Leo and Katherine Wilson v. State of Illinois

OPINION

GAGLIARDO, J. This matter is before the Court following a final hearing before Commissioner Andrew M. Ramage. The Court being fully advised in the premises, finds as follows:

I. BACKGROUND

Procedural History

On August 31, 2016, Claimants filed their two-count Complaint alleging Wrongful Death and Survivorship claims respectively, against Respondents Jefferey Denning, the Illinois State Police (“ISP”), and the State of Illinois arising out of a fatal motor vehicle accident that occurred on May 7, 2016, in Decatur, Illinois, which involved vehicles operated by Decedent Kelly Wilson (“Wilson”), 26, of Decatur and ISP Trooper Jefferey Denning (“Denning”). Denning and the ISP were dismissed as Respondents on January 24, 2017.

At Paragraph 22 of each Count of the Complaint, Claimants allege Respondent, through the actions of its agent/employee Denning, was negligent and reckless in that he: a) operated his vehicle at an excessive rate of speed given the traffic circumstances and the distance to the incident to which he was responding; b) failed to keep a proper lookout for the vehicle operated by Wilson; c) failed to reduce his speed at the intersection to avoid an accident; d) failed to keep his vehicle under safe and proper control; and e) failed to operate his sirens. Claimant allege Wilson died as a direct and proximate cause of one or more of these acts or omissions.

Respondent’s Answer generally denies the allegations in the Complaint. For its Affirmative defenses, Respondent alleges: 1) that Wilson was contributorily negligent; 2) that Respondent is entitled to a set-off for any monies paid by any other source; 3) that the cause is barred by public official immunity; and 4) that the matter is beyond the jurisdiction of the Court of Claims. Claimants filed Answers to the Affirmative Defenses on November 14, 2016, in which they deny the allegations thereof.

Respondent specifically asserts that Master Seargent Denning is entitled to public official immunity and that as a result, the State of Illinois is not responsible for his conduct under the doctrine of respondent superior. Respondent also asserts that Claimants have failed to establish a prima facie case of negligence, and consequently, [*182] determines that Respondent is liable, Respondent asserts that any damages awarded should correspond to the allegations pled by Claimants and the evidence that was offered at the hearing.

Claimants seek economic damages of $614,293.20 (consisting of $575,197.00 in future economic losses. $25,380.45 in related medical expenses, $3,646.40 for Wilson’s headstone, and $13,069.35 for her funeral). While Respondent did not stipulate to foregoing amounts, it did not present any contrary evidence contesting the economic damages. Claimants also request a non-economic award of $10,000,000.00 for the grief, sorrow, mental suffering and loss of society for each of Wilson’s minor children, Ella Stolz, and Addison Crowder. The total sought by Claimants is $20,617,293.20.

On January 28, 2021, Trooper Denning entered a partially negotiated plea of guilty to a Class A misdemeanor for a reckless conduct charge in Macon County. See Exhibit 10, People v. Denning, No. 2018-CF-1666. That plea summarized below, relates to the same facts and circumstances which give rise to this case.

II. Evidence

Summary of Witness Testimony Claimants called fifteen witnesses total, including six witnesses the day of the trial: 1) Trooper Denning as an adverse witness. 2-3) Wilson’s minor daughters, Ella Stolz and Addison Crowder, 4) Wilson’s sister, Megan Wilson, and 5-6) Wilson’s parents, Kathrine and Leo Wilson. Additional witnesses testified via evidence deposition, to wit: 7) Eric Cook (eyewitness), 8) Tammy Jones (Panera employee), 9) Krystina Pettit (Ella’s teacher), 10) TyKyna Cole (counselor). 11) Andrew Scott (police procedures expert), 12) Thomas Green (Plaintiff’s accident reconstruction expert), 13) Swaroop Dinakar (Human Factors Expert), 14) Jennifer Bash (forensic toxicologist), and 15) Edward Sattler (economist). See Claimants’ Exhibits (“CX”) 23-31.

Respondent called two witnesses at trial, Denning and ISP crash reconstructionist officer, Stephen Coady.

Trooper Jeffrey Denning. On May 7, 2016, Denning was a Master Sergeant with the Illinois State Police. Trial Transcript (“TR”), p. 49-50. He was a Master Sergeant for District 10, and that evening there were two troopers working night shift; himself and John Copple, who resided in Mahomet, Illinois. TR., p. 50-51. On May 7, 2016, at approximately 11:00 p.m., Denning received an ISPERN2 dispatch. TR., p. 63. At that time, Denning was operating a Chevy Caprice and was on IL-Route 48, near the intersection with Grand Avenue in Decatur, Illinois. TR., p. 65, 69. To the north of Grand Avenue, Oakland Avenue merges with I-Route 48. No evidence was presented of adverse weather or sight conditions.

At all times relevant, IL-Route 48/Oakland Avenue was a four-lane, north-south road with two lanes of traffic traveling in each direction and a center turn lane

Illinois State Police Emergency Radio Network

[*183] separating the north-south lanes of traffic. TR., p. 65-66. IL-Route 48/Oakland Avenue is a major thoroughfare and is primarily a residential-business area. TR., p. 65. The posted speed limit on Oakland Avenue was 35 miles per hour. Respondent’s Exhibit (“RX”) 1, p. 5. Harrison Street is a two-lane, east-west road which intersects Oakland Avenue in Decatur, Illinois. The intersection is a “T” intersection, with Harrison Street meeting Oakland Avenue on the east side thereof. A stop is present at the intersection which controls traffic on Harrison Street. No traffic control devices are present on Oakland Avenue at the intersection. RX 1, p. 5. Claimants’ Exhibit 19b provides an aerial view of the positioning of the ISP, Wilson, and Cook vehicles. Exhibit 19a provides an ariel view of Harrison and Oakland Avenues.

South of the crash location, there is a valley on Oakland Avenue Which causes traffic to travel below normal elevation prior to resuming at the normal elevation. RX 1. P. 18. When a vehicle in the deepest part of the valley, it is not visible to traffic stopped on Harrison Street at the intersection. TR, p. 275. The distance from the lowest portion of the valley to the impact area is approximately 1,139 feet. RX 1, p. 21.

The roadway returns to level approximately 770 feet from Harrison Street. RX 1, p. 22.

Wilson’s headlights would have been visible to Denning as he excited the valley from a distance of approximately 982 feet. TR, p. 249.

The ISPERN dispatch call involved an officer-involved shooting in Mahomet, Illinois. TR., p. 122. The incident occurred approximately 40 miles away from Denning’s location at the time he received the ISPERN dispatch call. TR., p. 90. After receiving the ISPERN dispatch, Denning responded that he would head to I-72, and testified it was his intention to travel toward Mahomet. TR., p. 88, 123. He proceeded north on Oakland Avenue in the left-hand northbound lane; the lane closest to the center turn lane. TR., p. 125-26.

ISP Directive OPS-081, Emergency/High Speed Response Driving sets forth four levels of Emergency Response driving; Codes 1-3, and Code Red. Claimants’ Exhibit (“CX”) 4. Denning determined the incident in Mahomet warranted a Code Red response. TR., p. 81. Denning did not look at his speedometer and did not know his specific speed while engaged in Code Red Emergency Response driving. TR., p. 100.

The first data available from the Airbag Control Module (“ACM”) of Denning’s vehicle establishes he was traveling between 106.92 and 109.8 miles per hour. RX 1, p. 13.

While engaged in Code Red Emergency Response Driving, Denning activated his emergency lights, but he did not have his siren on in a constant mode. RX 1, p. 24; TR., p. 92. Denning placed his siren in standby mode, which required him to manually operate the siren for quick bursts of sound. TR., p. 85, 91-92.

On May 7, 2016, at approximately 11:00 p.m., Decedent Wilson was operating a black Honda Odyssey van and was traveling westbound on Harrison Street. RX 1, p. 1- 2. Eyewitness Eric Cook testified that Wilson brought her vehicle to a stop at the stop sign and looked both ways for oncoming traffic before beginning to make a left-hand turn to head southbound on Oakland Avenue. CX 23a, p. 9-10. While turning through the intersection, Wilson’s vehicle was struck on the driver side by the vehicle operated by Denning. RX 1, p. 9. The collision occurred in the center turn lane, RX 1, p. 24. At the moment of impact, Denning was traveling at approximately 85.6 miles per hour. RX 1, [*184] p. 24. Wilson sustained multiple blunt force traumas, resulting in her death. RX 1, p. 12.

In an autopsy following her death, it was determined that Wilson had a blood alcohol level of .094, and a THC level of 8.6 ng/ml (Respondent’s Exhibit 1), which are both above the legal limits allowable by Illinois statute. 625 ILCS 5/11-501 (a)(1)(a person shall not drive or be in physical control of a vehicle with a BAC of .08 or above), (a)(7)( a person shall not drive or be in physical control of a vehicle with a THC level as defined in Section 11-501.2); and 625 ILCS 5/11 - 501.2(a)(6)(“Tetrahydrocannabinol concentration means 5 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of whole blood”).

Trooper Denning also sustained considerable personal injuries and was out of work for many weeks. He was criminally charged following the collision and entered into a negotiated pleas agreement for reckless conduct relating to his conduct in the collision which forms the basis of this lawsuit. The Court takes judicial notice of this plea. CX 10.

Trooper Denning, who was represented by counsel, stipulated to the following in his criminal case: [O]n Saturday night, May the 7th, 2016 at around 11 p.m. in the City of Decatur, County of Macon, 26-year-old Kelly Wilson was stopped at a Tintersection of West Harrison Street and Oakland Avenue preparing to make a left turn southbound on Oakland.

She entered the roadway and was about to turn south when her van that she was driving was struck broadside on the driver’s side by a state police squad car driven by Trooper Jeffrey Denning, the defendant here, causing the van to become airborne and causing Wilson’s death.

At the time of the collision, Trooper Denning, the defendant, was responding to an emergency notification while he was on duty that there had been a shooting involving of a police officer near or in Mahomet, Illinois, about 35 to 40 miles east of his location near south Oakland - south on Oakland, and that the shooter, the notification, might be traveling west on I-72 towards Decatur.

Denning was in the vicinity of Oakland Avenue south of the impending later crash site, and he activated his lights on his squad car, but not his siren in a constant mode, which is required by the pursuit rules of the state police. He did employ it, but intermittently manually, we could prove that.

And he headed north on Oakland at a high rate of speed with the intention of reaching I-72 to possibly intercept the shooter that was coming from Mahomet.

The posted speed limit at the point of the crash was 35 miles per hour, this being within the city limits of Decatur. The defendant’s speed at one time prior to the point of the crash reached approximately 108 miles an hour. Although the defendant’s lights were activated, the siren was not consistent or continuous [*185] mode. We can prove that Trooper Denning was unable to actually see Wilson entering the intersection at that speed.

An eyewitness to the collision, who would testify if there were a trial, had pulled to the right or westerly side of Oakland right near or at the T-intersection I spoke of. He pulled over because he did see down the road, and there was a dip, he could see some lights coming towards him, those were Trooper Denning’s lights that were activated. He would testify that he did not hear a siren.

But he did say that when he had pulled to the right at the intersection of Harrison and Oakland, he looked to his left and saw the van being driven by Kelly Wilson that stopped at the intersection, but then pulled forward in an attempt to turn left going south on Oakland. The State - so the crash occurred at that time.

So to substantiate the claim of reckless conduct, which has a similar, if not all the same, allegations in the more serious charge filed, we admit that the defendant caused the - we can prove that the defendant caused the accident by his high speed and his not having his siren in constant mode.

CX 10, p. 8-10.

Trooper Denning also offered the following testimony at his partial plea hearing: DIRECT EXAMINATION BY MR. PARKINSON: Q. On May 7, 2016, do you agree that you were operating your state issued vehicle northbound on Oakland Avenue in the City of Decatur approaching an intersection with West Harrison Street?

A. Yes.

Q. Do you agree that the posted speed limit on Oakland Avenue and in the city of Decatur at this location was 35 miles per hour?

A. Yes.

Q. Approximately two and a half seconds prior to the impact that your car made contact with the car driven - the vehicle driven by Kelley Wilson, do you agree that the State could prove that the - your vehicle was operating between 107 and 109 miles an hour?

A. Yes.

Q. As you were driving north responding to an emergency that you had received on your radio, do you agree that you did not activate your siren in a constant mode, but that did in a handheld manner operate it intermittently?

A. Yes.

Q. At the point of impact with Kelly Wilson’s vehicle, did you attempt to brake and that made your speed between 88 and 90 miles per hour at the point of impact?

A. Yes.

Q. And that we would have scientific evidence created by your own department that proved that was the approximate impact speed?

A. Yes.

Q. Do you agree that the speed of your vehicle, along with your failure to activate your siren in a constant mode, contributed to the collision?

A. Yes.

[*186] Q. Prior to the impact with Kelly Wilson’s vehicle, you failed to make a code red declaration at the time, which was required, but you were the only person on duty and you would have had to report to yourself that declaration?

A. Yes.

Q. Okay. Do you agree that while driving northbound on Oakland Avenue leading to the impact with Kelly Wilson’s vehicle, your actions of speed and failure to use your siren in a constant mode, those things were a contributing factor and a proximate cause for the motor collision with Kelly Wilson that led to her death?

A. Yes.

CX 10, p. 11-13.

At the hearing, Denning also agreed that as part of his pleas, he admitted that his speed would have limited his ability to respond to traffic, agreed he admitted his speed and failure to operate his siren contributed to the collision, and agreed he admitted that those actions were proximate cause of the collision and of Wilson’s dead. TR, p. 113-114 Denning was questioned about his driving reviews in cadet training, there were some criticisms of a few aspects of his driving as a cadet, though he obviously passed cadet training. CX 13; TR, p. 52-62. The Court accords no weight to any alleged issues Denning may have faced as a cadet and finds that it bears no relationship or relevance to the issues herein.

The ISPERN dispatch call involved an officer-involved shooting in Mahomet, Illinois. TR., p. 122. Denning listened to dispatch audio regarding the incident, including his own responses to dispatch and those of other officers and law enforcement entities.

TR, p. 88-91, CX 7. He agreed multiple other law enforcement agencies were responding, and that another ISP officer was approximately 15 miles from the incident. TR, p. 89-90.

The incident occurred approximately 40 miles away from Denning’s location at the time he received the ISPERN dispatch call. TR., p. 90.

Denning testified he had gone to Decatur that night because it was a Saturday and was the night before Mother’s Day. TR, p. 70, 136. He believed there would potentially be more traffic, and he might see more DUIs. TR, p. 70, 136. He reviewed videos from the camera in his vehicle, a copy of which was submitted ad Claimant’s Exhibit 8. TR, p. 70- 75. He agreed his camera did not capture the collision. TR, p. 71. Denning reviewed Section 5/11-205 of the Illinois Vehicle Code. TR, p. 75-76; CX 6. He was familiar with the statute, and testified he would have been made aware of it as a cadet and taught it is an instructor. TR, p. 75-76. He agreed it required him to act with due regard for the safety of others while operating his vehicle. TR, p. 76.

Denning reviewed ISP Directive OPS-081, Emergency/ High Speed Response Driving, and testified he was operating his vehicle subject to the policy on May 7, 2016.

TR, p. 76-78-; CX 4. He agreed OPS-081 sets fourth four levels of Emergency Response driving; Codes 1-3, and Code Red. TR, p. 79-80; CX 4. He testified the difference between Code 3 and Code Red is subtle, and his interpretation is that Code Red is for a more immediate situation. TR, p. 80. Denning made the determination to respond Code Red.

TR, p. 81. He agreed the policy states an officer is to advise communication of what responding code will be used, and admitted he did not advise dispatch of his determination. TR, p. 81. He agreed the policy required the use of emergency lighting [*187] and audible signals as required by law while engaged in a Code Red response. TR, p. 83.

He agreed the policy required officers to constantly monitor the speed of surrounding traffic, to operate with a mindset that other drivers are not aware of their approach, and to be prepared for an inappropriate driving response from other drivers. TR, p. 83-84.

Denning testified other drivers are made aware of an officer’s presence by the emergency lights and siren, and that he had the means to operate his siren in a constant mode. TR, p. 84-85. He admitted that while responding on May 7, 2016, he did not have his siren in a continual mode, but rather had it in standby mode, which meant he had to manually activate the siren while driving, TR, p. 85. He testified he activated the siren in short bursts a couple of times, first approximately half a mile from the impact site. TR, p. 103-14. While he believes he hit it two or three times total, he could not say where or whether it was before or after the valley. TR, p. 92-93.

Denning confirmed he stated to dispatch that he would head toward I-72. CX 7, TR, p. 90. As he was heading toward I-72, he traveled northbound on Oakland Avenue in the left-hand lane; the lane closest to the center turn lane. TR, p. 125-26. He agreed that his vehicle’s computer system recorded a speed of approximately 108 miles per hour, and he testified he had no reason to dispute his speed. TR, p. 100. He admitted he knew he was going fast, but was not aware of his exact speed. TR, p. 100. He did not look at his speedometer. TR, p. 100. While he recalls that he had driven over 100 miles per hour on the interstate or a country road prior to May 7, 2016, he could not recall whether he had done so on a city street. TR, p. 101. Denning testified he had no reason to dispute reconstruction expert Thomas Green’s calculation that, as Denning exited the valley, he was 982 feet from the intersection with Harrison, and that he would have had an unobstructed view to the intersection. TR, p. 101-02, 106. Denning agreed that, according to his vehicle’s computer system the first evasive action he took, including moving to the left and activating his brakes, occurred approximately 1.5 seconds prior to the collision. TR, p. 106-08. He agreed that would have been approximately the first time he saw Wilson’s vehicle. TR, p. 108-09. When Denning first observed Wilson’s vehicle it was in the lane to his right and was a blur. TR, p. 110.

Denning admitted that by leaving his siren in standby mode other vehicles might not hear his approach, that the greater his speed, the greater the chance of a collision, and that when approaching an intersection, an officer should activate the siren. TR, p. 112.

Ella Stolz. Ella Stolz is fourteen-years old and was seven-years old at the time of her mother’s death. TR, p. 36, 39. She is currently a freshman in high school and lives with her Aunt Megan, who is her mother’s sister. TR, p. 37. She had not seen her father since December of 2017. TR, p. 38. Ella testified regarding her memories of her mother, and regarding her grief and sorrow since her passing. TR, p. 40-42. Ella identified Claimants’ Exhibit 37h as something she wrote. The exhibit consists of a list of her family made on November 4, 2016, and includes her mother’s name next to a drawing of an angel. CX 37h.

Addison Crowder. Addison crowder testified she is eight-years old, and that she lives with her father. TR, p. 45-46. She was two years-old when her mother, Kelly Wilson, died. TR, p. 46. She testified she remembers her mother a little, and testified regarding her grief and sorrow since her passing. TR, p. 46-48. Addison identified Claimants’ [*188] Exhibit 37g as a drawing she made for her mother’s birthday on September 3, 2022. CX 37g. She made it because she missed her, and wrote “I love you, mommy.” CX 37g. She went to her mother’s grave site on her birthday and told her she loved her. TR, p. 37.

Megan Wilson, Decedent’s sister. Megan Wilson testified Wilson was a good mother and was with her daughters all the time. TR, p. 150. Wilson was a single mother, and Ella’s father was absent. TR, p. 153. Ella came to live with Megan, her boyfriend, their daughter, and her boyfriend’s two sons in 2017. TR, p. 157-59. Certain things will trigger Ella (for example, prom dress shopping) and she will become upset. TR, p. 160- 61. Ella has spoken with a counselor. TR, p. 161. Wilson had a close relationship with her children. TR, p. 165-73; CX 22. Ella and Addison talk about their mother, usually when they look at pictures. TR, p. 174-75.

Katherine Wilson, Decedent’s mother. Katherine Wilson testified she was close with Wilson and helped Wilson with Ella because Wilson was a young mother. TR, p. 177-78. Wilson and Ella would come to her house every day, and they all liked hanging out together. TR, p. 178-79. Wilson was a good mother; she played with the girls and made sure they had what they needed, even if she did not have a lot of money. TR, p. 178.

Wilson was very close with her daughters. TR, p. 181. Both of Wilson’s daughters attended the funeral. TR, p. 183-84. Ella lived with Katherine and Leo for a while after Wilson’s death and usually kept things to herself because she did not want to make everyone cry. TR, p. 184-185. Addison talks about her mother a lot and is very curious about her, but she only knows her through videos and things. TR, p. 187-88.

Leo Wilson, Decedent’s father. Leo Wilson testified he lives on Lake Decatur, and that his home was the gathering spot for his family. TR, p. 193-95. He testified Wilson was an excellent mother and “overall she is probably one of the most exceptional persons there ever was on this earth.” TR, p. 196. The day of Wilson’s death was a nightmare, and it still is every day. TR, p. 197-98. They bring the girls to the grave site two or three times a year; such as on her birthday or for holidays. TR, p. 200-01. He testified that Ella holds her grief in too much, and that when it does break loose, it is almost like she has a nervous breakdown. TR, p. 201.

Stephen Coady, ISP Traffic Crash Reconstructionist. Stephen Coady testified he is a Master Seargent with ISP in the Traffic Crash Reconstructionist Unit. TR, p. 202.

He created a report of his findings. TR, p. 205-08, RX 1. Coady reviewed the report prepared by Claimants’ reconstruction expert, Thomas Green, and overall conclusions of each report were similar. TR, p. 208. He testified one difference between the two reports was the drag factor used to calculate Denning’s deceleration; Green used 0.75, and Coady used 0.86. TR, p. 208-11. He testified as to his methodology in arriving at his figure, but he acknowledged that Green’s figure was reasonable, and he would not characterize the difference as major. TR, p. 208-12. He also disagreed with Green’s opinions as to Wilson’s speed at impact, which Green had as between 16 and 18 miles per hour, and Coady had as 11.3. TR, p. 211-12. He again testified that Green’s figures were plausible and that he would not characterize their differences as major. TR, p. 212.

[*189] Coady also testified that, as a matter of policy, ISP does not perform crash avoidance analysis, though he acknowledged he has done them in the past and that it is an accurate form of analysis. TR, p. 212-23. When asked whether he agreed with Green’s crash avoidance conclusions, Coady testified he did not do the calculation. TR, p. 284.

Coady performed a visibility test, the video of which is included in Respondent’s Exhibit 1. TR, p. 214; RX 1. He did not run a test to demonstrate Denning’s visibility. TR, p. 264.

Coady stood where he believed a reasonable person would have stopped on Harrison, and an ISP car started from south of the crash site. TR, p. 214-15. The ISP car drove north with its lights on, and testified he could see the car descend into the valley. TR, p. 215. He estimated the ISP car was traveling at 40 miles per hour; they did not want to drive 100 miles per hour because they could not control every conceivable entrance to the road. TR, p. 216. He would never have run the test at 108 miles per hour in town, as it would have been unnecessary risk, TR, p. 263-64.

Coady testified the video was probably taken from a height of 5 feet 20 inches, but agreed he did not know the height of Wilson’s eye line as she would have been sitting in her vehicle. TR, p. 264-65. He confirmed the ISP car had been in the right-hand lane, and agreed this was not the same lane Denning had been in according to his testimony. TR, p. 266-67. He agreed he did not perform a test with the ISP car operating its siren. TR, p. 267. He admitted he did not attempt whatsoever to duplicate the amount of time Kelly Wilson would have had to view Denning’s vehicle. TR, p. 270-71. He testified the headlights and wig-wags washed out the red and blue light, which were not discernable until the vehicle was close. TR, p. 217-72.

Denning’s speed at 2.5 seconds prior to the collision was 108 miles per hour. TR, p. 236-37. Green had calculated it would take a vehicle traveling at 108 miles per hour 520 feet to come to a complete stop; as Coady used a different drag factor, he calculates the distance at 452 feet, which he agreed was still longer than the distance Denning was from the impact site at the minus 2.5 second interval. TR, p. 239-42. The ACM first recorded hard braking from Denning at 1.5 seconds prior to the impact; which Coady concluded was when Denning began emergency braking. TR, p. 24-45. Coady agreed nothing would have obstructed Denning’s view of Kelly Wilson, and could not say why Denning did not apply his brakes earlier. TR, p. 250. Coady testified he had measured skid marks of Denning’s pre-accident braking, and that they measured less than 25 feet.

TR, p. 260-61.

Perception Reaction Time (PRT) is the amount of time it takes someone to see a hazard, perceive the hazard, process the hazard and then begin evasive maneuvers to avoid the hazard. TR, p. 245, 254. Denning’s vehicle would have been visible to Kelly Wilson for approximately 0.567 to 1.769 seconds before she began her turn. TR, p. 252.

Coady was not able to say whether Wilson would have perceived Denning to be a hazard and could not say whether Wilson would have been able to perceive Denning’s speed in that amount of time. TR, p. 257, 283-84. Coady would have operated his siren in a continual mode when traveling 108 miles per hour on a city street, and operating the siren in a continual mode would have been exercising due care. TR, p. 272-73.

[*190] Evidence Depositions

Eric Cook, Claimants’ Exhibit 23 (eyewitness). Eric Cook testified he was a witness to a motor vehicle collision which occurred at the intersection of Oakland and Harrison Street on May 7, 2016, at approximately 11:00 p.m., and that he still has an independent recollection of the accident. CX 23a, p. 6. Prior to the accident, he left a gas station and began to travel southbound on Oakland. CX 23a, p. 7-8.

As he left the gas station, he rolled his window down for the breeze, and heard the roaring of an engine. CX 23a, p. 9. Cook could hear the roaring engine “plain as day.”

CX 23a, p. 12. He began to look for the source of the noise, and saw an officer way down the street. CX 23a, p. 9. The officer did not have his siren on. CX 23a, p. 9. He did observe emergency lights, but they did not appear red and blue. CX 23a, p. 24. Upon seeing and hearing Denning’s vehicle, Cook “stopped immediately.” CX23a, p. 9.

Claimants presented a photograph from their human factors expert (Dinakar) which approximates the vantage point if Mr. Cook looking at the intersection of Harrison and Oakland. CX 29a, Ex. 10.

Cook did not have a stop sign when he stopped his vehicle as he was traveling southbound on Oakland Avenue which has two southbound lanes and comes to a tintersection with Harrison, whose drivers (such as Wilson) do have a stop sign. CX 23a, pp. 8-9. Cook observed a SUV or minivan, which he later learned to have been driven by Wilson, come up on Harrison and make a stop. CX 23a, 9-10.

Cook testified he was able to see Wilson’s hair, and that it moved left and right as if she was looking for traffic, and then she crept up a little but, came to a complete stop, looked again, and then proceeded into the intersection. CX 23a, p. 10. Wilson looked toward his vehicle as she entered the intersection. CX 23a, p. 10.

There is a valley as a vehicle approaches the intersection. CX 23a, p. 11. In Cook’s experience, when driving on Harrison and looking left, a driver cannot see cars coming when they enter the valley. CX 23a, p. 11. Cook testified that when Wilson began her turn, the ISP vehicle was in the valley. When he initially saw the ISP vehicle it was further down the road and had not yet entered the valley. CX 23a, p. 12.

Cook testified that the officer turned left to try to avoid Wilson. CX 23a, p. 13.

Cook testified that Wilson “stepped on the gas” before the collision to try to avoid it. CX 23a, p. 14. After the collision, Wilson’s vehicle went in the air, did a barrel roll, came down, and slid. CX 23a, p. 13.

No other vehicles were present before the collision, and Cook did not see anything that would have caused a distraction to the driver of the ISP vehicle. CX 23a, p. 15. He did not hear the driver of the ISP vehicle apply his brakes. CX 23a, p. 16. Cook speculated that he did not believe there was anything Wilson could have done to avoid the accident and further speculated that Wilson would not have been able to see the ISP [*191] vehicle. CX 23a, p. 17. He did not observe anything about her driving which he found to be unusual. CX 23a, p. 17.

Tammy Jones, Claimants’ Exhibit 24 (damages witness). Wilson was employed at Panera Bread prior to her death. Tammy Jones testified she is currently employed at Panera in Decatur, and in May 2016, she was the general manager. CX 24a, p. 4-5. The starting position at Panera is an associate, and in that role an employee would service the customers, for example by taking orders or working in the line making sandwiches. CX 24a, p. 6-7. The next progression would be into a trainer position, which included a raise of $0.25 or $0.50 an hour. CX 24a, p. 7-8. The next position would be a shift manager, which would also come with a raise of $1.00 or $2.00 an hour. CX 24a, p. 8-9. She testified she had been with Panera for twenty-two or twenty-three years, and the company provides opportunities for people to make a career. CX 24a, p, 9-10.

Wilson was hired at the Panera on October 18, 2015, and she initially worked as a line production opener on the morning shift. CX 24a, p. 11-12. It was a near full time position, and she earned $8.75 an hour. CX 24a, p. 13. Wilson was a dependable employee and a fast learner. CX 24, p. 13. Wilson was on track to become a trainer, and would have been a good choice to become shift manager in the future. CX 24b. As a shift manager, Wilson would have earned $12.00 an hour in 2016, and now it would be $15.00 an hour. CX 24a, p. 18-19.

Krystina Petitt (Ela Stol’z teacher), Claimants’ Exhibit 25. Krystina Petitt was the third-grade teacher for Wilson’s eldest daughter, Ella Stolz. CX 25a, p. 7. She had initially met Ella prior to Wilson’s death towards the end of the previous school year, as they would bring second graders in to observe the third-grade class to help them get accustomed. CS 25a, p. 7-8. Petitt attended Wilson’s visitation, along with other school staff, and Ella came up and gave her a hug. CX 25a, p. 9-10. Petitt met with Ella during the summer and they discussed the death of Ella’s mother and absence of her father. CX 25a, p. 15-19. Ella misses her mother. CX 25a, p. 18. Petitt took on the role of counselor. CX 25a, p. 20.

TyKyna Cole (Ella’s counselor), Claimants’ Exhibit 26. TyKyna Cole is a licensed clinical professional counselor who began seeing Ella in May of 2021, and has seen her for seven sessions. CX 26a, p. 7. Cole and Ella had discussed that she lived with her mother before she was killed, and then issues began with her father not showing up or being active in Ella’s life. CX 26a, p. 8-9. Ella talked about how she had learned details of her mother’s passing through the internet, and they worked to process what happened. CX 26a, p. 10-11. She diagnosed Ella with adjustment disorder as she had to adjust so many times as a result of her mother’s passing. CX 26a, p. 11. She had to move a lot and change schools, and lost the security of having her mother. CX 26a, p. 11-13. Cole opined that the loss of Ella’s relationship with her father makes the loss of her mother worse, because if her mother was still alive, she would not have to worry about her father, CX 26, p. 20-21. Her mother had been the sole caretaker, so if she had not died, she would not be faced with her father’s absence in the same way. CX 26a, p. 21.

[*192] Andrew Scott (police procedures expert), Claimants’ Exhibit 27. Andrew Scott testified he had been a police chief from 1999 to 2006, and that he began his law enforcement career in 1978. CX 27a, p. 8. He holds a Doctorate in Criminal Justice. CX 28a, p. 5-18, CX 27b. Scott testified there is a “balance test” between the need to get to a particular emergency versus the safety of general public, which relates to the issue of driving with due care. CX 27a, p. 16-17. He testified regarding the dangers of driving over 100 miles per hour, particularly on a city street with a condensed population and more traffic. Civilians may behave unexpectedly or might not see a police vehicle, particularly an unmarked vehicle. When engaged in emergency response driving, the safest practice is to activate the siren in a continuous mode combined with lights. CX 27a, p. 29-31.

Scott reviewed ISP Directive OPS-081, Emergency/High- Speed Response Driving.

The Code Red response option gives officers a green light to drive at any speed and sets up the officer to drive recklessly and endangers the public. CX 27a, p. 33. He noted the definitions for a Code Red response are identical to those for Code 3, which places limits on an officers’ speed. CX 27a, p. 34-35. Scott noted OPS*081 Section III.A defines driving with due care or regard ad “driving in such a manner as to avoid any predictable loss of control or collision. Driving with due care and regard is measured by what a reasonable and prudent emergency vehicle operator would do under all circumstances, including that of an emergency.” CX 27a, p. 36-37.

Denning failed to recognize the inherent dangers associated with emergency response driving at approximately 108 miles per hour in a 35 mile per hour zone. CX 27a, p. 42.

One of the most basic things an officer is trained to do when engaged in emergency response driving is to know their speed in relationship to the speed zone and other vehicles. CX 27a, p. 43. Denning had no time to stop once he saw Wilson. CX 27a, p. 45. As speed increases, reaction time decreases, so his speeding contributed to him not being able to understand that Wilson was in the intersection. CX 27a, p. 46-47. The maximum speed Denning should have been driving would have been 30 miles per hour over the speed limit, or 65 miles per hour. CX 27a, p. 47-48.

OPS-081 requires the use of lights and sirens to warn other drivers of their approach during an emergency response. Applying a balancing test, no factors would favor Denning driving at that speed, as he could not justify an officer traveling at that speed with a minimal possibility of doing anything and then putting the general public in jeopardy. CX 27a, p. 41. Denning failed to exercise due care and was reckless in the operation of his ISP motor vehicle.

Thomas Green (Claimants’ accident reconstructionist), Claimants’ Exhibit 28. Thomas Green testified he is a consultant in the area of crash reconstructionist and vehicle systems analysis. CX 28a, p. 7. At 2.5 seconds prior to the crash, Denning was traveling at 108 miles per hour. CX 28a, p. 30. At that time, he had already applied his brakes, so he could have been traveling faster before the 2.5 second interval. CX 28a, p. 31. As a vehicle proceeds northbound on Oakland Avenue towards the intersection with Harrison Street, there is a valley, and a vehicle within the valley cannot see what is on Harrison Street, nor could a vehicle on Harrison Street see the vehicle in the valley. CX 28a, p. 34.

[*193] Denning’s speed of 108 miles per hour at 2.5 seconds prior to the collision was over three times the legal speed limit of 35 miles per hour and equates to traveling at 158.4 feet per second, or the length of a football field in two seconds. CX 28a, p. 46-47.

Green calculated that Denning was traveling at 80 to 82 miles per hour at the time of impact, which was within the range calculated by ISP Reconstructionist Coady. CX 28a, p. 49-50.

Green testified that as a vehicle is northbound on Oakland and further than 1,224 feet from Harrison, its headlights would be visible to a vehicle stopped on Harrison. CX 28a, p. 58. At 1,082 feet away from Harrison, the approaching vehicle would enter the valley and would not be visible. CX 28a, p. 58. Denning’s emergency lights would have been visible to Wilson from as far as 1057 feet away. CX 28a, p. 58. Additionally, the headlights of Wilson’s vehicle would have been visible to a vehicle exiting the valley from 982.6 feet away. CX 28a, p. 59. Wilson’s headlights would have been visible to Denning for 654.6 feet before the first recorded braking occurred at 2.5 seconds and 328 feet prior to impact. CX 28a, p. 59-60.

At 108 miles per hour, Denning could have traveled the 1,057.2 feet over which his emergency lights would have been visible to Wilson for 6.67 seconds; the 982 feet over which Wilson’s headlights would have been visible to Denning for 6.2 seconds. CX 28a, p. 61-63. At the speed limit of 35 miles per hour, Denning would have covered those distances in approximately three times as many seconds. CX 28a, p. 61-62. As a vehicle doubles its speed its stopping distance increases by a factor of nine. CX 28a, p. 64.

Traveling at 108 miles per hour on a dry roadway, the braking distance for a vehicle to come to a complete stop is approximately 520 feet. CX 28a, p. 64. At the speed limit of 35 miles per hour, it would take 55 feet. CX 28a, p. 65. Had Denning fully applied his brakes at 328 feet from the point of impact, he could have brought his vehicle to a complete stop within that distance if he had been traveling at 85 miles per hour. CX 28a, p. 65-66. At any speed under 85 miles per hour, still over twice the speed limit, had Denning applied his brakes at the same point he would have avoided the collision. CX 28a, p. 66-67.

Had Wilson’s vehicle traveled another 12 feet, she would have cleared the path of Denning’s vehicle. CX 28a, p. 68. It would have taken her less than half a second to travel that distance, so if Denning’s vehicle had arrived even half a second later, the collision would not have occurred. CX 28a, p. 68. Wilson had cleared both northbound lanes of traffic at the point of impact, which occurred in the center turn lane and partially in the southbound lanes. CX 28a, p. 69-70. Denning could have avoided the accident had he traveled at a speed less than 108 miles per hour or if he had stayed in his lane of travel.

CX 28a, p. 70-71.

Swaroop Dinakar (human factors expert), Claimants’ Exhibit 29. Swaroop Dinakar is a senior scientist in human factors with the Crash Safety Research Center and an adjunct instructor with the Institute for Police Training and Management. CX 29a, p. 6. He testified he used a software program which consists of a compilation of driver response research to evaluate gap acceptance and elevated crash risk from driving faster than the speed limit. CX 29a, p. 18-21. It was significant that Denning did not operate his [*194] siren in a continuous mode as drivers respond better when they have more information.

CX 29a, p. 50-51. Especially where sight line is an issue, sirens along with flashing lights would provide additional information. CX 29a, p. 51.

A vehicle stopped in Wilson’s location would perceive a 17 second gap from the time a vehicle exited the valley on Oakland Avenue when traveling at the speed limit, and almost all drivers would enter an intersection with such gap. CX 29a, p. 59. Due to Denning’s speed, however, the actual gap was approximately 5.5 seconds. CX 29a, p. 59.

He testified that drivers are not very good at recognizing speed and are significantly worse from a distance greater than 400 or 450 feet. CX 29a, p. 60.

Dinakar provided an exhibit (CX 29a, EX. 5) which is a useful aerial view of the intersection in question, the direction of travel of the vehicles. And point of impact. In addition, Dinakar provided a ground-level photo (taken during the day) of the intersection. CX 29a, EX 6. The stop sign depicted therein is the stop sign that Kelly Wilson would have faced as she approached the T-intersection. CX 29a, p. 29.

Dinakar stated the greatest single factor in the collision was Denning driving over 100 MPH. CX 29a, p. 75.

Jennifer Bash (forensic toxicologist), Claimants’ Exhibit 30. Jennifer Bash is a forensic toxicologist for the University of Illinois at Chicago in their analytical forensic testing lab. CX 30a, p. 4. She is Board Certified by the American Board of Forensic Toxicology. CX 30a, p. 13-14.

Bash testified that toxicology impairment cannot be determined solely through laboratory testing; it can only be determined through clinical observation or field sobriety testing by an expert trained to make observations for the purposes of impairment, and that absent such observations, no determination as to impairment can be made. CX 30a, p. 23. Toxicologists simply provide testing; they do not speak to impairment. CX 30a, p. 23. They know a range of clinical effects that can be exhibited at a certain blood alcohol concentrations (“BAC”), but whether someone is going to exhibit all of those clinical effects or just a subset, you cannot say without observation of the individual. CX 30a, p. 23-24. “There will always be some clinical effects with an active compound in the blood because it’s circulating and affecting the receptor sites”. CX 30a, p. 26. Bash testified that, “it is not possible to toxicologically determine which clinical effects an individual may be experiencing as a result of alcohol consumption based solely on the BAC, any impairment determination must be based on direct observation of the individual. CX 30a, p. 27. In this case, there were no field sobriety tests or clinical observations of Wilson. CX 30a, p. 24.

Cannabis consumption can also produce a wide range of clinical effects, so the exact clinical effects an individual would experience similarly cannot be determined solely based on tetrahydrocannabinol (“THC”) levels. CX 301, p. 29-30. The clinical effects are always going to be broad, and an individual could experience all, or only some. CX 30a, p. 30. THC affects people differently, for example chronic users will have slightly different effects. CX 30a, p. 30. Because it is not possible to determine which [*195] clinical effects an individual may experience at a particular THC level, any impairment determination must be based on direct observation of the individual. CX 30a, p. 31-32.

Consumption of alcohol and cannabis together can affect the clinical effects of each substance, but exactly which clinical effects are affected cannot be determined solely based on laboratory testing. CX 30, p. 32-33. “When you combine substances in an individual’s body, generally speaking, they will have additive effects.” CX 30a, p. 33, 42- 43. Even when used together, observation is required to determine impairment. CX 30a, p. 33. Wilson would have experienced “some clinical effects” from ingesting alcohol and THC because, “[y]ou can’t have am active compound in the blood without clinical effects.” CX 30a, p. 41.

Bash testified that Wilson cannot be found to have been impaired based solely on laboratory testing results, or by the fact that a combination of alcohol and cannabis were found in her system. CX 30a, p. 34-35. The exact clinical effects an individual exhibits can only be determined through observation. CX 30a, p. 35.

Dr. Edward Sattler (economist), Claimants’ Exhibit 31. Dr. Edward Sattler retired from Bradley University in 2019 as a full professor in the Department of Economics. CX 31a, 9. 5-6. His primary field of study since 1982 was forensic economics, which involves the determination of future economic losses. CX 31a, p. 10. Dr. Sattler testified as to his methodology in calculating and projecting Wilson’s future losses through her youngest child’s eighteenth birthday. CX 31a, p. 12-24. He calculated her future lost household contributions to be $319,915.00, and calculated her future lost wages to be $255,282.00. CX 31a, p. 19, 24. He calculated the total economic losses to Wilson’s estate to be $575,197.00. CX 31a, p. 25.

III. APPLICABLE LAW

Pursuant to 705 ILCS 508(d), the Court of Claims has “exclusive jurisdiction” of enumerated matters, specifically including “[a]ll claims against the State for damages sounding in tort…” in any negligence action, the Court must examine the following four elements: duty, breach of duty, causation and damages. Chraca v. State, 73 Ill. Ct. Cl. 77 (2021); Ward v. K-Mart, 136 Ill.2d 132, 140, 143 (1990). In negligence actions, courts should not view a party’s acts with the clarity of hindsight, but by a standard of what a prudent person would have done under the same circumstances. Yates v. Shackelford, 336 III.App.3d 796, 805 (2002).

As we observed in Chraca, the Illinois Civil Pattern Jury Instructions (“IPI”) contain principles relevant to this Court’s analysis of the facts and legal issues:

• IPI 10.01 defines “negligence” as the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not, under circumstances similar to those shown by the evidence. • IPI 10.02 provides that “ordinary care means the care a reasonably careful person would use under circumstances similar to those shown by the evidence” [*196] • IPI 10.03 provides, in relevant part, it is the duty of the plaintiff, before and at the time of the occurrence, to use ordinary care for his own safety. A plaintiff is contributorily negligent id (1) he fails to use ordinary care for his own safety and (2) his failure to use such ordinary care is a proximate cause of the alleged injury. If the plaintiff’s contributory negligence is more than 50% of the total proximate cause of the injury or damage for which recovery is sought, the defendant shall be found not liable. See also 735 ILCS 5/2-1116. • IPI 21.01 defines the burden of proof and provides that the finder of fact “must be persuaded, considering all of the evidence in this case that the proposition on which a party has the burden of proof is more probably true than not true.”

Chraca, 73 Ill. Ct. Cl. At 89-90.

Violation of a statute. IPI 60.00 provides, in pertinent part, :if you find… that [the party] violated the [statute]… on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether and to what extent, if any, [a party]… [was]… negligent before and at … the time of the occurrence.

The commentary to Illinois Pattern Jury Instruction 60.00 further provides:

In a negligence or product liability action, and certain other cases, relevant legislation may be admitted into evidence to assist the trier of fact in determining the applicable standard of conduct. Thus, in Illinois, violation of a statute, ordinance, or an administrative ruling, regulation or order designed for the protection of human life or property is prima facie evidence of negligence or other fault. French v. City of Springfield, 65 Ill.2d 74, 357 N.E.2d 438, 2 Ill.Dec. 271 (1976); Davis v. Marathon Oil Co., 64 Ill.2d 380, 356 N.E.2d 93, 1 Ill.Dec. 93 (1976); Dini v. Naiditch, 20 Ill.2d 406,417; 170 N.E.2d 881, 886 (1960). Where it is shown that a party has violated a statute, this prima facie evidence of his negligence may be rebutted by proof that the party acted reasonably under the circumstances of the case, despite the violation. Johnson v. Pendergast, 308 Ill. 255, 139 N.E. 407 (1923); Davis v. Marathon Oil Co., 64 Ill.2d 380, 356 N.E.2d 93, 1 Ill.Dec. 93 (1976).

The prima facie evidence of negligence does not, of course, establish a prima facie case of liability, since the element of proximate cause must still be proved.

Tenenbaum v. City of Chicago, 60 Ill.2d 363, 325 N.E.2d 607 (1975); Ney v. Yellow Cab Co., 2 Ill.2d 74, 78-79; 117 N.E.2d 74, 77-78 (1954).

Illinois Pattern jury Instructions - Civil - Section 60.00 Statutory Violations.

General Speed Restrictions. The general speed restrictions set forth in Section 11-601 of the Illinois Vehicle Code are also relevant to the Claimant’s claim, as well as any issue of comparative fault on the part of the Decedent. That section provides as follows:

[*197] Sec. 11-601. General speed restrictions.

a) No vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property….speed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.

625 ILCS 5/11-601 (a).

Drivers of Emergency Vehicles. Section 11-205 of the Illinois Vehicle Code also allows the following for a driver of an authorized emergency vehicle, when responding to an emergency call, to:

(c) “[e]xceed the maximum speed limits so long as he does not endanger life or property.” 625 ILCS 5/11-205(c).

(d) “…[t]he exceptions herein granted to an authorized emergency vehicle, other than a police vehicle, shall apply only when vehicle is making use of either an audible signal when in motion or visual signals meeting the requirements of Section 12-215 of this Act’ (625 ILCS 5/11-205(d)), and, (e) ‘[t]he foregoing provisions do not relieve the driver of an authorized emergency vehicle from the duty of driving with due regard for the safety of all persons, nor do such provisions protect the driver from the consequences of his reckless disregard for the safety of others.” 625 ILCS 5/11-205(e).

The Court applies these legal standards to the facts to evaluate whether the Decedent, Trooper Denning, or both were negligent in their duty to use ordinary care.

IV. ANALYSIS

A. Public Official and Statutory Immunity is Inapplicable Contrary to Respondent’s arguments, public official immunity and the limited immunity granted by 625 ILCS 5/11-205(f) are inapplicable. A State employee driving an emergency vehicle owes a duty to operate with due regard for the safety of the motorist public. Dorsey v. State, 63 Ill. Ct. Cl. 177, 199 (2011) citing 625 ILCS 5/11-205 (e), Koepp v. State, 46 Ill. Ct. Cl. 344 (1993); see also IPI (Civil) 70.00. The duty arises independently of the employee’s status as an employee of the State of Illinois. Id. at 200, citing Currie v. Lao, 198 Ill.App.3d 625, 556 N.E.2d 318 (3rd Dist. 1990), affirmed 148 Ill.2d 151, 592 N.E.2d 977 (Ill. 1992), 625 ILCS 5/11-205 (c)(3) and 5/11-205(e)(1).

B. Claimants are not attempting to interfere with ISP administrative policies [*198] Relying on our decisions in White v. State, 49 Ill. Ct. Cl. 187, 189 (1996); Holmes v.

State, 32 Ill. Ct. Cl. 275 (1978); Brady v. State, 32 Ill. Ct. Cl. 240, 241 (1977); and Tedder v.

State, 40 Ill. Ct. Cl. 201, 203 (1988), Respondent argues that Claimants are attempting to interfere with the ISP pursuit policies, Directives OPS-081 and ROC-002. However, that is not what Claimants are attempting to do. Rather, they are arguing that Trooper Denning, violated those policies, which is evidence of his negligence. To that extent, the Claimants’ arguments are proper.

However, the Court places little weight on Claimants’ arguments, at least with respect to whether a Code (other than a Code Red) should have been called. Claimants argue that, based on their out-of-state expert who has no specific familiarity with ISP policies, that Trooper Denning should have instead called a Code 3, which would have limited his speed to 65 MPH (30 miles over the posted limit of 35 MPH on Oakland Ave).

Whereas a Code Red (Code 4) does not contain any speed limitation. Claimants failed to establish that a Code 3 should have been called. At the end of the day, this is simply speculation by Claimants. However, Denning admitted that according to ISP policy (Claimants’ Exhibit 27a, p. 50), he should have been operating his siren in continuous mode. Denning admitted in his plea that this, in combination with his speed, was a proximate cause of the accident.

C. Sufficiency of Affirmative Defenses Although Claimants argue that Respondent insufficiently plead its affirmative defenses, the Court finds that Claimants waived this issue by not raising it prior to closing argument. In any event, the Court concludes that the affirmative defenses were sufficiently pled.

D. Denning Plea Agreement

Claimants argue that Trooper Denning’s admissions were conclusive as to the issues of negligence and proximate cause according to the doctrine of collateral estoppel.

Respondent did not address this argument in its closing brief, the Court finds that the criminal plea agreement by Denning is an admission by a party opponent and a statement against interest. Although the Claimants argue that Denning’s plea has collateral estoppel effect, the Court need not reach the merits of that argument because it finds the evidence adduced at the evidentiary hearing in this matter does not contradict the stipulated facts or testimony by Denning at his partially negotiated plea hearing. And, even if the plea admitting to reckless conduct was conclusive evidence of Dennings negligence, it does not obviate the need for the Court to review whether Decedent was contributorily negligent.

E. Negligence

Claimants must establish a duty owed to them, a breach of that duty, and damages proximately resulting from that breach. Koepp, supra.

F. Duty

[*199] The first element (whether Respondent owed a duty) is easily resolved. Trooper Denning had a duty to operate his vehicle with due regard for the safety of the Wilson vehicle. (Dorsey, 63 Ill. Ct. Cl. 177, 199) and to drive it at speeds that are reasonable and proper under the conditions that exist. 625 ILCS 5/11-601(a). Respondent does not argue to the contrary.

G. Breach of Duty If Trooper Denning violated the Illinois Code or ISP regulations, those violations can be considered in the determination of whether Respondent was negligent. IPI (Civil) 60.00. The violation of a statute (such as the Vehicle Code) that is designed to protect public health and safety is prima facie evidence of his negligence. French, 65 Ill.2d 74, 357 N.E.2d 438; Davis, 64 Ill.2d 380, 356 N.E.2d 93; Dani v. Naiditch, 20 Ill.2d 406, 417, 170 N.E.2d 881, 886. However, the Prima facie evidence can be rebutted by proof that a party acted reasonably. Johnson, 308 Ill. 255, 139 N.E 407 (1923); Davis, 64 Ill.2d 380, 356 N.E.2d 93.

Although Claimants only argue that Denning violated one provision of the Vehicle Code, Section 5/11-205 (addressing due regard for the safety of others), Section 5/11- 601 (a), which addresses traveling at a reasonable and proper speed, is also relevant.

In addition, Trooper Denning pled guilty to misdemeanor reckless conduct.

Claimants’ Ex. 10a and 10b. Section 5/12-5 of the Illinois Criminal Code provides that a person commits reckless conduct when they, by any means lawful or unlawful, recklessly perform an act or acts that: (1) cause bodily harm to or endanger the safety of another person; or (2) cause great bodily harm or permanent disability or disfigurement to another person… Reckless conduct under subdivision (a)(1) is a Class A Misdemeanor. Reckless conduct under subdivision (a)(2) is a Class 4 felony. 720 ILCS 5/12-5.

The Court notes that 625 ILCS 5/11-205(d), by its plain reading, requires that a non-police vehicle is only required to use either visual or audible signals. Neither visual nor audible signals are required by a police vehicle. Id. Claimants do not argue that Denning violated this provision of the statute, but the Court notes the existence of the statute because it appears that the ISP policies exceed what is required under the Vehicle Code. Instead, Claimants argue that Trooper Denning violated the “due regard” provision of Section 5/11-205(e).

No evidence was provided which suggests that Trooper Denning was charged with violating any provision of the Illinois Vehicle Code. However, ISP Captain Louis Kink and Master Seargent Stephen Coady each admitted that, when operating an emergency vehicle in excess of 100 miles per hour on a city street, activating the siren in a continuous mode would have been required in order to exercise due care. CX 36, p. 57; TR, p. 272-73. Thus, the Court concludes that Denning did not exercise due care.

Claimants argue that Thomas Green’s calculations and opinions regarding crash avoidance establish that: had Denning been traveling at any speed less than 85 miles [*200] per hour, he would have been able to bring his vehicle to a stop prior to the collision; had he been travelling at less than 108 miles an hour, Wilson would have cleared Denning’s path of travel; and had Denning stayed in his lane of travel, he would have avoided the collision. Claimants’ Reply Brief, p. 3, citing CX28a, p. 64-71. The Court will not second guess Trooper Denning’s decision to make an evasive maneuver by changing from the passing lane to the center turn lane to avoid the accident.

Claimants further argue that Master Seargent Coady (ISP reconstructionist) calculated Denning’s vehicle would have been visible to Wilson for approximately 0.567 to 1.769 seconds before she began her turn. TR, p. 252. Claimants argue that Denning’s vehicle either was not visible to Wilson at the time she began her turn or was visible for such a short amount of time, that Wilson would have been unable to perceive Denning’s vehicle and react. Claimants maintain that the “reds and blues” of Denning’s lights would have been visible at a distance. Respondent does not address this argument in its response. However, Claimants ignore eyewitness Cook’s testimony that he did observe Trooper Denning’s vehicle while it was almost a halfmile away and pulled over immediately to yield to Denning’s vehicle.

Nevertheless, the Court concludes that combination of Denning’s speed and lack of a continuous siren were a breach of his duties to operate his vehicle in due regard for the safety of other vehicles and to drive it at speeds that are reasonable and proper. The court also considers Denning’s plea to reckless conduct as further evidence of Denning’s negligence. Therefore, Claimants have established a prima facie case of Denning’s negligence.

Respondent attempts to rebut the evidence of Denning’s negligence with evidence that he acted reasonably, e.g., he was responding to a felony, used his siren intermittently, had his emergency lights operating, attempted to brake to avoid the collision, and took evasive maneuvers to avoid the collision.

The Court concludes, that despite these actions by Trooper Denning, he was not operating his vehicle with due regard for the safety of others. Therefore, the Court concludes he breached his duty to the Decedent.

H. Proximate Cause

Respondent argues that it is not liable and that there is no proximate cause because this was an “unavoidable collision.” Respondent’s Brief, p. 6-7. Respondent maintains Denning’s acts or omissions are not material when another vehicle suddenly swerves into his right-of-way and “the driver lacks sufficient time to take evasive action. More precisely, the motorist on the preferential road has the right to expect that a vehicle approaching the secondary road controlled by a stop sign and yield the right of way.” Id., Citing Smith v. Hancock, 2019 IL App (4th) 180704; Coale v.

Cent. Area Recycling, 384 Ill. App. 3d 390 (4th Dist. 2008) (affirming summary judgment in favor of defendant where plaintiff’s decedent failed to yield to right-ofway to garbage truck); Johnson v. May, 223 Ill. App. 3d 477 (2d Dist. 1992); Salo v.

Slinghurse, 181 Ill. App. 3d 641, 643 (5th Dist. 1989); 181 Ill. App. 3d 641, 643 (5th Dist. 1989); Hale v. Cravens, 129 Ill. App. 2d 466 472 (4th Dist. 1970); and Mai v. Cent. Sod Farms of Plainfield, 2011 IL App (2d) 11-0196-U, 4-8.

[*201] Respondent argues that the following facts support application of the doctrine: (i) Denning received an ISPERN call of an officer involved shooting in Mahomet, Illinois and advised that he would respond; (ii) Denning activated his emergency lights, placed his siren in standby mode and then proceeded north on Oakland Ave. in the left-hand northbound lane; (iii) Denning activated his siren in a couple of short bursts as he started down Oakland Avenue and two or three more times as he traveled, but he acknowledged that he had not yet hit the siren at the side street of Harrison because he had not yet made it to that intersection; (iv) the first time he observed the decedent’s vehicle was when it was in the lane to his right and he applied his brakes; and (v) Eric Cook, a witness to the accident, observed that the Decedent stopped her vehicle at the intersection of Oakland and Harrison and looked both ways through the movement of her hair and also observed the Decedent crept up a little further and came to a complete stop again, look both ways and proceed into the intersection while looking at him.

In short, Respondent argues that Denning was traveling on the preferential road and had the right-of-way pursuant to 625 ILCS 5/11-904, while the Decedent had a stop sign and duty to yield. Respondent argues that Denning was acting with due care by the use of his lights on and intermittent use of his siren.

However, while the Court agrees that Denning was traveling the preferential road and that Wilson had a duty to yield, Respondent ignores the undisputed evidence that shortly before the collision, Denning was traveling over 100 MPH and that he failed to operate his siren in continuous mode, the latter of which was a violation of departmental policy. Moreover, although the collective testimony of the accident reconstructionists might support an above average acceleration by the Decedent, the Court need not resolve that question for this analysis because there is no evidence that the Decedent suddenly swerved or entered her turn. Thus, the Court concludes that the unavoidable accident doctrine is inapplicable. Nevertheless, the Court must still address whether the breach of duty by Trooper Denning proximately caused the accident.

The Court concludes that Denning was the proximate cause of the accident.

Trooper Denning admitted in his plea and in open court at the hearing in this matter that he failed to operate his siren continuously. He admitted in his plea that his speed and non-continuous use of his siren were the proximate causes of the accident.

Again, the Court need not resolve whether his testimony and admissions from his criminal case establish, by themselves proximate causation in this related civil matter.

However, the Court is persuaded that based on the testimony of Trooper Denning and the two accident re-constructionists that Trooper Denning was traveling over 100 MPH and not continuously operating his siren. Driving over 100 MPH was too fast for conditions, and not using the siren was a violation of departmental policy. The undisputed evidence is that Trooper Denning’s vehicle collided with Decedent’s vehicle on the driver’s side, and there was no evidence presented on behalf of Respondent as to other factors, such as lack of visibility or other adverse weather conditions, or the involvement of another vehicle or object. Thus, Trooper Denning was the proximate cause of the collision as it was reasonably foreseeable that driving [*202] a police vehicle over 100 MPH on a city street without continuously operating a siren would lead to a collision with vehicles attempting to make a left-hand turn from a stop sign. In addition, Trooper Denning colliding with the Decedent’s vehicle was the actual cause of Decedent’s physical injuries.

I. Contributory Negligence

Before analyzing the amount of damages, if any, to which Claimants are entitled, the Court must examine the issue of the alleged contributory negligence on the part of the Decedent. Respondent argues that Claimant was more than 50% of the cause of the accident and is, therefore, barred from recovery. Claimants deny that Decedent was more than 50% contributorily negligent.

Specifically, Respondent argue that Sections 501.2(b)(3) and 501.2 (b-5)(1) of the Illinois Vehicle Code allow for the presumption that an individual was “under the influence” of alcohol and cannabis, respectively, where, as here, there is an alcohol concentration over .08 and a tetrahydrocannabinol (“THC”) concentration over 5 nanograms in whole blood. See 625 ILCS 501.2(b)(3)(alcohol) and (b-5)(1)(cannabis).

In pretrial rulings, the Commissioner admitted this evidence over the objection of the Claimants, finding it to be relevant to the issue of the contributory negligence, if any, of Decedent. Claimants, however, did not renew their objection to this evidence at the hearing. While Claimants waived this issue by not objecting at the hearing, the Court concludes that even if Claimant’s had not waived the issue, the evidence was properly admitted for purposes unrelated to showing that Decedent was, in fact, intoxicated.

Further, Respondent maintains that not only was Wilson presumed to be under the influence of both alcohol and cannabis while she was operating her vehicle on the night in question, Section 11-501(a)(1) of the Vehicle Code prohibits a person from driving a vehicle under such circumstances. See 625 ILCS 5/11-501(a)(1)(alcohol) and (a)(7)(cannabis); Wade v. City of Chicago Heights, 216 Ill. App. 3d 418, 431 (1st Dist. 1991).

However, it is sharply disputed by Claimants whether Decedent was actually intoxicated or under the influence. Indeed, Illinois law allows a party to rebut the presumption that they were driving under the influence by “relevant evidence bearing upon the question whether the person was under the influence of alcohol.” 625 ILCS 5/11-501.2(b)(4). Claimants’ position is essentially that there is no evidence (such as driving erratically or Decedent’s behavior prior to getting in her car) that Wilson was intoxicated or that her driving was, in fact, affected by her blood alcohol and THC levels.

Claimants cite Petraski v. Thedos, 2011 IL App (1st) 103218, 115, 963 N.E.2d 303, 321, for the proposition that given the dearth of evidence of intoxication or impairment, “these results, absent some evidence of Wilson’s conduct prior to the collision, the BAC and cannabis levels are insufficient to establish that Wilson was intoxicated as a result of the consumption of alcohol and cannabis at the time of the accident.” Claimants’ Brief p. 45. Claimants argue that the Decedent’s BAC here (.094) was less than the Petraski level (between .109 and .144), wherein the appellate court held that the admission of the defense expert’s testimony on impairment was [*203] inadmissible. 2011 IL App (1st) 103218, 83, 963 N.E.2d 303, 316. There, as here, there was no (or little) evidence of the driver’s pre-collision conduct or drinking.

Further, Claimants’ expert says that Decedent’s driving was consistent with a person not under the influence of alcohol. Claimants’ human factors expert, Swaroop Dinakar, testified that: (i) the Decedent’s decisions were consistent with what other attentive drivers would have done and her response was with the range of normal limits (Claimants’ Exhibit 29a, p. 55, 75) and (ii) that the Decedent’s actions did not demonstrate any level of impairment in how she responded on the night in question and that impairment was not a factor. Claimants’ Exhibit 29a, p. 62-63. However, Respondent argues that Dinakar’s testimony is not credible because “Mr. Dinakar did not testify that his studies or testing included someone who was driving while under the influence of drugs or alcohol in violation of an Illinois statute” or “how the Decedent’s decision to drive while under the influence affected her decision making in this accident.” Respondent’s Brief, p. 14.

Respondent appears to take the position, though it is not crystal clear, that Decedent was, in fact, under the influence and was not able to drive her vehicle in a safe manner, solely due to her TCH and BAC levels. Claimants argue that Respondent conflates being “under the influence” of a substance with being impaired by or intoxicated by use of a substance despite the concepts being legally distinct under Illinois law, and requires the Court to speculate as to facts and opinions not in evidence. Claimants’ Reply, p. 14.

It is uncontested that, at the time of the accident, the Decedent’s blood-alcohol level was 0.094, and her THC level was 8.6 ng/ml. Respondent’s Exhibit 1. Therefore, the following are true based upon a plain reading of the law: (a) both her alcohol and cannabis levels were above the legal limits allowable by Illinois law to operate a motor vehicle; (b) Wilson is presumed to have been under the influence of both alcohol and cannabis on May 7, 2016; (c) because both Wilson’s alcohol and cannabis levels were above the legal limits, she was prohibited by law from either driving or being in control of a vehicle.

To be sure, Respondent, relying on Claimants’ expert’s testimony, argues that Decedent was affected in some manner, at least, by her consumption of alcohol and cannabis. Thus, Respondent reason that Decedent was negligent because she was feeling at least some effects from her intake of alcohol and cannabis. Respondent cites Jennifer Bash, Claimants’ forensic toxicologist, who essentially testified that impairment cannot be determined by laboratory testing alone, but based on the Decedent’s blood alcohol and drug levels, she would have been experiencing some effects. Respondent’s Brief p. 14, citing Claimants’ Exhibit 30, p. 25-26, 30-31, 33.

Those effects include (for alcohol) a lack of inhibition, extra confidence, and effects on the thought and decision-making process. Claimants’ Exhibit 30a, p. 40.

Similarly, Bash acknowledged that the effects of cannabis consumption include being in a relaxed state, interference with short term memory processing, and an effect on decision making problems. Claimants’ Exhibit 30a, p. 42. Respondent maintains that notwithstanding the inability to ascertain the full extent that the drugs and alcohol consumed by the Decedent affected her decision making in this accident, [*204] Decedent would have been experiencing some effects, which requires that any award be reduced.

The Court concludes that while Petraski is factually distinguishable from the instant case, the Court agrees with its primary holding that intoxication cannot be proven by simply referring to BAC levels. Here, there is no expert testimony that has been admitted that Decedent was intoxicated due to THC and BAC levels alone. In Petraski, 3 THC levels were not an issue. Whereas, Ms. Wilson’s THC level was 72% higher than the legal limit to drive her vehicle. Still, despite these differences, the Court agrees that there was not sufficient evidence presented as to whether the Decedent was actually intoxicated or actually “under the influence.” The Court specifically makes no such finding and disregards any arguments made by the Respondent to the contrary.4 However, this does not resolve the question as to whether Decedent was contributorily negligent and does not render irrelevant her consumption of alcohol and cannabis to such an extent that Decedent was operating her motor vehicle above the acceptable statutory limits. The Court finds that it was not an error to admit this evidence and finds it relevant to the issue of contributory negligence for independent reasons that are not related to whether Decedent was intoxicated or impaired.

Although, not cited by either party, IPI (Civil) 60.00 is relevant to the determination of negligence by the parties. ISP 60.00 provides that if a party violates a statute, then the trier can consider that statutory violation, “in pertinent part, “together with all the other facts and circumstances in evidence in determining whether and to what extent, if any, [a party] … [was] … negligent before and at … the time of the occurrence.” Thus, if Decedent violated the Illinois Vehicle Code, that fact can be considered in the determination of whether Decedent was negligent.

There is strong public policy in Illinois against operating a vehicle above these limits, whether intoxicated or not. See 625 ILCS 5/11-501(c)(1)(making a violation, as here, of 5/11-501(a)(1), a Class A Misdemeanor). Respondent appears to argue that since Decedent was statutorily prohibited from driving with a BAC of 0.094 and a THC level was 8.6 ng/ml, her decision to drive makes her more than 50% the cause of the accident. Respondent’s Brief, p. 12. Claimants seem to suggest that because their The Court notes that the parties failed to cite the original Petraski opinion, wherein the First District held that the admission of BAC levels was relevant to the issue of contributory negligence. Petraski v. Thedos, 382 Ill.App.3d 22, 27-28, 887 N.E.2d 24, 30-31 (1st Dis. 2008). The Court agrees.

Though the Court declines to conclude, as a matter of law, that Decedent was driving under the influence, there is certainly evidence in the record from which a trier of fact could conclude that she was experiencing the effects of alcohol and cannabis, including: (i) Mr. Cook saw Trooper Denning’s vehicle and pulled over; this undermines Claimant’s expert that the reds and blues of Trooper Denning’s lights were not visible, (ii) Mr. Cook testified the Decedent was looking at him across the road; thus, Decedent may not have been looking to her left before making the turn or was not careful enough in looking to her left; (iii) the crash occurred in the middle turn lane after Decedent traversed two lanes of traffic; she did not stop her vehicle, despite there being an unobstructed view of Denning’s vehicle for over 1000 feet (over 5 seconds) after he excited the dip before the intersection; and (iv) the testimony of Claimant’s toxicology expert that Decedent would have been experiencing some effects from alcohol and cannabis, which might have included a lack of inhibition, extra confidence, being in a relaxed state, short term memory processing, and effects on the thought and decision-making process. Again, despite his evidence, the Court does not conclude that Decedent was contributory negligent due to her alleged intoxication.

[*205] experts testified that Decedent’s driving was consistent with that of what an attentive driver would have done and that it cannot be proven that Decedent was intoxicated or under the influence, she could not have been contributorily negligent. The Court disagrees with both positions taken by the parties.

Claimants argue that it is reasonably foreseeable that Wilson would have misjudged (she would have perceived 17 seconds versus the actual 5.5 seconds) how long it would have taken Denning to reach the intersection after he crested the hill. As such, Decedent did not likely perceive Denning as a hazard. Claimants do not take a position as to whether Decedent failed to see Denning at all or whether she saw him but did not perceive him as a hazard and went ahead and completed her turn. In fairness, given the tragic death of Ms. Wilson, this would be impossible for Claimants to know. Unfortunately, the only eyewitness, Eric Cook, is not very helpful on this issue.

Cook testified that Wilson started her left turn when Denning was in the valley and not visible. Yet, Cook testified (he had his windows down) that he was able to both see Denning’s lights (which appeared greenish in color, not red and blue) and hear Denning (an engine roar) before Denning even entered the dip. Even though Cook was traveling in the opposite direction and had at least three, and possibly four, lanes separating his vehicle and Denning’s (Cook says Denning was driving in the right northbound lane; Denning and reconstructionist say he was driving in the left lane), Cook pulled his vehicle over immediately to the side of the road. There would have been no reason for Cook to do this, unless Cook either recognized Denning’s vehicle as an emergency vehicle or hazard of some sort. It should be noted that when Cook pulled his vehicle over, he had no stop sign or other traffic control device requiring him to stop. The position of Cook’s vehicle is depicted in Claimant’s Exhibit 19b, as well as Dinakar Deposition, CX 29a, Exhibit 10.

The undisputed evidence also establishes that after Denning exited the dip of the valley, there were 982 feet or over 5 seconds until he reached the intersection. There is no evidence that Wilson ever stopped her turn after crossing onto Oakland Avenue.

In fact, Cook testified that Wilson, if anything, seemed to accelerate her vehicle just prior to the collision. It is unknown whether Decedent accelerated normally or whether she accelerated quickly because she saw Denning’s vehicle and was attempting to avoid it. If Cook is right that Wilson started her turn while Denning was not visible, which seems unlikely or else she should have completed the turn in 5.5 seconds, she would have had more than 5.5 seconds or more than 982 feet between her and Denning. It is also unlikely, based on the positioning of Cook’s stopped vehicle north of the intersection of Oakland and Harrison (see CX 29a, Ex. 10), it being dark, and the speed of Denning’s vehicle (over 100 MPH) that he could have been watching both Denning and Claimant and not be able to accurately correlate Denning’s vehicle position with Decedent’s when she began her turn. In fact, Claimants’ expert’s photo from Cook’s position (CX 29a, Ex. 10), one cannot see into the vehicles at the stop sign.

Consequently, the Court does not place any weight on this aspect of Cook’s testimony.

Claimants also strenuously argue that before Decedent started her left turn, she only had between 0.5 and 1.7 seconds to see Denning. Claimants also maintain that it takes 1.5 seconds for an average driver under normal circumstances to perceive a [*206] hazard, such as Denning’s vehicle. If Wilson started her turn at the 0.5 second mark, Claimants argue she would not have enough time to perceive Denning as a hazard, and if she started at the 1.7 second mark, she barley would have had enough time perceive Denning as a hazard. Master Seargent Coady testified that it is impossible to know how much time it actually would have taken Wilson to perceive Denning as a threat as 1.5 seconds is considered the average under normal conditions.

Neither party addresses in any detail what happened in the seconds after Wilson started her left turn. One thing is clear to the Court, Denning had the right of way as he was traveling northbound on a highway with no stop signs or traffic signals. Wilson, in seeking to turn left, had a duty to yield to oncoming traffic. As established, Denning also had a duty to drive with the due regard, which he did not. Given Denning’s speed, Wilson likely had a tough time perceiving how fast Denning was going and may not have perceived him as a hazard. As a result, she may have thought she had more time that she actually did to execute her left-hand turn with a vehicle approaching.

It is undisputed that Wilson had between 0.5 and 1.7 seconds to visualize Denning’s vehicle after it reached the top of the hill after exiting the valley before she started her left-hand turn. Claimants’ reconstruction expert testified that Wilson should have been able to see Denning’s lights for 6.6 seconds before the collision. The collision occurred approximately 5.5 seconds after Denning exited the valley. Denning has his flashing lights on, which Cook saw. The court finds credible Trooper Denning’s testimony that he engaged his siren in bursts, though not continuously as required by ISP policy. However, it is unclear whether Wilson heard those bursts. Irrespective of the bursts, Denning’s engine was roaring loudly enough that Cook was able to hear it clearly before Denning even entered the valley. Cook did have his windows down. No evidence was offered whether Wilson had her windows down or had music on which might have prevented her from hearing the roaring engine. No explanation is offered by the parties as to why the Decedent could not hear the roaring engine.

It was a clear night, and there were no other vehicles on the road between Denning and Wilson. The point of impact occurred in the turn (middle lane) of the 5- lane road. After beginning her turn from the side of the road, Wilson had to cross the two northbound lanes and then the center turn lane in order to enter the two southbound lanes. The Court concludes that Trooper Denning, prior to the collision, was driving in the passing (left) northbound lane, a conclusion supported by the experts as well. Therefore, Denning was not driving in the lane closest to Wilson (the right northbound lane) before she began her left turn. The Court further concludes, based on both reconstruction experts and Trooper Denning, that Denning made an evasive maneuver by moving his car to the left toward the center turn lane in order to avoid the collision.

If the collision occurred 5.5 seconds after Denning exited the valley, then Wilson had at lease 5.5 seconds to perceive Denning’s vehicle in full view before the collision.

She should have been able to see at least the lights of Denning’s vehicle for as much as 6.6 seconds, according to her own reconstruction expert. It is possible that she had more time than that if Wilson, like Cook, saw Denning before he entered the valley.

However, there is no evidence in that regard. It is unknown whether or when Decedent saw Denning’s vehicle.

[*207] Nevertheless, the Court concludes that a reasonably prudent driver in Wilson’s position should have seen Trooper Denning’s full vehicle with emergency lights for at least 5.5 seconds or, stated another way, while Denning was almost 1000 feet away (over three football fields).

The only eyewitness to the incident, Eric Cook - who was at a slightly different vantage point than Wilson - saw Denning’s vehicle, could hear his engine roar, and saw Denning’s emergency lights before Denning ever entered the valley. Based on this, Cook immediately pulled his vehicle over, even though he had no duty to stop as there were no traffic signals requiring him to do so. Cook, therefore, perceived Denning’s vehicle as a hazard or emergency vehicle, even if he could not make out the red and blue lights specifically. Thus, it clearly was not impossible for another vehicle in the same vicinity of Decedent to perceive Denning’s vehicle.

As set forth, the evidence is that Decedent had between 0.5 to 1.7 seconds to perceive Denning’s vehicle before she began her turn. However, this is not the only relevant period of time. It is highly relevant how much time Decedent has to see Denning’s vehicle after she began her left turn into the intersection. To calculate how much time Decedent had to see Denning’s vehicle after she began her turn, we must first determine how far away Denning was from Decedent’s vehicle. The expert testimony was that it was 5.5 seconds from the time after Denning’s vehicle crested the hill (after exiting the valley) until impact. If that is true, the range of time that Decedent had to see Denning’s vehicle would be the difference between the amount of time that elapsed from the crest of the hill to impact minus the amount of time Decedent had to view Denning’s vehicle while she was stopped. At the low end, Decedent had at least 3.8 seconds to see Denning’s vehicle after she began her turn.

This is calculated by taking the time from hill crest to impact (5.5 seconds) and subtracting the maximum amount of time she had to perceive Denning’s vehicle while stopped at the intersection (1.7 seconds). At the high end, Decedent had at least 5.0 seconds to see Denning’s vehicle after she began her turn. This is calculated by taking the time from hill crest to impact (5.5 seconds) and subtracting the minimum amount of time she had to perceive Denning’s vehicle while stopped at the intersection (0.5 seconds). Thus, Decedent had between 3.8 and 5.0 seconds to see Denning’s vehicle after she began her turn and to take evasive measures.

Further, the evidence from the experts was that it takes an average of 1.5 seconds to perceive a threat. We know that Decedent had at least 5.5 seconds to perceive Denning because that is how long it took for him to get from the crest of the hill to the point where the vehicles collided. Consequently, there was a sufficient time for Wilson to perceive Denning as a threat before the collision because she should have been able to see him for at least 5.5 seconds. The accident occurred in the middle turn lane.

There is no explanation given as to why Wilson did not stop her turn while crossing the right northbound lane of Oakland (which Denning was not driving in) before the collision. Denning would have been in plain view as she entered the right northbound lane of Oakland Avenue. As the collision ultimately occurred fully in the turn lane (middle lane), Wilson also could have attempted to stop as she was entering the northbound left lane of Oakland, especially when Denning was maneuvering to his left, toward the southbound lanes, to avoid Wilson’s vehicle.

[*208] The parties also do not discuss Wilson’s conduct in any detail before she began her turn. Cook states that he saw Wilson look both ways before she began her turn and actually make eye contact with him. Cook testified as follows: Q. When she went into the intersection, did she, did she look towards your vehicle that you saw?

A. Yes, because I was sitting right here just sitting there. So my guess was she was looking at me like is this guy going or is he not going, you know. She sat there and waited to see what I was doing, and I was not going anywhere, then she proceeded.

Cook Evidence Dep., EX. 23a, p. 10-11.

At this time, Cook had stopped immediately because of the hazard he recognized in Denning’s approaching vehicle. Cook never states where he pulled over, e.g., in the right-hand southbound lane or on the side of the road. Regardless, this was highly unusual situation as it appears that Cook believed Wilson was trying to determine whether Cook was going to continue proceeding straight on Oakland before she began her turn. This should have alerted a reasonably prudent driver in Wilson’s position that extra caution should be used before commencing a left turn in the direction of Cook’s stopped vehicle. See Claimants’ Exhibit 19b, showing the position of the vehicles.

A reasonably prudent driver would have understood that due to the stoppage of Cook’s vehicle (which was facing the same direction in which Wilson was intending to turn) that there was something unusual going on either near Oakland/Harrison intersection or further on down south on Oakland Avenue. Cook testified that prior to beginning her turn, Wilson was looking at him. It is not clear the amount of attention, if any, Wilson devoted to the approaching traffic (such as Denning’s vehicle) to her left, and Claimants’ own expert’s picture (CX 29a, Exhibit 10) demonstrates that it would have been difficult, at best, for Cook to observe Wilson looking away from him, or to Wilson’s left.

Based on all the evidence above, the Court concludes that Wilson, despite the reckless conduct of Denning, had sufficient time to perceive Denning (as much as 6.6 seconds to see his lights and 5.5 seconds to see his vehicle after exiting the valley) as a threat and should have exercised extreme caution before proceeding with her left turn, in light of Denning’s flashing lights and Cook’s stopped vehicle on Wilson’s right. Further, a reasonable driver in Wilson’s position should have an evasive maneuver - by either stopping or slowing down - before she entered both the right northbound lane of Oakland Avenue to avoid Denning’s vehicle, to which she had a duty to yield, irrespective of his excessive speed and whether his siren was running continuously. Similarly, a reasonably prudent driver in Wilson’s position also would have stopped or slowed down upon breaking the plane of the left northbound lane. The Court concludes Wilson had time to do so, but for unexplained reasons did not.

The Court also concludes that Wilson had time to perceive Denning as a threat (perhaps as much as 1.7 seconds) before she began her turn. Based on the calculations above, Decedent also had at least 3.8 seconds - and maybe as much as 5.0 seconds - to see Denning after she began her turn. There is no evidence that Wilson attempted any [*209] evasive maneuvers after she began her turn. In fact, the evidence is that she accelerated just before the impact. This suggests that she did not see Denning until right before impact. Regardless, she should have seen him well before impact as there was nothing obstructing her view in the 5.5 seconds after Denning crested the hill which was over three football fields away from Wilson. While Denning was driving too fast and should have had his siren on continuously, this was not a situation where Wilson was executing a blind turn. To the contrary, there was nothing - in terms of weather or obstacles such as vehicles - obstructing her view between the top of the valley on Oakland to her south and its intersection with Harrison. Had Wilson been driving more carefully, the collision also would not have occurred.

The court concludes, therefore, that Decedent was contributorily negligent.

Before affixing a percentage to Claimant’s contributory negligence, the Court will address the topic of Decedent’s BAC and THC levels. While it’s true that - due to no witnesses being presented who witnessed Wilson drinking/using THC prior to entering her vehicle or persons witnessing Wilson driving her vehicle erratically - there is no evidence that Decedent was intoxicated, it is undisputed that she was driving her vehicle in violation of the Illinois Vehicle Code. Wilson’s BAC and THC levels both exceeded the statutory limit. Neither party directly addresses the relevance of Wilson’s violations of these statutes. Claimants focus exclusively on their experts who say there is no evidence that Wilson was impaired and that she drove consistently with how a non-impaired driver would have driven.

Decedent was indisputably in violation of the Illinois Vehicle Code as she had no right to be driving a vehicle on the night in question at those BAC levels. As stated above, violation of an Illinois statute is relevant to the issue of negligence. IPI (Civil) 60.00. In this case, Wilson was in violation of 625 ILCS 5/11-501(a(1)(a person shall not drive or be in physical control of a vehicle who has a THC level as defined in Section 11-501.2); and 625 ILCS 5/11-501.2(a)(6)(“Tetrahydrocannabinol concentration means either 5 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of whole blood”).

Therefore, the Court concludes that Wilson violated these statutes. In addition, Decedent also arguably could have been charged, had she survived, for aggravated DUI for causing great bodily harm to Trooper Denning. See 625 ILCS 5/11-501(d)(1)(c) (the person in committing a violation of subsection (a) was involved in a motor vehicle accident that resulted in great bodily harm or permanent disability or disfigurement to another, when the violation was a proximate cause of the injuries). Aggravated DUI is a class 4 Felony. 625 ILCS 5/11-501(d)(2)(A). While Decedent unquestionably appears to have been in violation of subsection (a) in Section 5/11-501, the Court declines to determine whether Decedent was guilty of aggravated DUI as it is not outcome determinative to her contributory negligence.

Thus, Wilson’s violation of the two provisions for blood alcohol and THC concentrations establishes a prima facie case of negligence, subject to being rebutted with evidence that Decedent acted reasonably. The issue of her impairment is not relevant to whether she violated these statutes because they only pertain to BAC levels.

No evidence has been, or logically could be, presented that it was reasonable to operate a motor vehicle with BAC levels higher than the statutory limits for both alcohol and THC, irrespective of how carefully Wilson was supposedly driving. Accordingly, Decedent’s [*210] decision to operate her vehicle with these BAC levels was negligent, irrespective of whether she was impaired or not. To reiterate, the Court expresses no opinion as to whether Wilson was, in fact, impaired.

One thing is clear. Wilson had no right whatsoever to be driving that night. It was illegal to do so, irrespective of whether she allegedly behaved as a non-impaired driver would have behaved. Had Wilson not made the decision to drive in violation of Illinois law, the accident would not have occurred. As such, her violation of the Vehicle Code, by driving with illegal BAC levels, adds to the level of her contributory negligence.

Having found both parties negligent, the monetary aspect of this case necessarily depends on the percentage of Ms. Wilson’s negligence. If that percentage is more than 50%, Claimant’s are barred from recovery.

While Decedent had time to perceive the danger and was violating State law by operating the motor vehicle while impaired, Trooper Denning’s decision to drive so fast was plainly wrong and criminally reckless (by his own admission). Despite the importance of Trooper Denning’s call to respond to a fleeing felon, his speed was excessive. It was so excessive that any driver would have had difficulty in perceiving him as a threat, especially without a constant audible warning, such as a siren. While a close call, the Court concludes that, given the reckless conduct of Trooper Denning, the Court does not believe that the evidence justifies a conclusion that Ms. Wilson was more than 50% negligent.

Based upon these factors the Court concludes that Respondent was 55% negligent, and Decedent was 45% negligent.

J. Damages

Decedent leaves behind two minor children, with whom she was very close, as Decedent was with her parents and entire family. It was undisputed that Decedent was a good mother, daughter, sister. Due to her premature death, it has been a tragic loss emotionally and financially for the family.

1. Economic Damages

As a result of her injuries sustained in the motor vehicle collision, Decedent incurred $25,380.45 in related medical expenses. CX 16. Respondent presented no evidence in opposition. The cost of the funeral was $13,069.35, and the cost of the headstone was $3,646.40, for a total of $16,715.75. CX 17-18. There is no question these expenses were incurred by Wilson’s Estate as a result of the motor vehicle collision.

Claimant’s expert economist, Dr. Edward Sattler, calculated the total future economic losses to Wilson’s estate to be $575,197.00. CX 31, p. 25. Dr. Sattler provided evidence of two categories of losses: future lost wages totaling $255,282.00 and lost future household contributions totaling $314,915.00. Dr. Sattler’s’ calculations for future lost wages were based on an employee who would earn the minimum wage, or close to it. Respondent has failed to allege how Dr. Sattler’s methodology is flawed in any specific way.

[*211] Similarly, his calculations regarding future lost household contributions totaling $319,915.00 were essentially unchallenged. While Respondent argues there are no cases in which the Court of Claims has recognized this type of damages, Illinois Pattern Jury Instruction 31.04 allows for the award pecuniary losses in a wrongful death case which “may include loss of money, benefits, goods, services, [and] society [and sexual relations]. I11. Pattern Jury Instr.- Civ. 31.04. It further provides, “[i]n determining pecuniary loss, you may consider what the evidence shows concerning the following: 1. What (money,) (benefits,) (goods,) (and) (services) the decedent was likely to have contributed in the future…” Id. The Court concludes that loss of services is compensable.

Respondent argues that Claimants did not plead damages for funeral expenses or medical expenses. While true, Respondent did not make this objection at the hearing.

Therefore, it is waived.

In short, Respondent did not cross introduce any evidence or testimony to dispute Dr. Sattler’s credentials, methodology, calculations or conclusions. There is no dispute whatsoever as to Dr. Sattler’s calculation of future economic losses. Based on the above, Wilson’s estate has incurred economic losses totaling $617,293.20 as a result of the motor vehicle collision. Claimants concede that Respondent is arguably entitled to a $5,000.00 set-off (see 705 ILCS 505/26) for the amount paid by Trooper Denning as a part of his criminal restitution. See transcript, p. 128 and Respondent Brief p. 22-23.

The Court awards $612,293.20 in economic damages, broken down as follows: $25,380.45 medical expenses, funeral and headstone cost of $11,715.75 ($16,715.75- $5,000.00 set-off), future lost wages totaling $255,282.00, and future lost household contributions totaling $319,915.00. 2. Pain and Suffering In Count II of the Complaint, Claimants assert a Survivorship claim for Wilson’s conscious pain and suffering prior to her death on May 8, 2016, as a result of the motor vehicle collision. The collision occurred at approximately 11:00 p.m. on May 7, 2016. The medical records entered into evidence establish that Wilson arrived at Decatur Memorial Hospital Emergency Department at approximately 11:59 p.m., and that after extensive CPR and supportive care, Wilson passed away at approximately 1:07 a.m. CX 3. Respondent argues Claimants presented no evidence that Decedent was conscious and suffered pain after the collision. However, the evidence is undisputed that Claimant lived for more than two hours after the collision, which is supported by her medical records.

The Court concludes that Wilson would have experienced extreme pain and suffering at the moment of impact and through her death approximately two hours later.

The Court awards $100,000.00 for Wilson’s pain and suffering. 3. Grief, Sorrow, and Loss of Society [*212] The Illinois Wrongful Death Act creates a cause of action whenever the death of a person is caused by the negligent actions of another. 740 ILCS 180/1. In such actions, the amount recovered shall be for the exclusive benefit of the surviving spouse or next of kin of the deceased person. 740 ILCS 180/2. The next of kin here are Wilson’s surviving daughters, Ella Stolz and Addison Crowder. In a wrongful death action, damages may be awarded for the pecuniary injuries resulting from such death, including damages for grief, sorrow, and mental suffering. 740 ILCS 180/2. The purpose of the Wrongful Death Act is to compensate the surviving spouse and next of kin for the pecuniary losses sustained due to the decedent’s death. Elliot v. Willis, Ill. 2d 530, 540 (1982). In wrongful death actions next of kin may recover damages for loss of society and companionship. Elliot, 92 Ill. 2d. at 541. Where the next of kin is a minor child, “a presumption of pecuniary loss obtains from the relationship, alone, sufficient to sustain a verdict and judgment awarding substantial and judgment awarding substantial damages.” Hall v. Gillins, 13 Ill. 2d 26, 31, 147 N.E.2d 352, 355 (1958). “The compensable pecuniary injury included within the concept of lost society is the future companionship, guidance, love, advice, affection and comfort that would have been exchanged … but for the defendant’s negligence. Simmons v. Univ. of Chicago Hosps. & Clinics, 247 Ill. App.3d 177, 182-83 (1994).

Wilson’s minor daughters, Ella Stolz and Addison Crowder, each testified as to their grief, sorrow and mental suffering as a result of their mother’s passing. TR, p. 36- 48. In addition to their testimony, Illinois law permits a presumption of substantial pecuniary loss, including for grief, sorrow, mental suffering and loss of society, by virtue of their relationship to their mother. At the time of her death, Wilson was twenty-six years old and would have been expected to live for a further fifty-six years.

CX 35. Moreover, Wilson’s parents, Katherine and Leo Wilson, and her sister, Megan Wilson, established that the Wilsons were a very close and supportive family and the Decedent was a loving and attentive mother to her daughters. They have suffered ongoing grief.

Respondent fails to address or dispute the testimony of the Wilson family, Ella Stolz’s teacher, Krystina Pettitt, and Ella’s counselor, TyKyna Cole, regarding the grief, sorrow, mental suffering and loss of society of Ella Stolz and Addison Crowder as a result of the death of their mother.

The Court concludes that the Decedent’s daughters have sustained immense grief, sorrow, mental suffering and loss of society as a result of their mother’s passing and that they will continue to suffer these damages throughout their lives. The Court awards a non-economic damages award of $2,000,000.00 for each minor child.

V. CONCLUSION

To summarize, the Court sets the following damages to Claimants: (i) $612,293.20 for economic damages; (ii) $100,000 for Decedent’s pain and suffering; and (iii) $2,000,000.00 for the grief, sorrow, mental suffering and loss of society experienced by Decedent’s minor daughter, Ella Stolz, and (iv) $2,000,000.00 for the [*213] grief, sorrow, mental suffering and loss of society experienced by Decedent’s minor daughter, Addison Crowder. The total damages amount to $4,712,293.20.

However, the total damages must be reduced by 45%. This yields an award of $2,591,761.26, broken down as follows: (i) Economic damages: $336,761.26 ($612,293.20 x .55) (ii) Decedent’s pain and suffering: $55,000 ($100,000 x .55) (iii) $1,100,000 ($2,000,000 x .55) for grief, sorrow, mental suffering and loss of society experienced by Decedent’s minor daughter, Ella Stolz; and (iv) $1,100,000 ($2,000,000 x .55) for the grief sorrow, mental suffering and loss of society experienced by Decedent’s minor daughter, Addison Crowder.

IT IS HEREBY ORDERED.