CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE v. THE STATE OF ILLINOIS (2001)

OPINION

This case is before the Court on a Verified Complaint filed by Claimant Consolidated Freightways Corporation of Delaware (hereinafter referred to as CFC) against Respondent, State of Illinois for damage caused to a tractor, double trailer and cargo. Claimant seeks recovery pursuant to Section 8(d) of the Court of Claims Act based upon the alleged negligence of Respondent, 705 ILCS 505/8(d) 1998. Claimant seeks Three Hundred Seventy Seven Thousand Fifty-Six Dollars and Fifty-Six Cents ($377,056.56) for damages to its equipment and the cargo caused by the respondent.

THE FACTS

On April 26, 1996, an accident occurred in the northbound lanes of Interstate 90/94 (the Dan Ryan Expressway) involving a tractor and double trailer (hereinafter referred to collectively as the Truck) owned by CFC. At approximately 10:30 p.m., the Truck was involved in an accident with another vehicle and ended up resting on its side 125 feet south of 43rd Street in Chicago blocking several lanes of traffic. At this point of the Expressway, there are three express lanes, three local lanes and a lane leading from the local lanes into the express lanes. The local lanes and express lanes are separated by a permanent concrete barrier wall. The tractor rolled over the barrier and came to rest on the driver's side blocking all of the lanes in the express lanes.

The two trailers were still connected to the tractor lying on their side on the express lanes. Each trailer was shorter than normal trailers, 28 feet long. The first trailer weighed 16,786 pounds and the second was 14,452 pounds. The side walls of the trailers are made of aluminum with reinforced ribs.

The Emergency Traffic Patrol (hereinafter referred to as ETP) of the Department of Transportation (hereinafter referred to as IDOT) responded to the accident. An employee of IDOT, Vincent Serafini arrived at the scene and radioed back to his supervisor, Edward McKissack, (both are known as Minutemen) who traveled to the scene. Serafini noticed that part of the tractor was heavily damaged. The first trailer was open in the corner where merchandise came out. He saw guitar cases, big spools of string and big canvas bags. The roof of the second trailer was buckled.

When McKissack arrived at the accident there was traffic caught in the express lanes. He considered this to be a significant accident because all the express lanes were blocked. The two employees inspected the accident. McKissack believed the tractor was destroyed from going over the wall. The roof of the front trailer had been peeled off. The doors of the trailer had come open and some of the cargo had fallen out. The State Police were trying to divert the traffic by sending them in the wrong direction in the express lanes. Traffic in the local lanes were backed up.

McKissack and Serafini decided to drag the tractor while it was connected to the two trailers to a site near Chinatown. They made the decision based on the duration the lanes had been closed and because the integrity of the trailers had been compromised. McKissack hooked up a heavy duty ETP vehicle to the Truck and proceeded to drag it on its side 3.9 miles along the expressway. He exited at 22nd Street and stopped at Wentworth Street. He drove at approximately two to five miles per hour.

After the IDOT personnel towed the Truck to Chinatown they stated that they inspected the trailers and thought them to be in the same condition as when they were at the accident scene. They did not see any sparks or smoldering and looked in the trailer but did not see any damaged cargo. Subsequent to the IDOT personnel leaving the Chinatown location, approximately one half hour later, the fire department arrived to extinguish a fire which had engulfed one of the trailers. The fire destroyed the trailer and its cargo.

Ron Kinman, President of Kinman Towing & Recovery Company, testified that the Minutemen could have up righted the truck at the accident scene in 20 to 45 minutes using nylon straps or ropes and a tow truck. He has more than 35 years of experience in the towing and recovery business. The Truck was actually up righted in this fashion by Lang's Towing, a private company, at the Chinatown location. Had the truck been up righted, it could have been towed within 20 miles per hour of the speed limit.

Kinman stated that an alternative method could have been used to up right the truck at the accident scene. This method involves the Air Cushion Recovery System which utilizes low pressure air cushions that are placed underneath a truck and are slowing inflated. Kinman sold the System to the State in 1987 and provided two different training sessions. It would have taken approximately 30 minutes to up right each trailer using this method.

McKissack acknowledged that the tractor could have been up righted at the accident scene.He also stated that the second trailer had no major structural damage and none of its cargo had spilled out. According to Kinman, areas to be examined to determine whether a trailer can be up righted are the lower rail of the frame, the square area comprising the rear door frame, and the square area comprising the frame directly behind the tractor. All of these areas are made of steel. In examining photographs of the first trailer, Kinman noted that: the frame which formed the floor was intact; the side ribs were intact and still extended vertically from the frame, the box behind the tractor was intact; and the steel area forming the door was intact. The photographs were taken after the trailer had caught in fire.

Serafini agreed with Kinman that it is standard practice in the towing and recovery industry to up right and tow vehicles on their wheels whenever possible. Serafini stated that the decision to drag the Truck was made because the structural integrity of the first trailer was compromised at the accident scene. His decision was based in part on a concern that the cargo was not a solid load. Although both McKissack and Serafini stated that they knew how to use the Air Cushion Recovery System, they were concerned that it would push through the side of the trailers. Upon reviewing photographs of the first trailer Serafini acknowledged that the undercarriage, the front portion behind the tractor and the rear portion holding the rear doors were still intact. Sergeant Donley, a State Trooper that arrived at the accident scene, testified that cargo was not spread across the expressway.

CLAIMANT'S ARGUMENT

Claimant maintains that respondent should have up righted the truck and towed it to the location thereby sparing further damage to the truck and cargo. Friction from the dragging of the truck caused the fire to the first trailer. The heat that was generated caught the cargo on fire. Bruce Hartman, a Safety Supervisor for claimant, examined the Truck and took photographs. The photographs show the steel wheels had a large gash worn through it and had turned black. The steel lug nuts were worn down.

The parties stipulated that a total of Two Hundred Twenty Two Thousand Two Hundred Sixty One Dollars and Eighty Two Cents ($223,261.82) was destroyed and damaged as a result of the accident and fire.

Claimant asserts that most of the damage would have been caused by the dragging and fire because it uses methods of packing the freight to minimize damage. All of the cargo on the first trailer was a total loss. Cargo valued at One Thousand Four Hundred Forty Five Dollars and One Cent ($1,445.01) was the only freight damaged in the second trailer. The first trailer has a market value of Nine Thousand Five Hundred Dollars ($9,500) and was sold for Fifty Dollars ($50). The second trailer had a market value of Five Thousand Dollars ($5,000). McKissack stated that it was not damaged at the accident scene. After it was dragged each side panel and nearly every rib had to be replaced. The estimates for repair exceeded the value so claimant sold the trailer for Three Hundred Dollars ($300).

Claimant paid Lang's Towing Fourteen Thousand Seven Hundred Twenty Dollars ($14,720). The bill was calculated by the amount of time, thirteen hours, and the equipment used in up righting the Truck and towing to Lang's yard. Hartman stated that the average tow bill for an overturned tractor trailer was Six to Seven Thousand Dollars ($6-7,000). Had the Truck been up righted at the accident scene and not dragged, Hartman believed claimant would not have incurred Five Thousand Eight Hundred and Nine Dollars ($5,809) ($1950 for a trailer; $2,600 for two flat bed trucks; $500 for cleanup; and $489 for 3 extra men working 13 hours to clean up). The Lang's crew had to wait while the fire department put out three fires and for the debris to cool.

RESPONDENT'S ARGUMENT

IDOT made the decision not to up right the Truck because the State utilizes a recognized quick clearance policy. The objective is to minimize congestion costs. The decision to drag the Truck instead of up righting was made because of the Minutemen's concerns that the load might spill onto the roadway which would keep the express lanes blocked longer. The express lanes had already been blocked for thirty minutes and up righting would have taken another forty minutes. They were also concerned about the safety of motorist by secondary accidents.

Respondent asserts that its method of relocation did not cause any additional damage to the Truck or its cargo. When it left Chinatown Lang's crew was already there picking up debris.

THE LAW

In order for claimant to recover, it must prove by a preponderance of the evidence that respondent owed a duty of care to claimant, breached its duty, and the breach proximately cause the damage. Tolivar v. State (1994) 47 Ill. Ct. Cl. 55; Wodjdyla v. City of Park Ridge (1992) 148 Ill.2d 348; and Theilin v. State (1976), 31 Ill. Ct. Cl. 449.

Respondent notes that the Minutemen are authorized to remove disabled vehicles from the highways. Section 1302 (b) of the Illinois Vehicle Code authorized IDOT to move vehicles off the paved or main traveled part of the highway. 625 ILCS 5/1302 (b) (1994). Respondent acknowledges that the Minutemen have a duty of reasonable care in responding to an incident. Respondent cites Scott and Lawrence v. State (1998) 50 Ill. Ct. Cl. 116 in support of his position that Minutemen should be granted a great amount of discretion in responding to incidents which are a hazard to the motoring public. Respondent asserts that there is no evidence that its agents acted with a conscious disregard for claimants property.

Claimant relies on Kultgen v. State (1982), 35 Ill. Ct. Cl. 204. The Kultgen Court found the State liable for causing damage to a semi truck being towed from the highway by a State vehicle. The Court state stated that the law is well settled that where an individual's alleged negligence does nothing more than furnish a condition by which injury is made possible, and an injury is then caused by a subsequent act of a third person, the two acts are not connected, and the existence of the condition is not considered a proximate cause of the injury. 35 Ill. Ct. Cl. 204, 207. The Court reasoned that the respondent having taken charge of the removal of the vehicle was under a duty to take every precaution necessary to prevent any incidents. The Court held that respondent's negligence caused the damage to the vehicle. Id. at 208.

In the case at bar, respondent asserts that it took only 20 to 25 minutes to drag the Truck to Chinatown. However, traveling at 2 to 5 miles per hour it would appear to take 1 to 2 hours to travel this distance. Respondent asserts that it was concerned that cargo would spill out of it if attempted to upright the Truck, but the State's witness testified that debris or cargo came off while the Truck was being dragged.

A review of the photographs and the testimony of the witnesses leads to the obvious conclusion that the tractor, trailers and cargo were damaged in the accident. It is also apparent that the method of dragging the Truck caused additional damage to the tractor, trailers and cargo. The question is whether the IDOT personnel acted properly when they decided to relocate the Truck in such a manner. Claimant's expert opined that the Truck could have been up righted in a total of 60 minutes and then towed at approximately 10 to 15 minutes to the Chinatown site. This testimony has never been challenged by respondent. In fact, IDOT personnel also believed the towing in the manner testified to by Kinman would have been the best method. But while at the scene, they did not think the trailers were stable enough to up right. Their testimony on cross examination after reviewing the photographs of the trailers was not as definitive or convincing.

The Court finds that respondent did not use reasonable care in relocating claimant's tractor and trailers and more likely than not the method used by respondent's personnel caused the fire and additional damage to the Truck and its cargo. The method used by the Minutemen did not reduce the amount of time that traffic would have been congested. Traffic was impeded for 1 to 2 hours after they began dragging the Truck.

Kinman's testimony as to the two methods of up righting the trailers and claimant's evidence in relation to structural make up, and subsequent integrity, of the trailers is sufficient for this Court to find that claimant has met its burden of proof on the issue of liability.

The Court however is not convinced that all of the damages incurred by claimant to its equipment and cargo was caused by respondent's negligence. The only damage to the tractor pointed to by claimant because of the dragging is relatively minor in relation to the other damages as evidenced by the photographs. This conclusion is equally clear as it relates to the damage to the second trailer and the minimal damage to the cargo of that trailer. An award for damage to the second trailer and cargo is denied.

The Court recognizes that the assessment of damages can not always be made with precision in specifying certain damages arising from certain acts while other damages arise from other acts. Damages are not rendered uncertain because they are uncertain as to amount, as distinguished from those too uncertain to be recoverable because they are not the certain results of the wrong that has been committed. J.F. Incorporated v. State (1988), 41 Ill. Ct. Cl. 5.

It is undisputed that claimant lost some cargo out of the first trailer at the accident site. The exact amount in unknown. Due to the fire and the need to extinguish it, the first trailer and its cargo suffered additional damage. Unfortunately insufficient objective evidence, i.e. photographs, of its condition post-dragging but pre-fire exists.

The Court hereby awards claimant the total sum of One Hundred Seventy-Five Thousand Seven Hundred Eighty Dollars and Seventy Seven Cents ($175,780.77) for a) sixty percent (60%) of the value of the first trailer ($5,130); b) for seventy percent (70%) of the cargo in the first trailer ($170,650.77).

PATCHETT, J.