BRENDA GILLESPIE v. STATE OF ILLINOIS DEPARTMENT OF TRANSPORTATION (2011)

ORDER

This case comes before this Court on Respondent's Motion to Dismiss, pursuant to Section 2-615 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-615. The Respondent filed its motion on November 13, 2009. The Claimant filed its response on May 17, 2010. The Court being fully advised:

IT IS HEREBY ORDERED:

Respondent's Motion to Dismiss is granted and Claimant's Complaint is dismissed for the following reasons: 1) there is no duty, as a matter of law, for the State to maintain the paved shoulder area of a highway for pedestrian use; and 2) even if such a duty existed, the Claimant's complaint fails to plead that the Respondent had either constructive or actual notice of the allegedly dangerous condition.

The Claimant alleges that on March 6, 2006 she was walking on the roadside of Poplar Street in Harrisburg, Illinois. There were no pedestrian sidewalks available for the Claimant to travel on, so she was walking on the roadside. While the Claimant walked along the roadside a vehicle approached her from behind, and fearing she was in the path of the vehicle, she moved to get out of the way. At that time, she stepped into a hole on the edge of the pavement and was subsequently injured.

The Claimant suffered a maxillary fracture, severe bruising and swelling on her face, head, right shoulder and right foot, along with a torn rotator cuff in her shoulder which required surgery. Following her injury, the Claimant spent several months in physical therapy.

The Claimant alleged that the Respondent negligently failed to maintain its premises as to prevent the Claimant's accident. In response to the Complaint, the Respondent filed a Motion to Dismiss. The Respondent argued that the Complaint failed to plead that Poplar Street in Harrisburg was a state highway, that the Respondent owed a duty to pedestrians to maintain the shoulder of a state highway, and that the Respondent had prior notice of the allegedly dangerous condition. In her Response to the Respondent's Motion to Dismiss, the Claimant states only that the injury occurred on a public pedestrian walkway, and therefore reiterates her claim that the State bears responsibility. The Claimant does not address the issue of lack of notice.

No allegation is made in the Complaint that Poplar Street in Harrisburg is a state highway. Assuming arguendo that Poplar Street is a state highway, however, this Court finds, as a matter of law, that the Respondent did not have a legal duty to maintain the shoulder of the road for pedestrian use in the same manner as it was required to maintain the traveled portion of the road. While it is well-settled that the State has a duty to maintain its roads in a reasonably safe condition for the purposes to which the portion in question is devoted, the law imposes no general duty on governmental entities for the safeguarding of pedestrians when they are using the public streets as sidewalks. Wheel v. State, 42 Ill.Ct.Cl. 231, 233 (1990).

Even where there is no sidewalk available for pedestrians, as in the instant case, the State does not thereby acquire a duty to maintain the shoulder of a road in the same manner as it does the traveled portion. In Callen v. State, 23 Ill.Ct.Cl. 172 (1959), this Court addressed a claim against the State that arose after the claimant fell into a hole on the shoulder of a state highway while leaving a tavern on the way to his parked car. The claimant filed a negligence claim in which he contended that the respondent owed a duty to pedestrians walking on the shoulder, or right of way, to maintain it for their protection. Id. at 174-175. In rejecting the claimants contention and denying the claim, the Callen court wrote: “[Even] though claimant and other patrons of the tavern had a right to walk upon the shoulder or State right of way going to and from the tavern, this would not require or place a duty upon the State to so repair or maintain the shoulder for pedestrians.” Callen, at 175-76.

Further, in order to maintain a cause of action for negligence, a claimant must allege facts establishing the existence of a duty, a breach of that duty, and an injury which proximately resulted from the breach. Ondes v. State, 43 Ill. Ct. Cl. 272, 275 (1990). When the Respondent is the State, the Claimant must also establish that the State knew of the condition, and that the condition proximately caused the incident. Cole v. State, 57 Ill. Ct. CI. 227, 229 (2005). The failure to establish notice of the condition precludes recovery. Id. “The mere fact that a dangerous condition existed is not, by itself, sufficient to constitute an act of negligence on the part of the Respondent.” Sowizrol v. State, 51 Ill. Ct. Cl. 91, 97 (1996). A claimant must prove that the State had “actual” or “constructive” knowledge of a pothole. Holm v. State, 54 Ill. Ct. Cl. 312, 316 (2001) citing, Kirby v. State, 42 Ill. Ct. Cl. 77 (1990).

In the case at hand, the Claimant has failed to plead any facts to establish that the Respondent had notice of the defect in the roadside, therefore, a negligence action cannot stand. For the Claimant to prevail, she would have to establish that the Respondent had either constructive or actual knowledge of the pothole. The Claimant has not alleged either actual or constructive knowledge on the part of the State, and it cannot be established based upon the available record. Her recovery, therefore, is barred.

For the foregoing reasons, the Claimant's complaint fails to state a claim upon which relief can be granted and, therefore, is hereby dismissed.

BURNS, J.