Sangosti v. State

OPINION Epstein, J. This negligence claim was brought by Robert Sangosti, Claimant, against the Respondents Department of Transportation (“IDOT”) for damages from personal injuries sustained by him while operating his vehicle on a State highway in 1981. Claimant alleges that a dangerous condition — a substantial grade separation at the edge of tire roadway — was negligently created or maintained by IDOT and, in addition, that IDOT negligently failed to provide appropriate warning signage of this condition, which caused Claimant to drive off of the roadway and to be unable to control his vehicle after partially leaving the roadway. The single-vehicle accident case is before us for final decision after trial, which was held before Commissioner Rochford, following our denial of the Respondents motion to dismiss, which was predicated on our exhaustion of alternative sources of recovery requirement (under section 25 of our Act [705 ILCS 505/25] and section 790.90 of our rules [74 Ill. Admin. Code section 790.90]). The Court denied that motion for lack of adequate supporting factual basis. Now, after trial, we must dismiss this claim on that same basis. The facts adduced at trial, insofar as pertinent to our decision, are as follows. The Facts On October 28, 1981, at approximately 1:30 a.m., Claimant Robert Sangosti was driving his vehicle after having exited Interstate 55 at the Highway 53 truck stop. Claimant attempted to return to 1-55, but found that the entrance ramp was closed. Claimant then entered the frontage road eastbound in an attempt to reach the nearest entrance ramp to 1-55. Claimant testified that he was not familiar with the area and that he did not notice anything unusual about the roadway. He stated that the road was initially straight and that he was traveling at approximately 40 miles per hour. Claimant noticed that the road took a sharp turn to the left at approximately 50 to 100 feet in the distance. At the curve, he began turning and braking, slowing slightly, and noticed that the road had a "sharp edge” to it, but no shoulder appeared. Claimant testified that he felt the two wheels of his vehicle go over the edge of the pavement, but was unsuccessful in his attempts to steer the vehicle back onto the roadway. The vehicle went "into a roll.” Claimant was unable to recall anything else about the accident. Claimant next remembered being in the grass and unable to stand up due to pain. He crawled to a nearby weigh station for help and the police and an ambulance arrived at the scene approximately ten minutes later. Claimant was transported and admitted to Edward Hospital in Naperville where he was x-rayed and diagnosed, and treated for a concussion, scalp laceration, and a fracture of the vertebra. Following four days at Edward Hospital, Claimant transferred himself to Christ Hospital where he remained for 13 days and was fitted for a back brace. Claimant called one expert witness, a retired civil engineer, who testified inter alia that the accident was caused by the differential in height between the roadway and the shoulder (but in his prior deposition had acknowledged that Claimant may have panicked and attempted to return to the roadway too quickly). The expert, James Breclaw, also testified that the accident was caused by the Respondents failure to provide sufficient traffic control devices to warn of the dangerous condition. However, he admitted in his deposition that it would be the responsibility of a contractor working on the road to provide the appropriate traffic controls. The Respondents departmental report established that the roadway in question was within IDOTs maintenance jurisdiction, and acknowledged that there was a “deep” drop-off between the pavement and shoulder at the area where Claimants vehicle lost control and left the roadway. The report also established that the maintenance of the subject roadway had been assumed by Peter J. Poulos & Sons, Inc., and Plote, Inc. under contract #34008 commencing August 26, 1980, and completing on December 1,1981. The terms of the contract specifically provided as follows: “Maintenance of Roadways: Beginning on the date when the Contractor begins work on this project he shall assume responsibility for normal maintenance of all existing roadways and shoulders within the limits of the improvement. This normal maintenance shall include all repair work deemed necessary by the engineer but shall not include snow removal operations. Traffic control and protection for this work will be provided as required by the Engineer.” Exhaustion of Alternative Recovery Sources The first, and dispositive, issue before this Court is whether Claimant failed to exhaust his remedies as to other potential sources of recovery, as required of all Claimants against the State by section 25 of our Act (705 ILCS 505/ 25) and section 790.90 of our rules (74 Ill. Admin. Code section 790.90); failure to do so is grounds for dismissal under section 790.60. Under our precedents, and indeed under the statute, a failure to exhaust an alternative recovery from another tortfeasor, unless excused, requires dismissal of the claim against the State in this Court. Claimants are required to exhaust all remedies; the Court cannot and does not allow discretion by Claimants to pick and choose whom they wish to sue. Burns v. State (1990), 43 Ill. Ct. Cl. 323; Boe v. State (1984), 37 Ill. Ct. Cl. 72, 72-76. In this case, the dispositive facts are clear and uncontradicted. IDOT had entered into a contract with Peter J. Poulos & Sons, Inc. and Plote, Inc. to perform construction work in the subject area during the relevant dates and times. The contract specifically provided that the contractor assumed all maintenance of the subject roadways in addition to all traffic control and protection for tire area of construction. Indeed, the contractor had that duty, independent of the terms of the contract, once it assumed control of the public roadway. Thus, the contractor had a tort duty to members of tire public driving on — or attempting to drive on — the subject way. Although it is not dispositive, it is also clear that the Claimant apparently had knowledge of the construction contract, as Claimants expert referred to the construction in his deposition testimony of August 1, 1990, and was knowledgeable about road construction practice. Clearly, the Claimant should have sued the contractor who had contracted with the Respondent and assumed responsibility for the maintenance and traffic control necessary at the site of the accident. The Claimant could have and should have sued Peter J. Poulos & Sons, Inc. and Plote, Inc., and had the claim against Respondent placed on general continuance. Claimant failed to do so, and has offered no compelling reasons for his failure to exhaust this obvious source of recovery, which also happens to be the party directly responsible for the two conditions that Claimant alleges to have been the proximate cause of his one-car accident. For the foregoing reasons, this claim is denied and dismissed with prejudice.