ECKBURG v. STATE OF ILLINOIS (2018)

OPINION

This claim is before the Court upon a recommendation from Commissioner Herbert B. Rosenberg. Claimant, DANIEL ECKBURG, individually, and DANIEL ECKBURG, as the Administrator of the ESTATE OF KRISTI ECKBURG, deceased, is seeking reimbursement in the amount of the $100,000 jurisdictional maximum for medical bills and personal injuries sustained by himself and for the medical bills, personal injuries, and funeral expenses for his wife, Kristi Eckburg. Claimant alleges that on August 11, 2007 he was traveling southbound on Illinois Route 2 on a motorcycle with his wife, Kristi Eckburg. When Claimant was at the 2000 block north of Byron, Illinois a tree branch fell onto Illinois Route 2 striking Claimant's motorcycle. Claimant sustained significant injuries. Claimant's wife sustained significant injuries and died during a subsequent surgery. Attorney Edward Maher of Guyer & Enichen, P.C. filed a complaint on behalf of the Claimant on May 5, 2008.

FACTS

In lieu of an evidentiary hearing, nine exhibits submitted with Claimant's Pretrial Memorandum were accepted into evidence along with four depositions of potential witnesses and a joint stipulation of trial testimony of a fifth potential witness.

LEGAL ANALYSIS

The State has a duty to the public to maintain highways in a reasonably safe condition by using reasonable diligence in the course of maintenance. State Farm Mutual Insurance Co. v. State, 53 Ill. Ct. Cl. 232, 233 (2001). However, the State is not an insurer against all highway conditions. State Farm Mutual Insurance Co. v. State, 53 Ill. Ct. Cl. 226, 229 (2001). When a dangerous condition exists on a State highway, Claimant bears the burden of establishing by a preponderance of the evidence that the State had actual notice or constructive notice of the dangerous condition. Scroggins v. State, 43 Ill. Ct. Cl. 225 (1991).

The basis of Claimant's claim is that Respondent was negligent in the inspection and maintenance of trees along the 2000 block north of Byron, Illinois along Illinois Route 2. For Claimant to recover, Claimant must prove by preponderance of the evidence that: (i) the State was negligent, (ii) the State's negligence was the proximate cause of Claimant's injuries, (iii) that a dangerous condition or defect existed, and (iv) that the State had actual or constructive notice of the dangerous condition or defect. Dixon v. State, 51 Ill. Ct. Cl. 10, 14 (1998).

Claimant failed to provide any evidence that Respondent had actual knowledge of the fallen tree branch prior to the Claimant's incident on August 11, 2007. Claimant's Exhibit 5 is a Department of Transportation record of work code no. 440 in Ogle County from August 13, 2002 to August 11, 2007. Mr. Andrew Dewey, who is a highway maintainer lead worker for the Illinois Department of Transportation testified at his deposition that work code no. 440 is used for cutting trees. However, Claimant's Exhibit 5 only shows one report for work code no. 440 on August 11, 2007 at 10:20 a.m. This work is subsequent to Claimant's incident with the fallen tree branch. Claimant's Exhibit 1 shows that a medical hospital helicopter was already called to transport Kristi Eckburg to Rockford Memorial Hospital at 10:00 a.m. The next most recent date that Claimant's Exhibit 5 has for work code no. 440 is August 8, 2007. Based on the lack of evidence in the record, there is nothing to indicate that Respondent had actual knowledge of any hazard in the 2000 block north of Byron, Illinois prior to Claimant's incident.

Claimant also failed to provide credible evidence that Respondent had constructive knowledge of a fallen tree branch in the 2000 block north of Byron, Illinois prior to Claimant's incident on August 11, 2007. To find that Respondent had constructive notice, Claimant must show that the defect was substantial enough and had existed for such a length of time that reasonable persons would conclude that immediate repairs should be made or that warning signs be posted. Aetna Casualty & Surety Co. v. State, 37 Ill. Ct. Cl. 179, 181 (1984). Claimant has not presented any evidence that the tree in question was hazardous prior to August 11, 2007. The burden of proof is on Claimant to show how long the dangerous condition existed. The first reported incident of any hazard in the area on August 11, 2007 is Claimant's incident. Where there is an absence of proof as to how long a dangerous condition existed, there is no evidence to charge the State with notice of its existence. Baker v. State, 42 Ill. Ct. Cl. 110 (1989).

Claimant presented evidence from a joint stipulation that Mr. Gordon Bell had complained about trees in the vicinity, but Mr. Bell's complaints were with respect to wet soil conditions and leaning trees and not specifically about the tree involved in this incident. Claimant also presented evidence from the deposition of Mr. Richard Maggi, an Illinois Department of Transportation landscape architect, that the State's inspection for potentially hazardous trees surrounding roadways consisted of a visual inspection while driving along the highway. However, there is no evidence to suggest that a reasonable person would have been able to identify the tree involved in this incident as hazardous prior to August 11, 2007. While tragic, “the State cannot be made an insurer against damage caused when a single limb from a single tree happens, through the process of decay or natural pruning, to have chosen to fall to the ground.” Gower v. State, 46 Ill. Ct. Cl. 434, 443 (1994).

Claimant's argument is not supported by case law. Claimant did not produce any evidence regarding the tree at issue to show that it was a hazard prior to August 11, 2007. Without any affirmative evidence presented, Claimant has failed to meet his burden. Claimant's failure to establish either actual or constructive notice of the dangerous condition precludes recovery in this matter.

IT IS HEREBY ORDERED that Claimant's claim is denied.

BIRNBAUM, CJ.