STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY RONALD BODIE v. STATE OF ILLINOIS (2014)

OPINION

State Farm Mutual Automobile Insurance Company brings this action, as subrogor of Ronald L. Bodie, against the Illinois Department of Transportation (“IDOT”) for damage to property. Respondent denies liability for this claim.

On May 23, 2010, in the late afternoon, Claimant was driving his 2007 Saturn Aura automobile on Interstate 94 from Chicago towards his home in Indiana. He was travelling at about 50 miles per hour. While travelling southbound in the right lane of Interstate 94 at about 172nd Street, Claimant observed an area in front of him that appeared to be under construction. He could not move to the left lane because of heavy traffic conditions. Claimant attempted to swerve to the right and went around an opening in the roadway. Claimant wound up hitting a second opening.

The openings were roughly two to three feet wide, ten feet long and six to eight inches deep. The openings appeared to have been cut by a saw or other equipment. The openings appear to be part of a construction site and not mere potholes. There were no barricades or other warnings posted. An Illinois State Police Trooper arrived on the scene and completed a report. The automobile was taken to Cars Collision Center in Highland, Indiana for repairs. The total costs incurred were $3,086.20.

Respondent argues that the State of Illinois had no actual or constructive notice of a dangerous condition or defect in the area. Respondent had no record of construction or repair occurring in the area. Respondent's witness is a representative from the IDOT claim's office. She sent an I DOT worker to check the accident area. The IDOT worker first went to the area on June 23, 2010, about a month after the accident. IDOT then had pictures taken on September 22, 2011, about one year and four months after the accident. There was no sign of any defects in the roadway at these times.

The witness further testified that her procedure in these cases is to contact various bureaus within IDOT about a claim and wait for their response. On cross-examination, she testified that she did not know how IDOT's Bureaus worked and whether there existed reports if work was performed on a roadway. However, all of the bureaus reported no knowledge of any defect or construction occurring on the roadway at the time of the accident.

LEGAL ANALYSIS

The law clearly imposes a duty on the State to maintain its streets and highways in a reasonably safe condition for the purpose for which they are intended. Dennis v. State of Illinois. 51 Ill. Ct. Cl. 142 (1998). However, the State is not an insurer of its highways. Id. The mere presence of a defect in the road is does not constitute negligence on the part of the State. Id.

A Claimant bears the burden of proving that the State is negligent in its duty to maintain the roadway in question, and that the State's negligence proximately caused Claimant's injuries. Bowley v. State of Illinois, 52 Ill. Ct. Cl. 18 (1999). Conversely, the State has a duty to exercise reasonable care in maintaining its highway so that defective and dangerous conditions do not exist. Id. The Court will also consider the comparative negligence of Claimant in adopting an award. Jacobs v. State of Illinois. 49 Ill. Ct. Cl. 16 (1997).

In order to recover damages, the Claimant must prove that a dangerous condition or defect existed and the State had actual or constructive notice of it. Bowley v. State of Illinois. 52 Ill. Ct. Cl. 18 (1999). The issue of notice is the crucial aspect of the Courts deliberations as even if a hazardous condition exits, the State must be given actual or constructive notice of same and a reasonable opportunity to remove or remedy the hazard. Tolbert v. State of Illinois. 57 Ill. Ct. Cl. 199 (2004). Each case involving constructive notice must be decided upon its own particular facts. Id.

An exception to the notice rule is applicable via the doctrine of res ipsa loquitor. Enyart v. State of Illinois. 57 Ill. Ct. Cl. 202 (2004). The Court has recognized the doctrine as follows:

When an injury is caused by an instrumentality under the exclusive control of the party charged with negligence, and is such as would not ordinarily happen if the party having control of the instrumentality had used proper care, an inference or presumption of negligence arises. The burden then rests upon Respondent to rebut the presumption of negligence arising from the facts of the case. Weigers v. State of Illinois. 40 Ill.Ct.Cl. 88, 91 (1988).

In the case at bar, the Claimant has testified that the hole in the roadway appeared to have been cut by a saw or other equipment. The openings appear to be part of a construction site and not mere potholes. There were no barricades or other warning devices posted. Respondent's witness testified that the State had no notice of the holes in the roadway. The witness further testified that only IDOT cuts holes in the roadway.

Negligence may be established by direct or circumstantial evidence. Dennis v. State of Illinois, 51 Ill. Ct. Cl. 142 (1998). The hole in the roadway was not merely a pothole but it was a deliberately cut opening. Such cuts and openings are only made by IDOT. Thus, the cuts in the roadway existed for at least one month on a busy interstate highway, or they could have occurred on the day of the accident. In either event, IDOT controlled the roadway and made the opening. Therefore, the issue of notice is not a factor in this case.

The doctrine of res ipsa loquitor should be applied when the Respondent fails to produce proofs to support an allegation of the States exercise of proper care under the facts alleged of record. Envart v. State of Illinois. 57 Ill. Ct. Cl. 202 (2004). Even if the holes had been cut on the day of the accident, the lack of barricades or other warning devices being present, or the lack of an explanation for this, constitutes a failure to produce proofs of the exercise of proper care under these facts.

Finally, Respondent argues that Claimant's recovery should be diminished for his own negligence in this case under the doctrine of the comparative negligence. Respondent argues that Claimant was negligent for swerving to the right onto the shoulder of the roadway in order to avoid the hole in the pavement. The hole was in part in the driving lane and in part on the shoulder of the roadway. We find this argument without merit as Claimant could not drive to his left to avoid the hole because of heavy traffic. His only recourse was to try and drive to the right.

In conclusion, Claimant has proved his claim by a preponderance of the evidence and, therefore, the claim is granted.

IT IS HEREBY ORDERED that Claimant, State Farm Mutual Automobile Insurance Company, as subrogor of Ronald L. Bodie, is awarded $3,086.20 as final disposition of this claim.

STEFFEN, J.