{ "id": 5808513, "name": "David H. Katzenberger, Claimant, v. The State of Illinois, Respondent", "name_abbreviation": "Katzenberger v. State", "decision_date": "1991-05-08", "docket_number": "No. 86-CC-2972", "first_page": "218", "last_page": "224", "citations": [ { "type": "official", "cite": "43 Ill. Ct. Cl. 218" } ], "court": { "name_abbreviation": "Ill. Ct. Cl.", "id": 8793, "name": "Illinois Court of Claims" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "461 N.E.2d 551", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "122 Ill. App. 3d 419", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3523017 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0419-01" ] }, { "cite": "421 N.E.2d 886", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "85 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5470281 ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0001-01" ] }, { "cite": "37 Ill. Ct. Cl. 221", "category": "reporters:state", "reporter": "Ill. Ct. Cl.", "case_ids": [ 5816170 ], "pin_cites": [ { "page": "223" } ], "opinion_index": 0, "case_paths": [ "/ill-ct-cl/37/0221-01" ] }, { "cite": "36 Ill. Ct. Cl. 214", "category": "reporters:state", "reporter": "Ill. Ct. Cl.", "case_ids": [ 2698060 ], "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/ill-ct-cl/36/0214-01" ] }, { "cite": "387 N.E.2d 936", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "942" } ], "opinion_index": 0 }, { "cite": "69 Ill. App. 3d 946", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3239988 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0946-01" ] }, { "cite": "408 N.E.2d 224", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "86 Ill. App. 3d 547", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3188769 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0547-01" ] }, { "cite": "37 Ill. Ct. Cl. 222", "category": "reporters:state", "reporter": "Ill. Ct. Cl.", "year": 1980, "opinion_index": 0 } ], "analysis": { "cardinality": 630, "char_count": 10595, "ocr_confidence": 0.879, "pagerank": { "raw": 6.087085966315723e-08, "percentile": 0.3757215188993644 }, "sha256": "4bf6d29832e0630239fe94d9f68a4a9f5d6e22169012c59646b98446357c9c0b", "simhash": "1:9c2fd2d8b1c1ddca", "word_count": 1749 }, "last_updated": "2023-07-14T21:36:42.826417+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "David H. Katzenberger, Claimant, v. The State of Illinois, Respondent." ], "opinions": [ { "text": "OPINION\nMontana, C.J.\nThis is a claim for personal injuries pursuant to section 8(d) of the Court of Claims Act. (Ill. Rev. Stat. 1989, ch. 27, par. 439.8(d)). Claimant David Katzenberger alleges that he was injured as a result of the negligence of one of the State\u2019s agents when, on March 14, 1985, he was forced to \u201clay his motorcycle down\u201d after a Department of Conservation truck unexpectedly entered his lane in order to make an improper U-turn.\nAt approximately 1:25 p.m. on March 14, 1985, Mr. Katzenberger was driving his motorcycle westward on U.S. 40. At the same time, Norman Williams, an employee of the Respondent\u2019s Department of Conservation, was operating (within the scope of his employment duties) a Department of Conservation truck on U.S. 40 approximately one-half mile west of Sand Prairie Lane.\nIt is Mr. Katzenberger\u2019s claim that, just prior to the accident, he was in the passing or inside lane, and that Mr. Williams was in the slower or outside lane. U.S. 40 at the point in question is a four-lane highway with two lanes going in each direction, with the east and westbound traffic being separated by a central divider or curb. Claimant testified that he was traveling approximately 45 miles per hour and that, as he came within 15 to 20 feet behind the Conservation truck, Respondent\u2019s agent stuck his hand out the window, waved it up and down, and proceeded to cross over into Claimant\u2019s lane. Claimant testified he did not notice any electrical turn signal. Upon further inquiry, Claimant testified that the Conservation truck, at that time, was travelling only 20 to 25 miles per hour and slowing. According to the Claimant, when the truck changed lanes, he was forced to move as close to the center curb as possible and, ultimately, to lay the motorcycle down in order to avoid hitting Mr. Williams.\nIt is undisputed that Claimant never struck the Conservation truck (the motorcycle and Claimant slid to a stop approximately 12 to 15 feet behind the truck). Other evidence was produced showing that Respondent\u2019s agent pled guilty, in Madison County Circuit Court, to the charge of attempting to execute an improper U-turn.\nClaimant also produced a Mr. Hooper who testified that he witnessed the accident in question. Although Mr. Hooper\u2019s testimony, at times, was a little confusing, after reading the entire transcript and taking his testimony as a whole, it is clear that Mr. Hooper agreed with Mr. Katzenberger as to what transpired on the day in question. It was Mr. Hooper\u2019s impression that Claimant was attempting to pass the Conservation truck. Mr. Hooper testified that when Claimant approached the Conservation truck, Mr. Williams went from the outside lane over into the passing lane and \u201cpushed claimant up on the median.\u201d\nThe Respondent, on the other hand, would have this Court believe that its agent was stopped in the left hand or passing lane for approximately a minute and a half. Mr. Williams testified that he had the electrical turn signal on, his foot on the brake, his hand out the window (\u201cfrantically waving it up and down\u201d), waiting for oncoming traffic to clear so that he could execute his U-turn. Mr. Williams testified that he saw Claimant initially attempt to maneuver around the truck; however, when the attempt failed, Claimant laid the motorcycle down with a resultant skid of approximately 30 feet.\nIt is undisputed that the weather was clear and that the road was dry, straight and level.\nRespondent first argues that Claimant has failed to prove negligence by a preponderance of the evidence. Additionally, Respondent argues that, even if it was negligent, such negligence was not the proximate cause of Claimant\u2019s accident.\nThe Court disagrees.\nIllinois Revised Statutes, chapter 95/2, par. 11\u2014 802(a) requires \u201cthat the driver of any vehicle shall not turn such vehicle so as to proceed in the opposite direction unless such movements can be made in safety without interfering with other traffic.\u201d Further, Illinois Revised Statutes, chapter 95/2, par. 11 \u2014 709(a) indicates that when driving on roadways laned for traffic, \u201ca vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.\u201d There is also an Illinois statute which defines the proper method of giving hand and arm signals. In 111. Rev. Stat., ch. 95M, par. 11 \u2014 806, it states: \u201cAll signals herein required to be given by hand and arm shall be given from the left side of the vehicle in the following manner, and such signals shall indicate as follows: (1) left turn \u2014 hand and arm extended horizontally; (2) right turn \u2014 hand and arm extended upward; (3) stop or decrease of speed \u2014 hand and arm extended downward.\u201d Additionally, this Court of Claims has stated: \u201cOperators of State vehicles are charged with the same duty of care as other drivers upon the highway, and the State is liable for damages proximately caused by their negligent acts.\u201d (Marquis v. State (1985), 37 Ill. Ct. Cl. 222.) Lastly, the Appellate Court for the Second District noted: \u201cA violation of a statute, such as a speed limit, that is designed to protect human life or property, is prima facie evidence of negligence.\u201d Old Second National Bank of Aurora v. Baumann (1980), 86 Ill. App. 3d 547, 408 N.E.2d 224.\nIn the case at bar, not only did Claimant testify as to negligent acts by Respondent, but so did an independent witness (Mr. Hooper), and Respondent\u2019s own agent (Mr. Williams). There is uncontradicted testimony that Respondent\u2019s agent gave an improper hand signal (i.e., he waved his hand up and down instead of as required by par. 11 \u2014 806). There is testimony (albeit conflicting) that Respondent\u2019s agent failed to use his directional turn signal. There is evidence that Respondent\u2019s agent improperly changed into, or encroached upon, Claimant\u2019s lane. There is testimony that Respondent\u2019s agent may have violated the common law maxim that \u201ca driver intending to stop or suddenly slow down his vehicle must use due care for the safety of vehicles following so closely behind him lest they may be imperiled by a sudden stop.\u201d (See Ryon v. Javior (1979), 69 Ill. App. 3d 946, 387 N.E.2d 936, 942.) Lastly, the mere facts that the Respondent\u2019s agent pled guilty to the charge of attempting to make an improper U-turn, and the accident itself, tend to show negligence. Taking all of the above into account, it is felt that Claimant has met his burden with respect to showing negligence and that Respondent\u2019s negligence was the proximate cause of Claimant\u2019s injuries.\nNotwithstanding the foregoing, it is felt that Claimant was also negligent. \u201cA driver of an automobile must use every reasonable precaution to avoid a collision with the automobile ahead.\u201d (Ryon at 952.) \u201cA driver approaching from the rear has a duty to keep a safe lookout and must take into account the prospect of having to stop his vehicle suddenly.\u201d Id.; Economy Fire & Casualty Co. v. State (1984), 36 Ill. Ct. Cl. 214, 215. \u201cA driver who does not maintain a proper lookout for traffic ahead is negligent.\u201d (Ryon at 952.) \u201cA driver\u2019s duty is to see that which he clearly should see.\u201d Marquis v. State (1985), 37 Ill. Ct. Cl. 221, 223.\nIn the case at bar, there is uncontradicted testimony that the road was clear, dry, straight and level. Claimant had a duty to observe, or take note of the Conservation truck. Additionally, Claimant should have foreseen that a Conservation truck may make unusual turns and stops in the performance of its duties. (See Marquis at 223.) Lastly, the fact that motorcycles are traditionally more difficult to observe (as compared to cars, etc.), should have given Claimant the impetus to exercise a greater degree of care for his safety. As Illinois has adopted the theory or doctrine of comparative negligence (see Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886), Claimant is found to have been 35% negligent and his award should be reduced accordingly.\nAs a result of \u201claying his motorcycle down,\u201d Claimant suffered a dislocated shoulder and lacerations and abrasions to his knees and elbows. The above-mentioned dislocation also caused Claimant to suffer a more permanent injury in that he has now lost some 55 degrees of flexion in his left shoulder. There is also evidence that Claimant might have suffered a possible rotator cuff tear (and, although disputed), an aggravation of a preexisting condition known as osteoarthritis.\nAs far as the osteoarthritis condition is concerned, Respondent draws attention to the fact that Claimant\u2019s counsel, during the medical expert\u2019s evidence deposition, failed to inquire whether the motorcycle accident aggravated said condition based upon a \u201creasonable degree of medical and surgical certainty.\u201d\nWhen addressing the above issue, it is important to note that the parties stipulated at the beginning of the doctor\u2019s deposition that \u201call objections, except objections to the form of the question asked, # * are hereby reserved * * As Respondent\u2019s objection goes to the form of the question asked, the objection should have been raised during the deposition. Since Respondent failed to object at the deposition with respect to this issue, it will be treated as having been waived.\nRespondent next argues that several of the itemized damages listed in Claimant\u2019s brief are either too speculative or excessive. As shown below in the award given, it is felt that Respondent\u2019s arguments have at least some merit.\nLastly, Respondent argues that Claimant\u2019s claim for lost wages should be denied. In its brief, Respondent cites Turner v. Chicago Transit Authority (1984), 122 Ill. App. 3d 419, 461 N.E.2d 551, as supporting the proposition that a plaintiff, unemployed at the time of an accident, cannot recover lost wages unless there is evidence establishing with reasonable certainty that, but for the accident, he would be employed at a similar job. Because it is felt that Claimant\u2019s employment opportunities were/are speculative at best, such claim for lost wages must be denied.\nThe Court therefore finds that the total value of this claim is $55,000.00. The above award should be reduced to $35,750.00 because Claimant is responsible for 35% of the total negligence.", "type": "majority", "author": "Montana, C.J." } ], "attorneys": [ "Kassly, Bone, Becker, Dix, Reagan & Young, P.C. (John M. English, of counsel), for Claimant.", "Roland W. Burris, Attorney General (Phillip McQuillan, Assistant Attorney General, of counsel), for Respondent." ], "corrections": "", "head_matter": "(No. 86-CC-2972\nDavid H. Katzenberger, Claimant, v. The State of Illinois, Respondent.\nOpinion filed May 8, 1991.\nKassly, Bone, Becker, Dix, Reagan & Young, P.C. (John M. English, of counsel), for Claimant.\nRoland W. Burris, Attorney General (Phillip McQuillan, Assistant Attorney General, of counsel), for Respondent." }, "file_name": "0218-01", "first_page_order": 330, "last_page_order": 336 }