SUSAN PUGH v. THE STATE OF ILLINOIS (2001)

OPINION

This cause is before the Court on Claimant, Susan M. Pugh's Verified Complaint against Respondent, State of Illinois. The case, sounding in tort, was filed pursuant to Section 8(d) of the Court of Claims Act, 705 ILCS 505/8(d)(1998). Claimant alleges that Respondent was negligent when she incurred personal injuries as a result of a November 9, 1998, accident on an Interstate 80 exit ramp. A hearing was held on December 21, 2000, at which Claimant appeared as Susan Marie Weber-Pugh and testified to the one vehicle accident allegedly caused by a hole in the ramp.

The Facts

The parties stipulated that Claimant sustained injuries with medical bills totaling $37,603.64. The parties did not stipulate to lost wages allegedly in the amount of $14,988.80. At the time of the accident, Claimant was working forty hours a week at $11.71 per hour, as a relief rural carrier for the U.S. Postal Service; She used a right hand drive mail Jeep in the performance of her duties.

On November 9, 1998, Claimant testified that she was driving her vehicle West on Interstate 80, having just come from making deliveries on the East Side of Joliet. She exited on the single lane exit ramp to proceed North on Larkin Avenue. It was approximately 4:00 p.m. and the traffic was heavy. She noticed that the car in front of her suddenly swerved and within a second or two she hit something. Her vehicle rolled over and pinned her right arm underneath it. At the time of the accident, she was wearing her seatbelt and both doors were closed. The vehicle was moved off of her by several motorists who had stopped. Paramedics arrived and took her to St. Joseph's Hospital.

Claimant testified that she saw the pothole a second before she hit it, which caused her Jeep to rollover. Although she traveled the same route every Monday, she never noticed the pothole. She did notice that the exit ramp roadway was deteriorating with cracks and little bumps, but did not contact anyone in relation to these observations.

Claimant was kept overnight at the hospital for observation. She was bruised and swollen and had cuts from the broken window glass. She was diagnosed as having a torn lining in her labrum. She had surgery on her right shoulder to repair the damage. She participated in physical therapy before and after her surgery.

Dr. Joseph Thomas, an orthopedic surgeon, testified that he examined Claimant. On November 10, 1998, Claimant complained about injuries to her lower extremities, upper right extremity and her back. She complained of pain through both legs, left upper thigh, right side of head at the level of the temple, pain through her right hand, fingers, forearm, arm, left scapula and lower back. He prescribed Vicodin for her pain, told her to stay off work and return in two weeks. After her subsequent examination, Dr. Thomas noted a small chip fracture off the base of the middle phalanx of the PIP joint of the index finger, guarding for forward flexion of the right shoulder and tenderness through the medial aspect of the left knee. He prescribed therapy for her hand, arm, legs and left knee to decrease pain and increase motion.

A MRI was conducted on January 5, 1999, after Claimant complained of pain through her neck and right shoulder. Abnormality of the superior labrum with a possible tear in her right shoulder was found. A review of the MRI to her cervical spine showed some mild bulging at C6 and C7. A neurologist, Dr. Fagan, examined her and reported impressions that she was suffering from occipital neuralgia, pain through the back portion of the head related to the irritation of the small nerves about the neck, due to local trauma and continued cervical spasm.

Dr. Thomas examined Claimant every few weeks and he ultimately performed arthroscopic surgery on her right shoulder due to a torn labrum on April 26, 1999. Between the accident and her surgery Claimant was released for light duty at various times. She was apparently on pain medicine, which varied most of the time. During the surgery, Dr. Thomas trimmed torn tissue near her shoulder joint. Subsequently, she was sent for more physical therapy. Claimant continued to see Dr. Thomas regularly through September 2000, for pain and swelling with her right arm, shoulder and hand and pain in her left knee, low back and cervical spine. Dr. Thomas opined that her injuries were the result of the accident and the injuries were permanent.

Claimant was off of work from November 9, 1998, to February 13, 1999, and May to September 1999. She would have been paid $14,988.80 during the time she was off work.

Claimant stated that her right hand is not good and has tendentious all the way up her arm. She wears a brace on her arm every day and does not have full use of her right arm. Her left knee swells a lot and is a problem. Her neck is constantly sore. Her husband stated that she is in pain a lot and has trouble doing household chores.

Prior to the accident, she used to go boating, skiing and tubing, but she is unable to do these activities. They had to sell a wave runner because she could not do it. She can no longer perform her duties as a mail carrier because she has trouble lifting objects. She is currently working sixteen hours a week on a limited light duty at the post office.

Mr. Joseph Pugh, Claimant's husband, testified that he was called to the scene of the accident. He saw the Jeep upright, the doors were off and the window was blown out. Oil and gas were everywhere. They had purchased the Jeep a year earlier and he had totally rebuilt and renovated it. At the time of the accident, it was in perfect condition. He examined the Jeep after the accident, photographed it, and noted that both wheels on the right side were blown out with their rims dented. He thought it looked like she hit something. Claimant told her husband that she hit a pothole.

Mr. Pugh was busy attending to the Claimant, their children and the Jeep for a couple of days, but then decided to go to investigate the ramp. On November 12, or 13, 1998, he arrived at the ramp and saw IDOT workers. He walked up to look at the pothole the size of a Weber grill, approximately 18 to 24 inches wide and 6 to 10 inches deep. A worker told him that a lady had been hurt in a bad accident. The worker told Mr. Pugh that they had expected to get to this area a while ago, but had been busy on other jobs. The worker told Mr. Pugh that they were pulled off of another job to do the repairs on the ramp because of the accident. After Mr. Pugh told the worker that the injured woman was his wife and asked him to not dig up the pothole until he got a camera, the worker said he could not talk to him and walked away. By the time Mr. Pugh returned with a camera, the pothole area his wife had hit had been dug out. When he got out of his car to take photographs, the workers quit working and sat in their trucks. The photographs show that the Jeep rolled and stopped about 100 feet from one of the pothole areas.

Mr. Richard Semrov, a crew leader for the Department of Transportation, (IDOT) testified that he worked out of the yard responsible for repairs to the exit ramp in question. On November 12 and 13, 1998, his crew was assigned to do general maintenance in the area of the exit ramp, referred to as subsection 082, which is 3 miles in length and comprised of 28 lane miles. He did not receive any specific direction to work on the subject exit ramp, but was told to do the maintenance on the ramps and clover leaves. The procedure is for him to review the area and determine whether any repairs are necessary.

Semrov decided to replace some temporary patchwork in two places on the exit ramp even though he testified that there was nothing wrong with it. He believes the patchwork was in good condition and could have lasted longer. He did not see any holes in the road. The patchwork areas were chosen because they were the first ones he came across. The crew did partial patching (4-11), excavating halfway to the rebar, and full depth patching (4-12), going down beyond the rebar to the stone base. This was the only work done in subsection 082.

The IDOT computer records of work performed indicate that a crew was at the subsection on November 9, 1998, from 7:30 a.m. to 11:30 a.m. performing a partial patch. Res. Ex. No. 1. Semrov was not present at the site and there is no indication where at the subsection the work was preformed.

Semrov stated that a pothole would have to be a minimum of one foot wide and four to five inches deep before a full depth patch would be done on it. Rebar is four to five inches below the surface. A partial depth patch would be done for potholes half that size.

The photographs taken by Claimant's husband show the patching work in various stages. Semrov recalled that an individual, Mr. Pugh, approached him while they were working and asked if he could take pictures. Semrov denied that he told Mr. Pugh anything about the prior condition of the exit ramp. Semrov also denied that Claimant's husband asked him not to do any work on the pothole Mr. Pugh identified as the one his wife hit, until he could return with a camera. He did not see Mr. Pugh return and did not see him take any photographs.

The witnesses disagree on whether the ramp was closed for any periods of time other than during the removal of the Jeep. Claimant believes the ramp was closed for an extended period of time and did not know whether it was ever reopened. Her husband thought the ramp was closed by IDOT and kept closed indefinitely. Semrov believed that the ramp was only closed for a short period of time during the removal of Claimant's vehicle. Because of the nature of the repairs, the ramp was closed during the work on November 12 or 13, 1998. Mr. Ronald Hattendorf, Semrov's supervisor, stated that he was not aware of the exit ramp ever being closed. Both Semrov and Hattendorf stated that they were unaware of Claimant's accident prior to Semrov's assignment out to subsection 082 on November 12 and 13.

Mr. Michael Fitzgerald, an IDOT Claims Manager, described the way complaints about the highways are communicated to IDOT and the procedures for recording the complaints. He checked IDOT records for a period of 30 days prior to the accident and determined that no complaints about the exit ramp had been received.

The Law

The fact that a defect in a highway may have caused the accident is not determinative of negligent conduct on the part of the Respondent. In order for Claimant to recover for her injuries suffered as a result of an accident on a State highway due to a pothole, she must prove by a preponderance of the evidence, that the State was negligent, that the negligence was the proximate cause of her injuries, that a dangerous condition or defect existed, and that the State had actual or constructive notice of the dangerous condition or defect. Dixon v. State (1998) 51 Ill. Ct. Cl. 10. The State has a duty to exercise reasonable care in maintaining its highway so that defective and dangerous conditions do not exist. Id. at 15. The Dixon, found that the State did not have actual or constructive notice of the defect and therefore could not be liable for the injuries suffered by the motorcycle rider. The Court relied on evidence that showed the State's agents traveled on the ramp less than 72 hours prior to the accident and did not notice what the Claimant described as a large pothole. Id at 17.

In the case at bar, the primary factual question is whether a pothole or other defect on the ramp existed. There is no evidence that the State had actual notice of an open pothole, which Claimant contends that she hit. Claimant's testimony, together with the photographs taken by her husband and the fact that Semrov decided to make repairs on the ramp, are sufficient to establish that the ramp had some defects on its roadway. Notwithstanding Semrov's testimony, the evidence tends to show that it is more likely than not, that Claimant's Jeep struck a pothole or an area where a pothole had been previously patched, albeit temporarily. There is no evidence or allegation that Claimant was negligent in her driving and was the cause of her accident. Her husband testified to his estimate of the size of the pothole.

Whether the State had constructive notice depends on the facts of each case. It must be shown that the defect was substantial enough and must have existed for such a length of time that reasonable persons would conclude that immediate repairs should be made or, in the alternative that warning signs should be posted. Id. at 16. In Dixon Court there was no evidence that the pothole had ever been repaired. In the case at bar, the evidence shows that IDOT employees had made temporary repairs to potholes on the ramps. Clearly, Respondent had notice that the ramp was susceptible to pothole problems. The photograph taken by Mr. Pugh of the pothole filled after it was repaired shows that the original pothole was of the size testified to by him. Cl. Grp Ex. No. 3B (upper right).

Semrov's testimony that he decided to effectuate partial and full depth patching repairs of areas he described as being in good condition is not completely logical. Obviously, one can conclude that problems which caused the potholes were substantial enough that major repairs, full and partial depth patches, were needed. Semrov also testified that it is unusual for roadways to be closed, but his decision to make more substantial repairs to the pothole areas necessitated closing the ramps.

In Immordino v. State (1995), 47 Ill. Ct. Cl. 78, it was undisputed that an open pothole was in existence when Claimant struck it. The Court found that Respondent had constructive notice of the defect because the State had previously filled the hole with cold patch. In finding that the Respondent had constructive notice, the Court stated:

There is unfortunately no evidence to indicate when, who or how this patching had been done, but there is evidence that these patch jobs were only temporary and their duration would be effected by weather, traffic conditions, snow plow operations, location and durability.

Id. at 80.

The above quote is equally applicable to the instant case. The distinction between Immordino and the case at bar is the existence or extent of the defect at the time of the accident. There is no direct corroborating evidence to support Claimant's contention that the pothole was large enough to cause her Jeep to rollover. Claimant's husband tried to review the area a couple of days after the accident, but was hampered or prevented in his ability to gather objective corroborating evidence by the repair work of IDOT's employees. No nefarious intent is to be inferred on the part of Respondent's employees. Their appearance at the scene of the accident three days later doing work that would be necessary to repair the type of defect complained of in this case may be nothing more than a coincidence.

Mr. Pugh and Mr. Semrov tell different versions of their encounter. Therefore, the Court needs to review and rely on circumstantial evidence. The damage to the Jeep clearly shows both right side tires flat and both right side rims dented. The Court agrees with Mr. Pugh when he observed that it looks like Claimant hit something. Cl. Grp. Ex. No. 3D. There is no evidence of any other object being on the roadway or at the site of the accident. This is a close case, however this Court finds that the evidence considered as a whole shows that there was a substantial defect in the roadway of the ramp and it was of the nature that immediate repairs should have been made.

There is no evidence in this case that Respondent undertook any inspections of the ramp in question and therefore can not assert that it was diligent in adhering to its duty to exercise reasonable care in maintaining its highways. Respondent had prior actual notice of the potholes at the site. Claimant had demonstrated constructive notice of a defective condition and Respondent should have taken efforts to safeguard the users of the highway. This finding is not intended to be relied upon in the future for the proposition that the existence of temporary patches per se establish constructive notice of a later defect.

Claimant has met her burden to prove that the State was negligent and the negligence is the proximate cause of her injuries. Her injuries, according to Dr. Thomas, are serious and permanent. Her medical bills totaled $37,603.64. She is not able to perform her regular work duties and is working less that half time. She has pain and cannot participate in social, recreational and household activities to the same degree that she could prior to the accident.

Claimant has not met her burden to establish the amount of wages lost while she was off work. At times Dr. Thomas testimony appeared to indicate that she was able to perform light duty for some of the same periods she asserted that she was off work. Cl. Ex. No. 1, p. 15 (on 1/22/99, slip for light duty given). She has not proven that she can obtain other work to make up for her working less time on light duty at the post office. The dollar impact of this impairment and whether she benefited or not from worker compensation has not been proven, however, this impairment further demonstrates the extent of her personal injuries and will be considered in fashioning an award.

The Court hereby awards the sum of Seventy Thousand Dollars ($70,000) for personal injuries suffered by the Claimant.

PATCHETT, J.