PAUL GERLACH v. STATE OF ILLINOIS ILLINOIS DEPARTMENT OF TRANSPORTATION (2014)

OPINION

This matter comes before the court on the trial held October 16, 2012 before Commissioner Andrea M. Buford.

FACTS

On Sunday, April 26, 2009, Claimant was riding his bicycle in the eastbound lane of Lake Cook Road, east of Bateman Road in Barrington Hills, when his bicycle struck a pothole causing him to fall and sustain injuries. On Saturday, April 25, 2009, the day before, Respondent received notice of the existence of the pothole. The pothole was repaired on Monday, April 27, 2009.

The claimant testified he did not see the pothole prior to the fall, did not get a good look at it after the fall and could not affirm whether the pothole was filled with water.

State witnesses testified to the process and procedure on pothole repairs and specifically as to what happened in the instant case. When a call comes in regarding a pothole, unless it is an emergency, it will be put on the pothole sheet and it will be repaired on the next work day. If it is characterized as an emergency or hazard by an official source, an incident report will be prepared and they will call in emergency personnel to assess and repair. In the instant case, the call came in from police dispatch, who did not report the pothole as a hazard. IDOT relies on official sources, police personnel, to determine if a condition is a hazard. The police officer in this case did not think the pothole was a hazard, did not report it as such and did not take any steps to warn anyone of its existence.

ANALYSIS

The State is not the absolute insurer against all accidents which may occur by reason of the condition of its highways. Brady v. State of Illinois, (2007) 54 Ill.Ct. C1.397. To recover, the claimant must prove by a preponderance of the evidence that 1) the State breached its duty of reasonable care, 2) the State's negligence was a proximate cause of the injury, 3) a dangerous condition or defect existed and 4) the State had actual or constructive notice of the condition. Neuhalfren v. State of Illinois, (2007) 59 Ill.Ct.Cl. 350, Blair v. State of Illinois, (1994) 47 Ill.Ct.Cl. 108.

In order to recover, claimant must establish the respondent had actual or constructive notice of the condition. Margolis v. State of Illinois, (1998) 51 Ill.Ct.Cl. 32. Constructive notice can be imputed to the State where a condition by its nature, duration and potential for harm should have come to the attention of the State so that the State would have made repairs. State Farm Mutual Insurance Co. v. State of Illinois, (2001) 53 Ill.Ct.Cl.232.

Here, the State received notice of the condition on the Saturday evening before the accident when a full complement of staff is not available. Claimant was injured the next day, Sunday. The State followed procedure, when based upon the notice received; the pothole was repaired on the following business day, Monday. Unfortunately, Claimant was injured on Sunday. However, it cannot be said that the State breached its duty based upon the facts as outlined above.

Based on the foregoing, claimant cannot establish Respondent breached its duty to use reasonable care in the maintenance of its highways. Therefore, Claimant has not met his burden and the claim is hereby dismissed.

KUBASIAK, J.