respond to her family in limited ways and also at time expressed enormous pain and anguish. During her stay she developed but resolved a urinary tract infection, colitis, and respiratory failure. Her diagnoses were traumatic brain injury, axonal injury, tachycardia, and bradycardia. She had severe ongoing deficits and was not able to participate in therapies to the extent that was required for acute rehabilitation, and she was discharged to a skilled nursing facility. (Exhibit 5, Kindred Hospital Medical Records).

Ms. Schaefer was transferred to Robings Manor Nursing and Senior Rehabilitation Center on April 1, 2015, where she stayed until July 11, 2016. (Exhibit 1, Medical Bill List).

While at the skilled nursing facility, Ms. Schaefer’s condition began to decline as she began having seizures leading to an epilepsy diagnosis. She also had digestion issues, chronic reflux, and abdominal pain leading to several gastrointestinal endoscopies and adjustments to her tube feeding. On July 1, 2016, her medical records reflected that she was in a vegetative state. (Exhibit 7, OSF St. Anthony’s Health Center Medical Records).

Ms. Schaefer was placed on hospice on July 2, 2016. (Exhibit 1, Medical Bill List). Ms.

Schaefer’s family took her back to their family home where she passed away on August 13, 2016. (Trial Transcript pgs. 42, 72-73).

RESPONDENT’S INSTITUTIONAL OMISSIONS, VIOLATIONS OF PRACTICES AND LACK OF PROTOCOL A review of the background of this case shows that several omissions and failures to abide by well-established police practices, together with a general lack of caution for others on the roadway, contributed to the subject accident and death of Brittanie Schaefer. To wit:

[*277] First, the event that Officer Bandy was responding to involved an elderly woman who fell on campus, which resulted in a 911 emergency call to SIUE Police. Because personnel at the campus cared for the woman without emergency assistance, the fact was that this fall was not a life or death emergency and the request to the Police and Officer Bandy for emergency assistance was overstated. Next, Officer Bandy requested and was granted by Police Commander Daniel Murphy an exception from Police policy to allow Officer Bandy to eat lunch off campus, leaving no available officer on campus. This exception was allowed notwithstanding several restaurants on campus. But for this fact, Officer Bandy would not have needed to race back to campus to the scene of the fall. It was also clear that there was no existing SIUE policy or training program for its police officers to address situations such as the case at bar. SIUE had a policy for “pursuit cases”, but not for “emergency response cases”. With respect to his training and employment, the record shows that Officer Bandy became “nervous and unsure of himself” while driving in emergency situations or when encountering traffic at intersections. The record also shows he was not adequately familiar with the campus geography.

Officer Bandy and Chief Schmall agreed that Officer Bandy was at fault for “failure to reduce speed to avoid an accident” and for failure to maintain sufficient control of his vehicle to ensure the safety of other drivers. Officer Bandy’s guilty plea in Madison County Circuit Court buttresses that conclusion. The incident investigation of the traffic accident was incomplete, only because Officer Bandy gave no reasons for his actions and inability to see the other vehicle.

Further, Officer Bandy’s dash camera clearly shows Ms. Schaefer in the intersection ahead.

VEHICLE SPEED AND LACK OF DUE CARE

SHOW PROBABLE CAUSE

A review of “Dash Cam Video” from Officer Bandy’s motor vehicle and a nearby “Bus Dash Cam” video clearly shows that Officer Bandy did not substantially reduce his speed (speed was reduced from 41 mph to 38 mph) as he approached the intersection and did not take a “first look” or a “second look” at the intersection nor make any attempt to avoid, veer or minimize the collision. It is implausible that Officer Bandy did not see, either peripherally or directly Ms.

Schaefer’s automobile prior to the collision.

During Officer Bandy’s travel back to campus, his speed varied from 63 mph to 59 mph, and from 41 mph to 38 mph when he hit Ms. Schaefer’s automobile. The “dash cam video” clearly shows that Officer Bandy had to see the oncoming automobile to his left and in front of him, but he took no action to stop, slow down or veer off to avoid the collision. Officer Bandy admitted in a deposition taken by counsel for the Claimants that his guilty plea was made because he takes responsibility for the tragic accident.

ANALYSIS

I. Liability-Negligence

In any negligence case, the Court must examine the following four elements: duty, breach of duty, causation, and damages. Hoeksstra v. State, 38 Ct. Cl. 156 (1985). The duty of care at a crossing controlled by traffic signals normally involves looking to the left as the intersection is entered and to the right at the midline of the intersecting street approached. This duty is not relieved when an officer has engaged lights and sirens, [*278] approaching an intersection in emergency situation. The Police Report by State Trooper Brachear (a certified Traffic Crash Reconstruction Officer) found that Officer Bandy failed to adhere to these rules. Further, the State Trooper’s Report found Officer Bandy at fault for the accident.

A claimant is barred from recovery if the contributory fault on the part of the claimant is more than 50% of the proximate cause of the damage. If the claimant’s negligence is less than 50% recovery is reduced by the proportionate amount of fault. “A plaintiff is contributorily negligent when he acts without the degree of care that a reasonably prudent person would have used for his own safety under the like circumstances, and which action is the proximate cause of his injury.” Zook v. Norfolk & Western Railway Company, 268 Ill.App.3d 157, 170 (4th Dist. 1994).

The Illinois Vehicle Code subjects all drivers to certain obligations (625 ILCS 5/1-100). Here, both Officer Bandy and Ms. Schaefer were under a duty to proceed through the intersection with due care.

Officer Bandy testified that he did not see Ms. Schaefer’s automobile until he was upon it. In fact, Officer Bandy said at his July 2, 2021, deposition in response to a question “When was the first time you saw her vehicle?” as follows: “It was upon impact or shortly thereafter.” (p. 15, lines 5-8). The dash and bus cam videos show Ms.

Schaefer’s care in plain sight.

However, Ms. Schaefer bore some responsibility for failure to maintain a proper lookout, even though she had a green light at the intersection. Officer Bandy was operating an emergency vehicle with lights and sirens activated. Drivers must be aware of their surroundings, including the existence of emergency situations.

A review of the facts of this case shows that Officer Bandy had a duty to the public, breached that duty, caused the subject accident, and the accident led to the death of Brittanie Schaefer. The record does not explain why Ms. Schaefer did not react to the emergency lights or sirens, but does show that she proceeded into the intersection in the normal course. As she attempted to cross the intersection, she was hit broadside by Officer Bandy. We find that Ms. Schaefer’s actions in the circumstances of this case equate to contributory negligence of twenty percent (20%).

II. The Survival Act and the Wrongful Death Act In rendering its decision, the Court must assess damages based upon a claim under the Survival Act (755 ILCS 5/27-6) and claims under the Wrongful Death Act (740 ILCS 180/1).

The Survival Act is intended to compensate the estate of the decedent for the damages and injuries she suffered prior to death. National Bank of Bloomington v.

Norfolk & Western Ry. Co., 73 Ill. 2d 160, 180 (1978). The decedent’s estate is entitled to the same compensatory damages that the decedent would have been entitled to up to the time of death. The Court can compensate the estate for damages for conscious pain and suffering, lost earnings, medical expenses, loss of consortium, physical disability, and property damage. Varelis v. Northwestern Memorial Hospital., 167 Ill. 2d 449 (1995); Murphy v. Martin Oil Co., 56 Ill. 2d 423 (1974); see also I.P.I.31.10.

To recover damages for pain and suffering, a claimant must prove the decedent actually and consciously suffered pain before death and where death is instantaneous or the decedent was rendered unconscious immediately, an action for pain and suffering cannot be sustained. See Ellig v. Delnor Community Hospital, 237 Ill.App. 3d 396, 401 [*279] (2nd Dist. 1992). Lay testimony describing the decedent’s actions prior to death can for the basis for a pain and suffering claim. Moore v. Swoboda, 213 Ill. App. 3d 217 (1st Dist. 1991).

The Wrongful Death Act permits a recovery for the death of an individual by wrongful act, neglect or default where none existed at common law. The act is viewed traditionally as creating a cause of action that must be brought in the name of the representative for the losses which a surviving spouse and next of kin (surviving family members) may have sustained by reason of the death of the injured person. Pasquale v.

Speed Products Engineering, 166 Ill. 2d 337, 360 (1995). Recovery is limited to those persons delineated in the statute. JoLou Mio v. Alberto-Culver Co., 305 Ill. App. 3d 822, 826 (2nd Dist. 1999). The “next of kin” is the deceased person’s close family members.

The Wrongful Death Act allows the survivors of someone whose death was caused by “wrongful act, neglect or default” to pursue damages from the people or entities that were fully or partially responsible for the death.

Historically, damages for bereavement by the next of kin were not recoverable under the Wrongful Death Act. However, in a case of first impression decided by this Court we found the 2007 amendments to the Wrongful Death Act allow compensation for the “grief, sorrow and mental suffering of the next of kin.” Dorsey v. State, 63 Ill. Ct. Cl. 177, 207 (2011).

Our Supreme Court has said that parents are entitled to a presumption of pecuniary injury in the loss of a child’s society. Bullard v. Barnes, 102 Ill. 2d 505 (1984).

The Respondent has stated that if it is found that there was a breach of duties, it concedes that the parents sustained losses.

Likewise, the Illinois Supreme Court has held that siblings may be entitled to recover under the Wrongful Death Act since the loss of a sibling’s society is a pecuniary injury. In re Estate of Finley, 151 Ill. 2d 95, 103 (1992). The Respondent has conceded that the Claimants’ siblings have presented sufficient evidence to recover from the estate.

III. Damages. Contributory Negligence factors must be applied to each amount. (a) Medical Expenses.

Are stipulated in the amount of $735,898.94. (b) Lost Wages.

The Claimant has requested the sum of $1,590,159.00. The Claimant retained economist David Gibson who compiled a report and testified via deposition. Mr. Gibson’s report was the result of a Vocational Economic Rationale (VEA). Mr. Gibson’s estimated loss of earning capacity ranged from $1,100,000.00 to $1,500,000.00. The Respondent has provided an economic assessment by Dr. BeLasen for Brittanie Schaefer in the range of $573,571.43 if she continued in her present position or $799,277.90 if Brittanie became a paralegal. This economic assessment splits the difference and recommends a total loss of wages in the amount of $686,399.67. This Court finds that Dr. BeLasen’s estimated earnings are not reflective of the average salaries received today by legal assistants or paralegals. The Court finds a fair and equitable loss of wages would be $1,300,000.00. (c) Disability, Loss of Normal Life, Pain and Suffering, Emotional Distress and Disfigurement.

The evidence is unequivocal that Brittanie suffered disfigurement and loss of a [*280] normal life. There is also strong evidence that she had moments of consciousness where she could interact by smiling, giving a thumbs up, or squeezing the hands of her family members.

The evidence is that she cried out in pain or moaned on many occasions. The Court awards $1,250,000.00 for this component. (a) Loss of Society, Grief, Sorrow and Mental Suffering.

This case calls out for accountability. A young woman was killed by a poorly trained police officer; whose series of mistakes, departures from procedures, and breaches of duty resulted in tragedy.

The Schaefer family and Brittanie Schaefer's memory deserve better. No parent should outlive their children, especially when the child was taken from them through negligence. The evidence shows that Brittanie's parents, Sally and Leonard Schaefer, had loving daily interactions with Brittanie, a young woman whom by accounts was happy, caring, loving, strong, and independent.

For this reason, we find the parents, Sally Schaefer, and Leonard Schaefer, who have experienced ongoing, profound grief and sorrow from her death, will each receive the sum of $1,500,000.00. Brittanie's siblings - Shannon Tavner, Stephanie Rodgers, Thomas Donaldson, Derrick Donaldson, and Lennie Jo Schaefer provided evidence of grief, sorrow and loss of society. Each sibling is awarded the sum of $500,000.00 All of the foregoing damage amounts will be reduced by 20% due to the contributory negligence reduction.

CONCLUSION

This money will never replace Brittanie Schaefer. It is our hope that this tragedy will send a message to the University Board of Trustees that Campus Police should implement stronger vetting of candidates and provide much better training to its police force, whose job it is to protect the students, teachers, employees, and visitors to the University. Money damages are the only remedy we can provide the family. We hope that it may bring some solace.

IT IS HEREBY ORDERED, in final disposition of this claim, judgement in favor of the Claimants as follows: Payable to the estate of Brittanie Schaefer Medical Expenses: $735,898.94 @ 80% = $588,720.00 Lost Wages: $1,300,000.00 @ 80% = $1,040,000.00 All other damages: $1,250,000.00 @ 80% = $1,000,000.00 Payable to each family member: Sally Schaefer: $1,500,000.00 @ 80% = $1,200,000.00 Leonard Schaefer: $1,500,000.00 @ 80% = $1,200,000.00 Shannon Tavner: $500,000.00 @ 80% = $400,000.00 Stephanie Rodgers: $500,000.00 @ 80% = $400,000.00 Thomas Donaldson: $500,000.00 @ 80% = $400,000.00 Derrick Donaldson: $500,000.00 @ 80% = $400,000.00 Lennie Jo Schaefer: $500,000.00 @ 80% = $400,000.00

Total: $7,028,720.00