MICHAEL KLING v. THE STATE OF ILLINOIS (2001)

OPINION

Claimant, MICHAEL KLING, seeks judgment against Respondent, STATE OF ILLINOIS, for injuries he suffered in a motorcycle accident which occurred on July 17, 1991 on U.S. 24 in Fulton County, Illinois. Claimant alleges his injuries were the result of negligence on the part of Respondent's Department of Transportation (IDOT).

The portion of U.S. 24 that is relevant to this claim runs between Rushville in Schuyler County, Illinois and Astoria in Fulton County, Illinois. Though this portion of highway actually runs from the southwest to the northeast it is generally described as running east/west and in this report it shall be described as running east/west. Approximately halfway between Rushville and Astoria the Ray Blacktop runs north from U.S. 24. At the time of the accident Claimant was employed at L & N Industries in Ray, Illinois which is about 9 mile north of U.S. 24 on the Ray Blacktop. Between the Ray Blacktop and Astoria, another road known as the Vermont Blacktop runs north from U.S. 24. Approximately eight tenths of a mile west of the Vermont Blacktop on the north side of U.S. 24 is the residence of Scott Dean. Approximately one-half mile west of the Vermont Blacktop on the north side of U.S. 24 is the residence of Steve Dean. Claimant's Exhibit 30 illustrates the portion of U.S. 24 that is pertinent to this claim.

Claimant testified that on July 17, 1991 he rode his motorcycle on U.S. 24 from Astoria to Rushville for an early afternoon appointment with Charles Smith, D.C. who was treating Claimant for a lower back condition. At that time Claimant was residing with his parents. After the appointment, Claimant began the return trip on U.S. 24 to Astoria where he intended to put on his steel-toed boots prior to going to work at L & N Industries. Claimant testified that right before he reached Scott Dean's house he was traveling around fifty miles per hour. As he passed Scott Dean's house, his motorcycle struck a pothole in front of Scott Dean's house. That pothole was in the right portion of the eastbound lane of U.S. 24. It is shown in Claimant's Exhibits 36 through 39. According to Claimant, the wheel of his motorcycle went down at least two and one-half or three inches into the pothole which caused Claimant to lose control of the motorcycle. Claimant recalls the wheel of the motorcycle going off to the right while he fell off the motorcycle to the left and rolled a couple of times. Claimant has no further recollection of events until he was in Culbertson Hospital in Rushville, Illinois.

On cross-examination, Claimant testified he had driven on the section of U.S. 24 where the accident occurred on a daily basis and that he knew the condition of the road was bad prior to July 17, 1991. Claimant maintained, however, that he was not previously aware of the exact pothole that he contends he hit. Claimant also testified he remembered more about the accident on the day of the hearing than immediately after the accident due to nightmares he had been having which caused him to recall more of the incident.

Claimant's brother, Chris Kling, testified that on the afternoon of July 17, 1991 he was waiting in Astoria for Claimant to arrive home so he could ride with him to work at L & N Industries. When Claimant did not arrive, Claimant's father agreed to drive Chris to work in his truck. As Chris and his father proceeded westbound on U.S. 24, they came upon Claimant stumbling around on the north side of the road right in front of Scott Dean's house. Claimant's motorcycle was located in the ditch on the north side of U.S. 24. After Chris and his father put Claimant in the truck, Chris pushed the motorcycle from the ditch on the west side onto the driveway of Scott Dean's house. Chris and his father then took Claimant to Culbertson Hospital for treatment.

Scott Dean testified he did not remember specific details as far as exactly when the accident happened and he was not sure where he was when the accident occurred. Scott Dean also testified that he never made complaints to respondent or anyone else about the conditions of U.S. 24. When asked whether he ever noticed IDOT making repairs on U.S. 24, Scott Dean gave the following testimony:

A. Yes, In fact, we used to joke about it every once in awhile because they were always out throwing cold patch in the holes you know, so, yeah, they were periodically out there doing that.

Q. Can you elaborate on periodically, how often?

A. Oh, you know, I don't know. It seemed like they were out there every little bit in the spring. They were always - because there would gradually be more holes show up or cracks show up, and they were out there throwing that cold patch in the holes.

David H. Davis, an employee of Scott Dean, was working at Scott Dean's farm on July 17, 1991. He testified he did not observe the motorcycle accident but did notice debris on the north side of U.S. 24 and saw Claimant's motorcycle sitting by Scott Dean's mailbox. Steve Dean testified that he saw Claimant's motorcycle sitting in his brother's driveway later in the day on July 17, 1991.

Bill Yoggerst, an Inspector Supervisor since 1991 for the Street Department of the City of Springfield Department of Public Works, was presented as an opinion witness for Claimant. His duties include carrying out inspection work regarding roads and potholes. After examining Claimant's Exhibits 36 through 39, the photographs of the pothole Claimant alleges caused the accident, Mr. Yoggerst testified that the pothole was in need of patching and repair and had been present for about three months prior to the date of the photographs which were taken in August of 1991. Mr. Yoggerst based his opinion upon the fact that gravel had been eaten away, change of color and grass or weeds growing out of the pothole. Mr. Yoggerst also testified that the pothole had never been patched or repaired. Mr. Yoggerst further testified that a responsible party would find out about potholes through inspection or citizen complaints and that generally the time frame when the potholes should be repaired is within a couple of weeks of the existence of the pothole.

On cross-examination, Mr. Yoggerst testified he was not aware of IDOT's policies concerning inspection of roadways in July of 1991. He further testified that if a pothole similar to the one Claimant alleges was struck had existed in Springfield for a period of two months he would not have been doing his job. Mr. Yoggerst acknowledged that road conditions similar to what is shown in Claimant's Exhibits 36 through 44, photographs of U.S. 24, had existed in Springfield for more than two months.

A Joint Stipulation of the Parties was entered into to present what would have been the testimony of IDOT employees David Allen Roberts and Russ Mitello if they had been called to testify. The stipulation reveals as follows: Prior to Claimant's accident, U.S. 24 in the area where the accident occurred had last been resurfaced in approximately 1971 when an additional two feet was added to the outside of the existing travel lanes. In late spring and throughout the summer of 1990, a Condition Road Survey (CRS) was performed on U.S. 24 in Fulton County, Illinois. IDOT compiles and maintains CRS maps on a periodic basis for roadways under its jurisdiction. The road rating for the area of U.S. 24 for the accident area was 4.3. A road rating from 0 to 4.5 is deemed poor. The road rating was determined by a survey panel of three to four people who are experienced technicians or engineers. The survey panel also rated the road ridability for the section of U.S. 24 at issue by driving over the road surface. The rating given, (2), indicates an uncomfortable ride, not over the entire section, approximately 70% giving a very rough ride. The parties agreed in the stipulation that the condition of the roadway as depicted in the top two photographs of Claimant's Exhibit 59 is consistent with a 4.3 condition rating. Those photographs are also Claimant's Exhibits 31 and 36.

The stipulation also reveals that IDOT established the need for improvement for the section of U.S. 24 in question and a project for improvement was included in the multiyear improvement program in fiscal years 1990-94. This five year plan was released by the Governor in April of 1989. However, the contract for maintenance for the section of U.S. 24 in question was not awarded until 1993 and the project was not completed until 1994.

The applicable law pertaining to claims in which a defect in a highway has been alleged to have caused an accident was set forth by this Court in Dixon v. State (1998), 51 Ill.Ct.Cl. 10, where the Court stated as 51 Ill.Ct.Cl. 14-15:

The fact that a defect on a highway may have caused the accident is not determination of negligent conduct on the part of the Respondent. In order for a Claimant to recover for injuries suffered as a result of an accident on a State highway due to a pothole, the Claimant must prove, by a preponderance of the evidence, that the State was negligent, that the State's negligence was the proximate cause of the injuries, that a dangerous condition or defect existed, and that the State had actual or constructive notice of the dangerous condition or defect. Scroggins v. State (1991), 43 Ill.Ct.Cl. 225. The Claimant bears the burden of proving by a preponderance of the evidence that the State was negligent in its duty to maintain the roadway in question and that the State's negligence proximately caused Claimant's injuries. Skinner v. State (1975), 31 Ill.Ct.Cl. 45. The State has a duty to exercise reasonable care in maintaining its highway so that defective and dangerous conditions do not exist. Baren v. State (1974), 30 Ill.Ct.Cl. 162. However, the State is not an insurer of the safety of those persons who travel upon its highways. Trotter v. State (1993), 45 Ill. Ct.Cl. 165.

Claimant testified that the accident occurred when his motorcycle struck the pothole in the photographic exhibits. Respondent maintains that the dimensions of the pothole could not have caused Claimant to lose control of the motorcycle. However, from viewing Claimant's Exhibits 36 through 39, the photographs of the pothole, it appears that the pothole could have caused Claimant to lose control of the motorcycle. Without the benefit of any other eyewitness testimony presented, this Court must find that Claimant has proven by a preponderance of the evidence that the pothole identified in the photographic exhibits was the proximate cause of his accident.

Claimant must also prove that the existence of the pothole was the result of negligence on the part of Respondent in its duty to maintain the roadway in question. No evidence was presented to show that Respondent had actual notice of the existence of the pothole which caused the accident. Claimant must therefore prove that Respondent had constructive notice of the defect. This Court has determined that each case involving constructive notice must be decided on its own particular facts. Stills v. State (1989), 41 Ill.Ct.Cl. 60, 62. The two general methods for proving constructive notice of a defect are the length of time that the defect has existed and/or the defect being so obvious that constructive notice could be imputed by the nature of the defect itself. Alsobrook v. State (1995), 48 Ill.Ct.Cl. 205, 208. Having determined that the defect was substantial enough to have been the cause of Claimant's accident, it is necessary to determine whether the defect had existed for such a length of time and/or was so obvious that constructive notice should be imputed to Respondent.

Claimant's witness, Bill Yoggerst, testified that the pothole in Claimant's Exhibits 36 through 39, which Claimant testified caused his accident on July 17, 1991, had been in existence for about three months prior to the date the photographs were taken in August of 1991. From viewing Claimant's Exhibits 36 through 39, it is apparent that the pothole Claimant testified caused the accident not only existed for a significant period of time prior to Claimant's accident, but also would have been obvious to representatives of IDOT responsible for inspecting and maintaining the highway. Aside from the testimony of Scott Dean that IDOT employees were periodically out patching potholes, the only other evidence presented regarding the inspection and maintenance of the highway is set forth in the Joint Stipulation of the Parties. That document shows that while IDOT may not have been aware of the particular pothole that caused Claimant's accident, it was aware through its Condition Road Survey conducted in late spring and summer of 1990 that the condition of the area of highway at issue was considered poor and that ridability of the area of highway at issue was judged an uncomfortable ride, not over the entire section, approximately 70% giving a very rough ride. This indicates that even though IDOT had knowledge of the poor condition of the highway about a year prior to Claimant's accident, it failed to present any evidence regarding its inspection or maintenance of the highway from the time the Condition Road survey was conducted until Claimant's accident. Without evidence presented regarding IDOT's inspection and maintenance of the highway in the year prior to the accident it is impossible to determine whether IDOT's inspection and maintenance was reasonable. Therefore, it is the opinion of the Court that, under the facts of this particular case, constructive notice should be imputed to respondent and respondent is therefore liable for the injuries suffered by Claimant as the result of the accident.

It is also the opinion of the Court that Claimant's testimony reveals comparative negligence on his part. Claimant testified he had driven on the section of U.S. 24 where the accident occurred on a daily basis and knew the condition of the road was bad prior to the date of the accident Claimant's Exhibit 36 shows that the pothole struck by Claimant was toward the far right side of the eastbound lane of U.S. 24. Given Claimant's knowledge of the condition of the road, Claimant should have exercised more care in traveling the area of highway where the accident occurred. Had Claimant been more cautious, he may have been able to avoid the pothole he struck. Therefore, any aware to Claimant is reduced by forty percent (40%) due to Claimant's comparative negligence.

Following the accident, Claimant was taken by his father and brother to Culbertson Hospital in Rushville, Illinois where he received the initial treatment for his injuries. His immediately recognized injuries were numerous scrapes and abrasions on his chin, palms, right shoulder, right back, buttocks, right leg and right foot. These injuries are illustrated by Claimant's Exhibits 45 through 52. He was treated for those injuries by his family physician, Dr. Dohner.

On August 7, 1991, Claimant saw his chiropractor, Dr. Smith, for the first time following the accident. Dr. Smith testified that at that appointment Claimant complained of headaches as well as a problem with his left thumb, left elbow, right hand, right wrist and lower neck. Dr. Smith conducted an examination of Claimant and took x-rays of Claimant's spine and right wrist. From those x-rays Dr. Smith determined something looked suspicious in Claimant's right wrist so he referred Claimant to Dr. Zamboni at the Southern Illinois University School of Medicine Clinic (SIU Clinic). Claimant's records from the SIU Clinic are contained in Claimant's Exhibit 4.

Dr. Zamboni diagnosed a displaced scaphoid fracture of the right wrist that required Claimant to undergo surgery in which a screw was inserted to promote bone healing. Claimant also wore an electrical stimulator to promote healing and took hand therapy at the SIU Clinic. However, the wrist did not heal properly due to a nonunion of the broken bones. Other orthopedic surgeons Claimant has consulted have recommended removal of the screw and bone grating or fusion surgery. Claimant testified that while the other physicians he has consulted could not guarantee that his wrist would improve with surgery, they also had not warned him that the pain in his wrist would get worse with further surgery. The medical bills resulting from Claimant's injuries total $12,824.56.

Claimant testified he can feel where the screw was surgically implanted at the meeting of the base of his right wrist and thumb. He further testified that he has limitations of movement of his hand and experiences pain at the end of a work shift. Dr. Smith testified that within a reasonable degree of chiropractic certainty the right wrist condition of Claimant is a permanent condition resulting in continuous pain, lack of strength and lack of motion.

When Claimant's accident occurred on July 17, 1991, he was working at L & N Industries running a shear which required him to lift steel into a machine which would cut the steel into square pieces. As a result of the accident, Claimant was unable to return to work. The SIU Clinic records reveal that on July 17, 1992 Dr. Zamboni wrote a letter to the Department of Health and Human Services Social Security Administration which stated that, in Dr. Zamboni's opinion, Claimant had been unable to work since his accident on July 17, 1991 and would be unable to work for at least another six months. On February 17, 1993, Dr. Zamboni issued a return to work slip indicating Claimant could return to work for light duty with no lifting over five pounds with his right hand. On March 31, 1993, Dr. Zamboni issued a return to work slip indicating Claimant could return to work with no lifting greater than ten pounds. On July 24, 1993, Dr. Zamboni issued a return to work slip indicating Claimant could return to work without any restrictions. Claimant testified that after receiving the restricted return to work slips on February 17, 1993 and March 31, 1993 he attempted to return to work at L & N Industries but was informed they did not have any work of that nature. Claimant further testified that he went back to L & N Industries because he kept paying the company for his insurance and thought he was going to get his job back. When he received his unrestricted return to work slip, he again sought work at L & N Industries but was unsuccessful. On August 2, 1993, Claimant was successful at finding work at the Illinois Glove Factory.

Respondent maintains that Claimant failed to mitigate his damages by failing to search for other work after he received the restricted return to work slips from Dr. Zamboni. It is the Court's opinion that it would have been very difficult for Claimant to have found any work involving manual labor while being restricted to lifting less than five or ten pounds with his right hand. The record indicates that almost immediately after receiving his unrestricted return to work slip Claimant began working at the Illinois Glove Factory. This Court finds that Claimant did not fail to mitigate his damages.

Claimant's Exhibit 29, his 1991 Form 1040EZ, confirms a wage history of approximately $378.00 per week worked at L & N Industries. As a result of the accident, Claimant was out of work for approximately 106 weeks. Based on 1991 Form 1040EZ, Claimant lost wages amounting to $40,068.00 ($351.00/week x 106 weeks).

Based on the nature and extent of Claimant's injuries as well as wages lost as a result of those injuries, this Court finds that Claimant's damages total $80,000.00. This amount is reduced by forty percent (40%) due to Claimant's comparative negligence. Therefore, the Claimant is granted an award of $48,000.00.

MITCHELL, J.