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06/17/97 EVELYN AND ALBERT STARR v. JOSEPH WARD

June 17, 1997

EVELYN AND ALBERT STARR, PLAINTIFFS-APPELLEES,
v.
JOSEPH WARD, DEFENDANT-APPELLANT,



Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois, No. 94--L--211. Honorable Donald C. Courson, Judge, Presiding.

Released for Publication July 29, 1997.

Present - Honorable Kent Slater, Justice, Honorable Peg Breslin, Justice, Honorable John F. Michela, Justice. Justice Slater delivered the opinion of the court. Breslin and Michela, J.j., concur.

The opinion of the court was delivered by: Slater

JUSTICE SLATER delivered the opinion of the court:

The present case arises out of a suit for damages filed by plaintiffs Evelyn and Albert Starr in the circuit court of Tazewell County. The plaintiffs' complaint originally named both Joseph Ward and the Illinois Department of Transportation (IDOT) as defendants, but IDOT was dropped from the suit by an agreement of the parties. Plaintiffs' alleged that the defendant, employee and agent of IDOT, was operating a riding mower/tractor vehicle in the center median of Interstate 74 when the mower hit a concrete boulder causing it to fly across the innermost lane of the interstate and hit the windshield of the plaintiffs' car causing injury to Evelyn Starr.

The complaint further alleged that defendant was negligent in one or more acts or omissions in that: the mower was not equipped with an adequate guard to prevent debris from flying out from under the mower and causing injuries; defendant failed to make an adequate inspection for objects that could be thrown out from under the mower prior to mowing; defendant mowed with the discharge chute pointed toward the highway where he knew or should have known that the discharge chute could throw objects into the roadway; and defendant drove the mower over a boulder which he should have seen and/or avoided.

Albert Starr also brought a claim of loss of consortium because his wife, Evelyn Starr, was depressed about her appearance and in constant pain from her injuries, and as a result, was unable to devote time and energy to her husband and perform the duties of marriage.

Defendant filed a motion to dismiss the complaint contending that the circuit court lacked subject matter jurisdiction over this action because sovereign immunity barred the action in circuit court. Additionally, defendant argued that he was immune from liability under the common law doctrine of public officials' immunity because he had been performing an official discretionary duty at the time of the incident. The circuit court denied defendant's motion to dismiss.

Following a bench trial, judgment was entered in favor of Evelyn Starr in the amount of $200,000, and in favor of Albert Starr in the amount of $50,000. In making his findings, the trial court noted that the case turned on an interpretation of section 14.11 of the Employee Safety Code (Safety Code). Illinois Department of Transportation, Employee Safety Code § 14.11. The court concluded that the requirement of the Safety Code to police the area to be mowed Prior to the first mowing of the season had not been fulfilled by the defendant.

Defendant appeals from the judgment of the circuit court contending: (1) that the circuit court lacked subject matter jurisdiction over this matter because it was a tort action against the State over which the Court of Claims had exclusive jurisdiction; (2) that this action was barred because he was entitled to public officials' immunity from liability; (3) that he owed motorists no duty to police on foot the area he was assigned to mow immediately prior to mowing; and (4) that Albert Starr was not entitled to damages for loss of consortium where damages were not proven.

Defendant first contends that the circuit court lacked subject matter jurisdiction over this matter because it is a tort action against the State of Illinois over which the Court of Claims has exclusive jurisdiction. Article XIII, section 4, of the Illinois Constitution of 1970 abolished sovereign immunity except as the General Assembly may provide by law. Ill. Const. 1970, art. XIII, § 4. Under this grant of authority, the legislature reinstated sovereign immunity in the circuit courts (745 ILCS 5/1 (West 1994)), but established the Court of Claims and invested it with exclusive jurisdiction to hear "all claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit." 705 ILCS 505/8(d) (West 1994).

The issue is whether plaintiffs' claims against defendant, an employee of the State of Illinois, are in reality claims against the State such that the Court of Claims has exclusive jurisdiction. Whether an action is a suit against the State or merely an action against an employee for his own individual acts of negligence depends upon the issues involved and the relief sought, rather than the formal designation of the parties. Healy v. Vaupel, 133 Ill. 2d 295, 549 N.E.2d 1240, 140 Ill. Dec. 368 (1990); Currie v. Lao, 148 Ill. 2d 151, 592 N.E.2d 977, 170 Ill. Dec. 297 (1992). In other words, the prohibition against making the State a party cannot be avoided by nominally making an action against an agent of the State when the real claim is against the State. Healy, 133 Ill. 2d 295, 549 N.E.2d 1240, 140 Ill. Dec. 368.

The supreme court has clearly instructed that, when determining whether a tort claim arising out of the alleged on-the-job negligence of a State employee is in reality a claim against the State, the proper inquiry is into the source of the duty the employee is charged with breaching in committing the allegedly negligent act. Currie, 148 Ill. 2d 151, 592 N.E.2d 977, 170 Ill. Dec. 297. The supreme court in Currie fully explicated this source-of-duty analysis by stating that:

"where the charged act of negligence arose out of the State employee's breach of a duty that is imposed on him solely by virtue of his State employment, sovereign immunity will bar maintenance of the action in circuit court. [Citations.] Conversely, where the employee is charged with breaching a duty imposed on him independently of his State employment, sovereign immunity will not attach and a negligence claim may be maintained against him in circuit court. [Citations.] In other words, where an employee of the State, although acting within the scope of his employment, is charged with breaching a duty that arose independently of his State ...


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