MICHAEL MOEBS v. THE STATE OF ILLINOIS (2003)

OPINION

This claim is before the Court upon a recommendation from Commissioner Michael E. Fryzel following an evidentiary hearing.

Claimant, G. Michael Moebs, filed his Complaint sounding in negligence and seeking damages of $100,000.00 plus costs in this court on August 29, 1995. This is a tort claim for personal injuries received when the front wheel of the bicycle Claimant was riding became caught in a sewer grate, causing him to fall.

FACTS

On August 31, 1993 Moebs was riding a bicycle north along Sheridan Road north of Witchwood Lane in Lake Bluff, Lake County, Illinois. The front wheel of his bicycle became stuck in a sewer grate, causing him to be thrown forward over the handlebars of his bicycle. He injured his head, face, right hip, right leg, right arm and right shoulder. He was taken to Lake Forest Hospital and subsequently transferred to Evanston Northwest Hospital. He was slowly coming out of a coma while a patient in both hospitals. The head injury caused impairment to his thinking, talking, memory and writing which greatly reduced his income as a speaker on economics. Out of pocket expenses not covered by insurance totaled $36,132.21.

LEGAL ANALYSIS

Mark Reznicek testified for Respondent. Reznicek is a Plan Preparation Engineer, has worked for the Illinois Department of Transportation since 1985, and is in charge of about 20 people who prepare plans and specifications for roadway improvements.

Reznicek testified that the purpose of a sewer grate is to allow water to drain down into the catch basin, to remove the water from the roadway and to support heavy traffic. The grate in question is a Type 10 and was probably placed in the roadway as part of a project in 1954 during which Sheridan Road was widened, resurfaced and had gutters installed along the edge of the pavement.

In 1973 IDOT adopted a policy to replace Type 10 grates with upgraded, bicycle-safe grates when a project impacted the structure of which a grate was a part, or if the elevation or location of the structure were adjusted. It would not be practical or economically feasible to constantly change all roadway, structures and grates to conform to current standards.

In 1979 a storm system was installed on the west side of the road. This was the first project since 1954 and involved resurfacing the road surface. IDOT policy does not consider resurfacing to be a major improvement since it involves milling off a half inch of the old surface and putting on a new surface. The project, which occurred on the opposite side of the road, did not impact the subject drainage structure or the grate.

In 1996 the subject sewer grate was upgraded to standards in existence in 1996 during a project to fix a drainage problem and repair deterioration to the drainage structure.

This Court stated in Koepp v. State (1993), 46 Ill. Ct. Cl. 344, 348 that:

Claimants have the burden of proving, by a preponderance of the evidence, that the Respondent was negligent and that the State's negligence was the proximate cause of the Claimant's injuries. Bauman v. State (1981), 34 Ill. Ct. Cl. 140; Phillips v. State (1991), 44 Ill. Ct. Cl. 89; Mathews v. State (1992), 44 Ill. Ct. Cl. 291.

Further, this Court held in Kelly v. State (1998), 50 Ill. Ct.Cl. 146, 150 that:

The State owes a duty to all users to maintain its roadways in a reasonably safe manner for motorists. That duty also applies to bicyclists and riders of motorcycles. The State's duty to the public is to use reasonable, ordinary care to maintain its roads. (Walter v. State(1989), 42 Ill. Ct. Cl. 2, 4.) The Court has repeatedly ruled that in order to recover Claimant must prove by a preponderance of the evidence that a dangerous condition existed, that Respondent knew of the condition and that the condition proximately caused the incident. Tour Loukis v. State (1995), 47 Ill. Ct. Cl. 155, 157-8; Scarzone v. State (1990), 43 Ill. Ct. Cl. 201.

The State must have either actual or constructive notice of the defect. (Immordino and Cartage v. State) (1995), 47 Ill. Ct. Cl. 78, 80.) To establish constructive notice it must be shown that the road defect was substantial enough and existed for such a length of time that reasonable persons would conclude that immediate repairs or warning signs were necessary. (Immordino and Cartage v. State at 80.) Each and every case involving constructive notice must be decided on its own particular facts. Stills v. State (1989), 41 Ill. Ct. Cl. 60, 62.

To be in a dangerously defective condition, a highway must be in a condition unfit for the purpose for which it was intended. Schmidt v. State (1998), 50 Ill. Ct. Cl. 132. The fact that a defect in a highway may have caused the accident in issue is not determinative of negligent conduct on the part of the Respondent. Dixon v. State (1998), 51 Ill. Ct. Cl. 10, 14. The Court has never held that all state roads must be bump free. To do so would make the state an insurer. Allen v. State (1984), 36 Ill.Ct.Cl. 242, 244. The State is not an insurer of all persons traveling on its highways. Toliver v. State (1994), 47 Ill.Ct.Cl.55, 50; Griffin v. State (1994), 36 Ill.Ct.Cl. 206.

In the instant case Claimant is arguing that the subject grate was dangerous in that it no longer met existing standards, and that the Respondent had a duty to upgrade it accordingly. Roadway construction standards are changed from time to time to reflect new or different conditions and improvements in materials and design and provide greater safety to the motoring public. In Hodge v. State, (1981), 35 Ill. Ct. Cl. 50. 55 this Court held that it is not unreasonable to conclude that monetary limitations would prevent the state from completely redoing every state highway every time the State adopts new construction standards for reconstructed or new highways.

This Court has not required that the State upgrade its roads and appurtenances to current standards when the roads and appurtenances complies with existing standards at the time they were constructed. In Chandler v. State, 87 CC 360, opinion filed December 30, 1999, while denying Claimant's claims, the Court held that there had been no need to replace the sewer grate prior to the accident since no repairs had been made in the area which would have necessitated replacement. In Fejes v. State, (1994), 46 Ill. CT. CL. 109, 126 this Court denied Claimant's claims since there was no evidence that would prove the Respondent was not in compliance with accepted safety standards either at the time the subject abutment and the highway were initially constructed, or on the date of the accident. This Court in Pro v. State, 47 Ill. Ct. Cl. 137 cited Hodge, stating that:

This Court held that changes in highway construction standards to provide greater safety to the motoring public do not necessarily require that the State constantly upgrade highways to meet those standards. The Court further found that such an imposition of responsibility would be impossible to meet in view of public finances and available manpower.

Claimant has failed to prove that Respondent had actual knowledge of the existence of a defective condition at the subject location. No evidence was submitted that the State received notice of any complaints and/or accidents regarding the grate prior to the subject accident. Further, Claimant's argument that new standards must be implemented constantly to sewer grates must fail for lack of feasibility. Claimant has failed to prove Respondent's negligence.

IT IS HEREBY ORDERED that this claim is denied.

STAMP, J.