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12/20/88 Barbara J. Long, v. Claude Friesland

December 20, 1988

BARBARA J. LONG, PLAINTIFF-APPELLEE

v.

CLAUDE FRIESLAND, AS HIGHWAY COMMISSIONER OF HILLSBORO TOWNSHIP, ET AL., DEFENDANTS-APPELLANTS AND COUNTERPLAINTIFFS-SEPARATE APPELLEES (DAYNA LEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

Watkins, Third-Party Plaintiff and

Counterdefendant; Diana Holmes,

Third-Party Defendant and

Separate Appellant)

No. 5-86-0734

532 N.E.2d 914, 178 Ill. App. 3d 42, 127 Ill. Dec. 85 1988.IL.1834

Appeal from the Circuit Court of Montgomery County; the Hon. Edward C. Eberspacher, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE WELCH delivered the opinion of the court. HARRISON and LEWIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

Following a jury trial in the circuit court of Montgomery County, plaintiff, Barbara Long, obtained a judgment in the amount of $215,000 against defendants Hillsboro Township, a municipal corporation, Claude Friesland, as highway commissioner of Hillsboro Township (hereinafter referred to collectively as the Hillsboro defendants), and Dayna Lee Watkins. Plaintiff sued defendants to recover for injuries she sustained when the vehicle she was driving collided with one driven by defendant Watkins on a road owned and maintained by the Hillsboro Township Road District. Plaintiff Long was found contributorily negligent in the amount of 5%. The jury prorated the relative degree of culpability of the defendants at 75% for defendant Watkins and 25% for the Hillsboro defendants. Judgment was entered upon the jury's verdict on May 21, 1986.

The automobile accident occurred on the morning of September 11, 1980, on a Hillsboro Township road commonly known as Huber Hill Road. Huber Hill Road is an oil and chip road which runs east and west. Plaintiff, Barbara Long, was proceeding eastbound on Huber Hill Road in a car owned by her sister, Diana Holmes, who was a passenger in the car at the time of the accident. Defendant, Dayna Lee Watkins, was travelling westbound on Huber Hill Road. As the Long vehicle approached a steep hill, the Watkins vehicle crested the hill partially in Long's lane of traffic. The two vehicles collided head-on and all three women sustained injuries. Plaintiff Long's injuries were by far the most severe.

Separate appeals are brought by the Hillsboro defendants and by Diana Holmes. Defendant Watkins is not appealing from the judgment entered against her. We will first address the issues raised by the Hillsboro defendants, and then will turn to the issues raised by Diana Holmes. We will set forth only those facts which are necessary for our decision.

The Hillsboro defendants raise four arguments on appeal: (1) that the trial court erred in denying their motions for directed verdict and for judgment notwithstanding the verdict because (a) plaintiff failed to establish any standard of care or duty breached by defendants, and (b) defendants are immune from liability as public officials; (2) that the jury's verdict in favor of plaintiff is against the manifest weight of the evidence because plaintiff failed to prove any negligence or fault on the part of the Hillsboro defendants; (3) that, as a matter of law, the condition of the township road was not a proximate cause of the accident; and (4) that the trial court erred in instructing the jury that they could award plaintiff damages for lost future earnings and for future medical costs where there was no evidence to support such an award. We find no merit in any of defendants' arguments and affirm the judgment of the circuit court.

Plaintiff Long's complaint alleged, in relevant part, that the Hillsboro defendants had been negligent in maintaining Huber Hill Road in that they failed to maintain the road surface at a sufficient width to allow two oncoming vehicles to pass each other safely, and failed to maintain the area adjacent to the road surface with reasonable care at or near the scene of the accident. Specifically, plaintiff alleged that the Hillsboro defendants allowed trees, brush and weeds to grow up on either side of, and encroach upon, the roadway, further diminishing its width.

The following evidence was adduced by plaintiff at trial. Plaintiff, Barbara Long, testified that she had picked up her sister, Diana Holmes, and was driving Holmes' vehicle eastbound on Huber Hill Road, approaching the hill near the accident site. Trees, brush and weeds overhung the oiled portion of the road by approximately two feet on her side of the road. The brush created a "tunnel effect" and obscured the view of the top of the hill. Long was familiar with the hill she was approaching, knew it to be dangerous, and decreased her speed as she approached it. Long was driving far enough to the right side of the roadway that the brush was scratching the side of the car. At one point, a tree limb caught on the passenger's blouse and tore it. Plaintiff testified that she always drove Huber Hill Road with her right tires on the shoulder, which in some places was wide enough for two or three people to walk. Plaintiff did move slightly toward the center of the roadway just before the accident. Plaintiff saw the Watkins vehicle crest the top of the hill. Plaintiff momentarily accelerated and turned the wheels sharply to the right in an attempt to avoid the collision. Her car partially entered the ditch at the side of the road and came to a complete stop. The Watkins vehicle then collided with plaintiff's vehicle.

Dayna Lee Watkins testified that she was driving westbound on Huber Hill Road and did not see the Long vehicle until she crested the top of the hill near the accident site. The Long vehicle was on its own side of the roadway but Watkins testified that her vehicle had crossed over the imaginary center line of the oiled surface of the road. Watkins described the hill as a "bad hill, real narrow, road." She stated that two cars could not pass each other at the crest of the hill if both stayed on the oiled surface. On the Watkins side of the road, brush and tree limbs would strike a vehicle if it stayed on its own side of the road. This is why Watkins was driving to the left of the center line at the time of the accident. She also testified that brush overhung the road on Long's side by two feet and that two cars could not pass each other at the point of the collision unless one of the cars had its tires in the ditch.

Diana Holmes was a passenger in the car being driven by Long. She testified that there was a great deal of brush growing up along the sides of the roads that overhung the oiled portion of the road one to two feet, depending on the location. Near the site of the accident the brush overhung the road by about two feet. Long slowed the vehicle as she approached the crest of the hill. She was driving so far over to the right that a tree limb tore Holmes' blouse. Holmes asked Long to move the vehicle toward the center of the road a little bit and Long moved about one foot toward the center of the road. Limbs were still striking the car after Long moved over.

Richard Hewitt is the fire chief for the City of Hillsboro and responded to the accident scene with the rescue unit. He testified that he estimated the width of the oiled portion of the roadway at the site of the accident to be approximately 10 to 12 feet. He did not actually measure the road, but stated that he is six feet tall and thought the road was approximately twice his length. He could not recall how wide the shoulder of the road or the ditch was, but testified that there was brush growing on the side of the ditch. He could not remember if any brush overhung the oiled portion of the road. He did testify that an ambulance passed his vehicle as it was parked on the roadway but did not remember if either vehicle was off the oiled portion of the roadway at the time.

Harold Whalen testified that he had lived on Huber Hill Road about one quarter mile west of the accident site for approximately 23 years. He described Huber Hill Road as a "mess." He testified that on or about the date of the accident, on the Watkins side of the road at the crest of the hill and as Watkins approached the crest, there was brush growing 8 to 10 feet tall. Limbs up to an inch thick hung out over the road approximately three to four feet. The shoulder was dirt and was only one foot wide. At the point of the collision on the Watkins side of the road, brush also hung over the road. On the Long side of the road at the point of collision weeds grew five to six feet tall and some hung out over the road. Approximately 10 to 12 months prior to the accident, Whalen had measured the oiled portion of the road at the crest of the hill to be 13 feet. The roadway had not changed in appearance between the time of the measurement and the time of the accident. At the time of the measurement Whalen and another local resident complained to Claude Friesland and the Hillsboro Township Board of Supervisors about the condition of the road and the overhanging brush but received no satisfaction.

Ray Allen Price testified that he is familiar with Huber Hill Road and that he responded to the scene of the accident with the rescue unit. He opined that the width of the oiled portion of the road at the scene and time of the accident was approximately 10 to 12 feet. He described the hill as steep, narrow and overgrown with brush on both sides of the road. At the point of the collision on the Long side of the road, brush grew approximately six to eight feet tall. On the Watkins side of the road at the crest of the hill, brush overhung the edge of the road a foot or two. At the point of collision on the Watkins side of the road, brush was 10 to 12 feet tall and overhung the road at a height of four or five feet above the road surface. Price testified that when he drove the same route as Watkins had been driving that day, he also had to drive over the imaginary center line in order to avoid brush striking his vehicle.

Russell Hughes was a local resident who had lived in the area 15 years. He had travelled Huber Hill Road at the site of the accident once or twice a day for approximately two years prior to the date of the accident. On the date of the accident, the oiled portion of the road at the crest of the hill was 10 to 12 feet wide. On the Watkins side at the crest of the hill there was a great deal of brush, some of which overhung the oiled portion of the road by two feet. He testified that the brush on the Watkins side of the hill had not been cut for at least 15 years. On the Long side of the crest of the hill, weeds overhung the road and had not been cut all summer preceding the accident. Hughes testified that he did not know if two ...


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