LAURA WALLS v. STATE OF ILLINOIS (2015)

OPINION

FACTUAL BACKGROUND

On June 13, 2008, Claimant Laura Walls and her husband Brent Walls traveled some 400 miles on their motorcycle from their home in Rock Falls, Illinois to attend a motorcycle rally at Cave-In-Rock, Illinois. They were accompanied by two of Brent Walls brothers (Donald and Bill), as well as friends Jerry Celletti, Todd Sanders, and Tammy Crebo. Brent Walls testified at a hearing before Commissioner Cavanaugh that the motorcycle he and Claimant were riding was a pre-owned 2006 Harley-Davidson Screaming Eagle Ultra Classic they purchased in September 2007. It had 5,000 miles on it when purchased.

Brent Walls further testified that when he bought the motorcycle, a new rear tire had been put on it pursuant to a safety inspection at the dealership selling him the motorcycle. Brent Walls stated that he only rode the motorcycle for a month before putting it away for the winter. The trip to Cave-In-Rock was the first time they used the motorcycle since putting it away. He estimated that the new tire had less than 1,000 miles on it when they embarked for Cave-In-Rock on June 13, 2008.

On the morning of June 15, Claimant, Brent Walls, and their companions headed back home to Rock Falls, Illinois. Claimant was sitting behind Brent Walls on their motorcycle with a 58 inch by 60 inch trailer attached to the back of it. About eight hours into the ride, Brent Walls got off Route 39 and onto 1-80 west. At that time, Claimant and Brent Walls were still accompanied by four of their companions. They were riding in a staggered formation on the outside lane of the four-lane highway (two lanes going east, and two lanes going west). Both Claimant and Brent Walls testified that they were in the front of the formation, which consisted of four motorcycles. Claimant testified at the trial that Donald Walls and Tammy Crebo were on the motorcycle behind them; then Todd Sanders on his motorcycle; and Jerry Celletti at the end.

Both Claimant and Brent Walls testified that the moment they got onto 1-80, it was filled with potholes. Brent Walls stated he had never seen so many potholes in his life. The evidentiary depositions of Donald Walls, Todd Sanders, and Jerry Celletti, which were taken in September of 2012, corroborate this characterization. In fact, Todd Sanders stated that when he noticed Claimant and Brent Walls losing control of their motorcycle, he himself had just hit his second pothole on that road. Despite the condition of the road, all five riders testified that they were going about the speed limit, which based on their individual estimations, was between 55 mph to 65 mph.

According to Brent Walls they had been on 1-80 for about 27 miles with potholes everywhere throughout this stretch of road—when he got into the left (inside) lane so he could pass a semi in front of them. He explained that based on his experience driving trucks with a CDL license, he knew it was safer for motorcycle drivers to get in front of semis because semis often cannot see motorcycles behind them. Brent Walls testified that as he was crossing between the two lanes to move back over to the right (outside) lane, he felt like the motorcycle hit something hard because the whole bottom bottomed out. Claimant also testified that she felt the bottom go out as they were moving back into the right lane.

Three years ago, in their depositions, neither Claimant nor Brent Walls mentioned passing the semi when the tire blew out. In fact they both said that there were no vehicles in front of them when the accident happened and that the semi had been behind them for quite some time. Todd Sanders testimony also indicated that the semi had been behind them the entire time. He stated that, for about ten miles, the semi had been following them as they went in and out of the lanes to go with the flow of traffic.

Regarding what happened after the tire blew out, Brent Walls testified that once he realized that the back tire was flat, he did all he could to hold the motorcycle upright. As he put the motorcycle down on its left side, Claimant flew off the motorcycle, and Mr. Wallss left leg and foot got pinned underneath the bike as it dragged him along until it hit the bridge. Claimant recalled that she was on all fours when she saw their trailer coming toward her, which then knocked her over into the other lane. She suffered a degloving and crush injury to her left foot. Brent Walls testified that blood from Claimants left foot was squirting everywhere, and the heel of her foot had come off. The accident occurred around the 51 mile marker of 1-80 west in Bureau County.

Claimant was taken from the scene of the accident by ambulance to Princeton Hospital, where medical records reveal that she told doctors that the accident occurred because their tire had blown out. Later that night, she was airlifted to OSF St. Francis in Peoria, Illinois. After 12 days, she was released from the hospital and required at home nursing care and a hospital bed set up in her home for two years. During those two years she could only get around with an electric scooter or walker.

As of April 4, 2015, she still used a cane, and sometimes an electric scooter. Doctors have tried reconstructing her foot through three surgeries and one skin graft. It appears at least one more surgery will be required. Claimant has suffered great pain and discomfort due to her left foot injury.

All of Claimant's riding companions testified that they never saw Claimant and her husband hit a pothole; nor could they positively identify the cause of the tire blowout. Todd Sanders testified that he did however tell the officer on the scene about the condition of the road and how he himself had hit two potholes, but the police report made no mention of any potholes.

Trooper Matthew Dalton, the officer on the scene who wrote the report, testified that if he had seen potholes or had been told about them, he would have so noted in his report. Further, he stated that had he been told that a pothole caused the accident, or had he deduced that himself, he would have notified the Illinois Department of Transportation (IDOT) about the pothole. However he did not, and this was confirmed by IDOT records.

About five weeks after the accident, Brent Walls returned to the scene of the accident with a private investigator, who took pictures of the location in question. These pictures, admitted into evidence over Respondents objection, depicted patches on the road. Brent Walls testified that although he did not see the pothole he hit at the time of the accident, he knew which one it was after he and the private investigator reviewed these pictures and the area where the accident occurred. On the picture introduced into evidence as Claimants Exhibit 2, He drew a circle around a patched area of road between the two westbound lanes and stated that this was the location of the pothole he hit.

IDOT records reveal that a 12-mile stretch of 1-80 that goes through Bureau County (which includes where Claimants accident occurred) was patched a few days after the accident. IDOT engineering technician Alex Patelli was in charge of IDOT roads in Bureau County at the time of the accident. He explained that the records did not indicate what was patched on that stretch of 1-80 a few days after the accident, and that patching was not necessarily limited to potholes. It could also be used, for instance, to fill cracks along the shoulder of the road. He also stated that he was not aware of any reports made regarding potholes on 1-80 in June of 2008— before or after the accident. Further, two days before the accident, IDOT had checked that stretch of 1-80 for hazards. Any potholes big enough to cause an accident would have been repaired, or a request would have been made for a truck with bituminous mix to make repairs.

ANALYSIS

To prove negligence, a claimant must establish the following: the existence of a duty that respondent owed him; the respondent breached that duty; and that the breach proximately caused the claimants damages. Estate of Johnson by Johnson v. Condell Memorial Hosp, 119 Ill.2d 496 (1988). Generally, one owes a duty of ordinary care to guard against injuries to others that may result as a reasonably probable and foreseeable consequence of negligent conduct. Karas v. Strevell, 369 Ill.App.3d 884, 889 (2nd Dist. 2006).

With respect to its roads, the States duty of ordinary care includes maintaining its roads and preventing the existence of defective and dangerous conditions on its highways. Trotter v. State, 45 Ill.Ct.Cl. 164, 168 (1993). However, the State of Illinois is not an insurer of the conditions of its roadways. Id. Thus, as part of establishing that Respondent breached its duty of ordinary care, Claimant must prove that the potholes constituted a dangerous condition of which the State had either actual or constructive notice. See Dunbar v. State, 45 Ill.Ct.Cl. 175 (1992).

Based on IDOT's records, there was no actual notice of the potholes at the location in question. The two general methods for proving constructive notice of a defect are the length of time that the defect existed and/or the defect being so substantial in size that constructive notice should be imputed by the nature of the condition itself. See Rivera v. State, 63 Ill.Ct.Cl. 218, 225-26 (2011). Here, we have pictures of the scene of the accident taken about five weeks after it occurred. These pictures do not depict actual potholes, but instead a scattering of road patches. Claimant avers that these road patches are patched potholes, potholes that existed five weeks prior when Claimants accident occurred.

Claimant argues that the number of these road patches and the amount of area that some of them cover show that when the potholes existed they must have been of a dangerous nature and were substantial enough that they existed for a considerable period of time within which Respondent should have discovered them. We disagree. First, it is unclear from the pictures whether all of these road patches are patched potholes. This includes the road patch that Claimant identified as the location of the pothole she hit. Further, with respect to this particular road patch, if it is a patched pothole, we cannot determine based on these pictures alone what the nature and magnitude of this pothole was when it existed because there is no evidence about how deep it was. Thus, we have no basis to find that Respondent had constructive notice of any potholes constituting a dangerous condition on that stretch of 1-80.

Claimant has also failed to establish that her tire blowout was proximately caused by one of these alleged potholes. Proximate cause describes two distinct requirements: cause in fact and legal cause. Abrams v. City of Chicago, 211 Ill.2d251, 258, 811 N.E.2d 670, 674-75 (2004). A defendants conduct is a ““cause in fact” of the plaintiffs injury only if that conduct is a material element and a substantial factor in bringing about the injury—but for the defendants conduct, the injury would not have occurred. Id. Legal causation is more ephemeral: In order to show legal causation the plaintiff or claimant must show that the injury was reasonably foreseeable when the act or omission occurred. Watson v. Enter Leasing, 325 Ill.App.3d 914 (1st Dist. 2001).

Here, to establish that the pothole on 1-80 was the cause of her tire blowing out, Claimant needs to establish that it is more likely than not that the pothole was a substantial factor in causing her tire to blow out and that the injury was reasonably foreseeable. Claimant mentioned to the ER doctors that the accident occurred because of a tire blowout, but said nothing about a pothole. Although Mr. Sanders testified that he told Trooper Dalton that he himself had gone over a few potholes, neither he nor any of Claimants other riding companions told Trooper Dalton that a pothole caused Claimants accident—in fact none of them testified even seeing Claimants motorcycle hit a pothole when the blowout occurred. Further they all drove on 1-80 for some 27 miles—actively switching lanes—while going 55 mph to 65 mph without incident. And Claimants front tire, which was older, presumably passed over the same alleged pothole without incident.

No one at the time of the incident attributed the blowout to a pothole because no one knew exactly why the blowout occurred. Additionally, Claimant does not present any expert testimony indicating that the physical condition of the tire after it blew out was such that it was caused by hitting a pothole. See e.g., Blair v. State, 47 Ill.Ct.Cl. 108, 111 (1994). In Blair the finding that a pothole was the proximate cause of Claimants motorcycle injuries was supported by Claimant's expert testimony. In Blair, the expert said that based upon a reasonable degree of engineering and accident reconstruction certainty the final resting point of the body and the motorcycle were entirely consistent with his motorcycle striking a pothole. Here, Claimant and her husbands testimony at trial that a pothole caused their blowout is simply speculation.

Thus, we find that Claimant has failed to establish that a pothole on 1-80 was the cause in-fact of the tire blowout causing her injuries. Accordingly, we find that Claimant has failed to meet her burden in establishing by a preponderance of the evidence that a pothole was the proximate cause of her tire blowout, and Claimants claim is hereby denied.

BIRNBAUM, C. J.