BRIAN KMETZ v. THE STATE OF ILLINOIS (2016)

OPINION

This claim arises out of injuries that Brian P. Kmetz (“Claimant”) suffered during an automobile collision that was allegedly a result of negligent conduct of the Respondent, State of Illinois. Claimant alleges that on October 7, 2006 (“date of the incident”), Illinois State Police Trooper Michael Conner (“Conner”) negligently turned into Claimants lane, of travel while a pickup truck obscured Conners view. Respondent denies liability and claims Claimants own negligence should bar recovery. Claimant seeks monetary damages totaling $312,225.84, as compensation for medical costs, lost wages, pain and suffering and loss of a normal life.

FACTUAL BACKGROUND

At the time of this complaint, Claimant lived in Streator, Illinois with his wife Kathy Kmetz. Claimant had worked as a coal power plant control room operator at the Commonwealth Edison plant in Pekin since 1981. On the date of the incident, Claimant was driving westbound on Illinois Route 116 in the left-hand lane. Route 116 is a four-lane highway with two lanes of traffic in each direction of travel. The eastbound and westbound lanes are separated by a median which includes a left turn lane to turn left onto Route 26 from Route 116 westbound and a merging lane to merge onto Route 116 westbound from Route 26. On the date of the incident, Claimant approached the intersection of Route 116 and Route 26 when Claimant noticed that an Illinois State Police squad car with its emergency lights flashing was traveling eastbound on Route 116. Claimant witnessed the squad car move into the left-hand turn lane immediately behind a pickup truck on Route 116. As the pickup truck came to a stop in the turn lane, Claimant was unable to see the squad car or the squad cars emergency lights. Claimant believed that the trooper was pulling the pickup truck over for a traffic violation in the left turn lane of Route 116.

On the date of the incident Trooper Conner began his shift at 10:00 p.m. Conner was traveling on eastbound Route 116 in response to a report of “shots fired” on Bayview Drive. Trooper Conner approached the intersection of Route 116 and Route 26 with his vehicles emergency lights and siren activated and proceeded to enter the turn lane directly behind a pickup truck. Conner reduced his speed as a result of the pickup truck but never came to a complete stop. The pickup truck pulled to the edge of the turn lane and continued slowly into the turn to allow Conner to pass. Connors view was obstructed by the pickup truck and, as such, Conner did not see Claimant traveling westbound before the collision, Conner drove around the pickup truck and turned left, crossing the westbound lanes of Route 116. Claimant applied his vehicles brakes, swerved slightly to his right, and collided with Conners vehicle.

The collision was investigated by Illinois State Police Trooper Daniel Williams, a certified traffic crash reconstruction officer. His findings were as follows: at the intersection where the collision occurred, the roads were flat with no obstructions; the turn lane that Trooper Conner was traveling had a sign requiring him to yield to westbound traffic on Route 116; prior to applying his brakes, Claimants vehicle was traveling at 55.63 miles per hour. The speed limit was 55 miles per hour. Trooper Conners squad car was equipped with a dash video camera and an event data recorder. Trooper DeRenzy, another trooper present at the crash site, was certified to retrieve information from the event data recorder, but data from the recorder was never retrieved.

About two months prior to the collision. Claimant was hospitalized and administered antibiotics for a staph infection, which was believed to have dissipated. Additionally, Claimant had suffered injuries in a separate automobile accident in the past. Claimant had x-rays taken of his cervical spine on September 11, 2006, by Dr. Curtis Herwig, a chiropractor in Streator, Illinois.

Dr. Herwig interpreted the x-rays, concluding that Claimants neck showed mild disk narrowing but no fusion of any spinal vertebrae. After this accident, Claimants blood culture tested positive for staph infection. Claimant was hospitalized from October 8th until October 13th, 2006. Claimant was referred to undergo physical therapy at St. Marys in Streator. Here they uncovered decreased cervical mobility. Claimants primary care physician, Dr. Podzamsky, later referred him for further neck imaging, which was conducted on February 19, 2009. Dr. Green, a radiologist, interpreted the new x-rays, concluding that Claimant had a “surgical fusion” of the C4-C5 vertebrae. However, Claimant never underwent surgery on his neck or back.

As a result of the injuries suffered in the collision, Claimant incurred medical bills totaling $60,942.64, which have since been paid. Claimant also missed 41 days of work, resulting in lost wages of $11,283.20. As a part of his treatment, a rigid “Aspen collar” was required for sixteen hours per day for about two months. The spinal fusion is a permanent injury that decreases Claimants neck movement and limits his ability to extend his neck beyond fifteen degrees. Claimant is now able to perform his duties at work, but continues to suffer from pain and permanently decreased range of motion.

The primary issues before the Court are (1) whether Respondent, through Trooper Conner's conduct, breached a duty to Claimant and was the proximate cause of Claimant's damages; (2) whether Claimant's conduct constitutes contributory negligence; and (3) what, if any, damages the Claimant is entitled to recover as compensation for injuries.

ANALYSIS

I. RESPONDENT BREACHED ITS DUTY OF CARE OWED TO CLAIMANT, AND WAS THE PROXIMATE CAUSE OF CLAIMANTS INJURIES.

Trooper Connor acted negligently in making a left turn without stopping to assess whether he could safely make a left-hand turn without causing an accident with westbound traffic.

The law imposes a duty of care on operators of emergency vehicles requiring them to refrain from negligence. 625 ILCS 5/11-907, See also Carter v. DuPage County Sheriff, 304 Ill.App.3d 443, 448 (2d Dist. 1999) (citing Bradshaw v. City of Metropolis, 293 Ill.App.3d 389, 395 (5th Dist. 1977)). Although 625 ILCS 5/11-205 permits emergency vehicle operators to disregard traffic laws under certain circumstances, the operator must maintain due regard for the safety of others. Mayfield v. City of Springfield, 103 Ill.App.3d 1114, 1117 (4th Dist. 1982). In other words, an emergency vehicle operator does not have authority to disregard traffic control devices or other traffic laws if doing so would endanger others driving on the roadway. Id. In Mayfield, a police officer operating an emergency vehicle was found negligent after driving through a red light and into an intersection while his view was obstructed by another vehicle Id. The officers negligence was found to have been the proximate cause of the collision with the plaintiff and liability was imposed on the defendant. Id at 1119. In finding the officer to be negligent, the court commented on 625 ILCS 5/ 11-205 stating that “[t]his special rule governing drivers of emergency vehicles permits them to cautiously circumvent strict application of the traffic laws in the interest of hastening their mission… It does not permit them carte blanche authority.” Id. at 1117 (emphasis added).

The present case is factually similar to Mayfield. This Court is convinced that when Trooper Conner turned across the westbound traffic, his view of oncoming traffic was entirely obscured such that he could not make an informed decision as to whether doing so would endanger others on the roadway. As such, Trooper Conner disregarded a yield sign, while turning left through two lanes of oncoming traffic, without visibility of oncoming traffic, and without first stopping to assess whether he could do so safely.

This Court concludes that Trooper Connor operated his patrol car in a manner that a reasonable person would believe was likely to cause harm and, as in this case, caused actual injury to Claimant.

II. CLAIMANT WAS CONTRIBUTORILY NEGLIGENT.

Claimant was negligent in his actions. However, the Claimant's fault does not exceed fifty percent and, therefore, Claimants recovery is not barred.

In Illinois, a claimant is contributorily negligent if his “conduct falls short of the standard to which the reasonable person should conform in order to protect himself from harm.” Peterson v. Campbell, 105 Ill.App.3d 992, 996 (1982). A claimant is barred from recovering damages from a tortfeasor whenever the claimant's own contributory fault is greater than fifty percent of the proximate cause of the injuries sustained. 735 ILCS 5/ 2-1116(c). A claimant is not barred from recovery if his own contributory negligence constitutes fifty percent or less of the proximate cause for his damages, but his damages are diminished in the proportion to the amount of fault attributable to the claimants own actions. Id. When noticing emergency signals “all drivers have a duty, regardless of right-of-way, to maintain a proper lookout and to make all necessary precautions to avoid an accident.” Nolan v. Elliott, 179 Ill.App.3d 1077, 1082 (2nd Dist. 1989). The precautions necessary to avoid an accident in every case depend on the circumstances. Respondent asserts that Claimant was contributorily negligent by failing to follow the Illinois Vehicle Code, which states in relevant part:

the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the highway clear of any intersection and shall, if necessary to permit the safe passage of the emergency vehicle, stop and remain in such position. 625 Ill. Comp. Stat. Ann. 5/11-907(a)(1).

Claimant contends that §907(a)(1) does not apply because Claimant was driving on a divided highway and believed Trooper Conner was making a traffic stop. Instead, Claimant asserts that §907(c), which sets forth the law regarding what to do when approaching a stationary emergency vehicle, is applicable. The relevant portion of §907(c) states:

…an approaching vehicle shall: (1) proceeding with due caution, yield the right- of-way by making a lane change into a lane not adjacent to that of the authorized emergency vehicle … or (2) proceeding with due caution, reduce the speed of the vehicle, maintaining a safe speed for road conditions, if changing lanes would be impossible or unsafe. 625 Ill. Comp. Stat. Ann. 5/11-907(c).

This Court is not convinced that it was reasonable for Claimant to presume that Conners emergency vehicle was stationary. In the present case, Claimant saw Trooper Conner enter the left turn lane on Route 116. The left turn lane allows for eastbound traffic to make a left hand turn across westbound traffic on Route 116 to access Route 26. Trooper Conners patrol car disappeared behind a pickup truck and Claimant presumed that Trooper Connors patrol car had pulled over the pickup truck. As such, Claimant contends that he believed that the patrol car was “stationary” and that Claimant therefore acted appropriately. The term “stationary emergency vehicle” is not defined in the Motor Vehicle Code and, as such, this Court must apply a commonly understood definition of “stationary.” MerriamWebster defines stationary as “not changing” or “characterized by a lack of change.” Although Claimant testified that he believed Trooper Connor was pulling over the pickup truck in front of him, it is this Courts opinion that Claimants conclusion that the patrol car was ““stationary” was unreasonable. Regardless of whether Claimant believed that Trooper Conner was pulling over the pickup truck in front of him, this Court finds two reasons why it unreasonable to conclude that the position of Conners patrol car's would not change. First is location. The left turn lane of eastbound Route 116 allows for drivers to cross two lanes of traffic on Route 116 to access Route 26. Similarly, eastbound Route 116 is accessed from Route 26 at this same intersection by allowing vehicles to cross two lanes of traffic and turn left onto eastbound Route 116. This Court finds that it is unreasonable to conclude that a police officer would initiate and complete a traffic stop in this left turn lane. Second is proximity in time. Claimants testimony indicates that Claimant saw Trooper Conner approach the intersection and then disappear behind the pickup truck. Claimant did not see the officer exit his patrol car and the record reflects that the pickup truck continued to move slowly to allow Trooper Connor room to pass. It is therefore unreasonable for Claimant to presume that the position of Conners car would not change such that his patrol car was “stationary” and Claimant was under an obligation to take cautionary measures to ensure that the emergency vehicle had, in fact, become “stationary.” Claimant took no such actions. The report indicates that, at the time of the accident, Claimant was traveling in the left lane at 55.63 miles per hour. Claimant assumed that a patrol car that he had seen moving moments ago had become stationary in a left turn lane of a two way highway and took no action to slow down or afford extra, room to the patrol car.

For the foregoing reasons, this Court finds that Claimant was contributory negligent, but only twenty-five percent at fault for the accident.

III. CALCULATION OF DAMAGES

Claimant seeks total damages amounting to $312,225.84 based on the following breakdown: $11,283.20 in lost wages, $60,942.64 in the reasonable expense of necessary medical care, $90,000.00 in pain and suffering, and $150,000.00 for the loss of a normal life. This Court finds that Claimant has demonstrated that the collision has left Claimant with permanent injuries including a permanent limitation on his necks range of motion and a permanent compression or fusion of Claimant's C4-C5 vertebrae. This injury may impose additional stress and accelerate the degeneration process of Claimants cervical discs. Although Claimant is able to continue fulfilling the duties of his job, Claimant does have frequent pain and is limited from his injuries. For these reasons, this Court finds that an appropriate measure of both pain and suffering and loss of a normal life is $100,000.00.

Although previously argued at trial, Respondent has since conceded that the collateral source rule does not reduce Claimants recovery from the money he received in the form of disability payments. Respondent does, however maintain that Claimant is not entitled to damages resulting from lost wages due to his diskitis that was caused by his pre-existing staph infection. Respondents stance is that Claimant is only entitled to lost wages he would have earned on October 8, 2006 that resulted from the accident occurring. However, Respondents assertions are an incorrect application of law. Regardless of a claimant's preexisting medical conditions, a tortfeasor is liable for the injuries he proximately causes and may not be relieved of such liability by establishing that the claimants injuries would have been less severe if inflicted upon another person. Chicago City Ry Co. v. Saxby 213 Ill. 274, 279 (1904); Voykin v. Estate of DeBoert, 192 Ill. 2d 49, 57 (2000) (reaffirming the proposition that a plaintiffs aggravation of a pre-existing injury does constitute damages that the defendant is liable for so long as he is a cause for such aggravation). The aforementioned cases are directly applicable and establish that Claimants pre-existing staph infection does not relieve Respondent of liability for his damages, even if a claimant without a staph infection would have suffered less damages.

As such, the only factor that this Court will consider in reducing Claimants damages is Claimants own contributory negligence. As stated supra, this Court finds that Claimants actions constitute twenty-five percent of the proximate fault of the collision and his injuries. As such, Claimants damages of $172,225.84, which consists of $100,000 for pain and suffering and loss of a normal life, as well as $11,283.20 in lost wages and $60.942.64 for medical care, shall be reduced by twenty-five percent.

CONCLUSION

For the foregoing reasons, this Court finds that Claimant has demonstrated that Respondent acted more negligently than Claimant and has caused damages in the form of lost wages, medical expenses, pain and suffering, and loss of a normal life. After reducing Claimants total damages by twenty-five percent to account for Claimants contributory negligence, this Court enters judgment in favor of the Claimant in the amount of $129,169.38.

IT IS SO ORDERED.

BIRNBAUM, C J.