Starr v. Ward
Annotate this Case
No. 3--96--0569
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
EVELYN and ALBERT STARR, ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
) Tazewell County, Illinois,
Plaintiffs-Appellees, )
)
v. ) No. 94--L--211
)
JOSEPH WARD, ) Honorable
) Donald C. Courson,
Defendant-Appellant, ) Judge, Presiding.
________________________________________________________________
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 "[a]ll 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 (1990); Currie v.
Lao, 148 Ill. 2d 151, 592 N.E.2d 977 (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.
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. The supreme court in Currie fully explicated this source-
of-duty analysis by stating that:
"[w]here 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 employment, a suit against him will
not be shielded by sovereign immunity."
(Emphasis in original.) Currie, 148 Ill. 2d 151, 159, 592 N.E.2d 977, 980.
The court further explained that the rationale behind
extending sovereign immunity to State employees in certain
situations was to prevent parties from circumventing the State's
immunity by filing suit against a State employee rather than the
State where such suit would operate to control the actions of the
State. Currie, 148 Ill. 2d 151, 592 N.E.2d 977.
Therefore, the determination we must make is whether the
defendant owed a duty to plaintiffs that existed independently of
his employment by the State or whether the duty allegedly
breached by the defendant had no existence outside his State
employment. Healy, 133 Ill. 2d 295, 549 N.E.2d 1240; Currie, 148 Ill. 2d 151, 592 N.E.2d 977. In the present case, the trial
court found that defendant breached a duty to police the area for
debris prior to mowing. We are presented with two possible
sources of this duty. The first source of the duty to police for
debris prior to mowing, and that adopted by the trial court, was
section 14.11 of the Safety Code. Illinois Department of
Transportation, Employee Safety Code 14.11. The Safety Code
requires policing of the right-of-way at least prior to the first
mowing of the season to diminish the throwing of debris by rotary
mowers.
Clearly the Safety Code only regulates the conduct of IDOT
employees. Only IDOT employees are obligated to be familiar and
comply with Safety Code provisions. Therefore, the duty to
police the right-of-way prior to the first mowing of the season
pursuant to section 14.11 of the Safety Code, is one arising
solely by virtue of the defendant's employment as an IDOT highway
maintainer. Following the rationale set forth by the supreme
court in Currie, sovereign immunity would bar suit in circuit
court.
The second possible source of a duty to inspect stems from
common law negligence principles. Plaintiffs contend that
defendant's negligence arose from his breach of duty of care in
the ordinary operation of the tractor mower. According to
plaintiffs, this duty of care encompassed a duty to inspect for
debris prior to mowing which is the same obligation imposed on
all operators of mowers to those who may be injured by debris
thrown from the mower. As such, plaintiffs take the position
that defendant's duties arose independently of his State
employment, and therefore, the protection of sovereign immunity
was not available to him.
In support of their position, plaintiffs analogize the
instant case to those cases involving on-the-job negligence of
State employees arising out of the ordinary operation of motor
vehicles. Plaintiffs correctly point out that it is generally
recognized that claims based on the negligent operation of an
automobile by a State employee are outside the protection of
sovereign immunity. Bartholomew v. Crockett, 131 Ill. App. 3d
456, 475 N.E.2d 1035 (1985); Gocheff v. State Community College
of East St. Louis, 69 Ill. App. 3d 178, 386 N.E.2d 1141 (1979).
This general rule is premised upon the fact that a driver's duty
toward others exists independently of his State employment in
that negligence arising from the use of a motor vehicle is based
on the duty that every driver owes to all other drivers.
Bartholomew, 131 Ill. App. 3d 456, 475 N.E.2d 1035. Likewise,
plaintiffs contend that defendant's negligence arose out of his
ordinary operation of a mower and was based on the duty to
inspect prior to mowing imposed on all operators of mowers.
We first note that the plaintiffs' argument hinges upon the
existence of a common law duty owed by all operators of mowers to
police the right-of-way for debris prior to mowing. In order to
properly set forth a cause of action for negligence, the
plaintiffs must allege the existence of a duty owed by the
defendant to plaintiffs, a breach of that duty by the defendant,
and an injury to plaintiffs proximately caused by defendants
breach of the duty. Mount Zion State Bank & Trust v.
Consolidated Communications, 169 Ill. 2d 110, 660 N.E.2d 863
(1995).
There can be no recovery in tort for negligence unless
defendant breached a duty owed. "A duty is an obligation to
conform to a certain standard of conduct for the protection of
another against unreasonable risk of harm." O'Hara v. Holy Cross
Hospital, 137 Ill. 2d 332, 561 N.E.2d 18 (1990). In determining
whether a duty exists in a particular case, a court must weigh
the foreseeability of the injury, the likelihood of the injury,
the magnitude of the burden of guarding against it and the
consequences of placing the burden on the defendant. Gouge v.
Central Illinois Public Service Co., 144 Ill. 2d 535, 582 N.E.2d 108 (1991). The existence of a "duty of care" is a question of
law for the court. Jackson v. Hilton Hotels Corp., 277 Ill. App.
3d 457, 660 N.E.2d 222 (1995).
In support of the existence of a duty to inspect, plaintiffs
point to several cases in which the operation of a mower gave
rise to suits in negligence. (See Dugan v. Sears, Roebuck & Co.,
113 Ill. App. 3d 740, 454 N.E.2d 64 (1983) (The issue in this
products liability case was whether testimony regarding the
negligence of the mower operator in failing to comply with the
safety manual was a superseding cause preventing the liability of
the mower manufacturer); Wetherell v. Matson, 52 Ill. App. 3d
314, 367 N.E.2d 472 (1977) (This case involved injuries sustained
by a child whose foot was backed over by a riding lawn mower when
the operator did not look behind him as he reversed); Gulledge v.
Gulledge, 51 Ill. App. 3d 972, 367 N.E.2d 429 (1977) (The issue
in this case was whether parental immunity shielded grandparents
from liability in a personal injury suit arising from injury to
their grandchild caused by the ordinary negligence of the
grandparents when the child was injured by the blades of the
mower). We note however, that none of the cases cited by
plaintiffs involved a failure to police an area for debris prior
to mowing. While these cases may provide support for the
propositions that operators of lawnmowers have an obligation to
comply with the provisions in an owner's manual; that operators
of lawnmowers have an obligation to look behind them when backing
up; and finally, that grandparents have an obligation to
supervise their grandchild when he is in close proximity to a
lawnmower, these cases simply do not address the issue of whether
an operator of a mower has a duty to inspect an area for debris
prior to mowing. We conclude that these cases do not provide
support for the existence of a common law duty to inspect an area
for debris prior to mowing.
Nor are we inclined, after having balanced the factors of
foreseeability and likelihood of injury caused by the ejection of
debris from a mower against the extreme magnitude of the burden
placed upon the defendant were he required to inspect the area to
be mowed prior to mowing for debris not visible from his position
on the tractor prior to mowing, to impose such a duty on the
defendant in the instant case.
Further, even were a duty to exist independently of his
employment requiring defendant to inspect for debris prior to
mowing, it does not automatically follow therefrom that
plaintiffs' claims may be brought in circuit court. Instead, the
so called vehicle negligence cases set forth an exception to the
general rule that suits alleging the breach of a duty arising
independently from an individual's State employment may be
brought in circuit court. Namely, where an employee's operation
of a vehicle is so unique to his employment that a suit aimed at
his negligent driving could act to control the policies and
actions of the State, suit is barred in circuit court. Currie,
148 Ill. 2d 151, 592 N.E.2d 977; Campbell v. White, 207 Ill. App.
3d 541, 566 N.E.2d 47 (1991).
Defendant argues that the instant case is analogous to those
cases in which the defendant's manner of driving was so unique to
his employment that suits aimed at his negligence would operate
to control the activities and policies of the State. See
Campbell, 207 Ill. App. 3d 541, 566 N.E.2d 47 (officer involved
in a high speed chase when an accident occurred was held to be
driving in a manner unique to his employment); Kostopolous v.
Poladian, 257 Ill. App. 3d 95, 628 N.E.2d 628 (1993) (IDOT
employee who parked a back up vehicle behind a road crew was
found to be engaged in an activity unique to his employment).
It is undisputed in this case that defendant was acting
within the scope of his employment when the incident occurred.
Defendant had the responsibility to mow the median, an obligation
which was imposed only by virtue of his employment.
Specifically, it was a condition of defendant's employment that
he mow the median of Interstate 74 on the date of the incident.
Further, plaintiffs did not dispute testimony adduced by the
defendant that he performed his duties precisely as instructed by
his supervisors. Specifically, it was uncontested that it was
not the practice of IDOT's supervisors to require mower operators
to get off their tractors and inspect for debris prior to mowing
the area to which they were assigned. Rather, it was IDOT's
practice to inspect the roadways for debris once yearly. We
conclude that unlike an ordinary mower operator, defendant was
charged with mowing the highway median. Only a State employee
would have the responsibility or authority to mow this particular
area. The record revealed that defendant was performing his job
as instructed by his supervisors in accordance with their
interpretation of the Safety Code. As it was not IDOT's practice
to require its highway maintainers to dismount their mowers to
inspect the area for debris prior to mowing, the policies and
activities of the State with regard to its mowing procedures
would clearly be affected were plaintiffs permitted to bring suit
against one of its employees in circuit court for failure to
inspect his assigned area prior to mowing. We therefore conclude
that sovereign immunity barred plaintiffs suit in circuit court.
Having determined that the circuit court lacked subject matter
jurisdiction in this case, we need not reach the other issues in
this case.
For the reasons stated above, the judgment of the circuit
court is vacated.
Vacated.
BRESLIN and MICHELA, J.J., concur.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
EVELYN and ALBERT STARR, ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
) Tazewell County, Illinois,
Plaintiffs-Appellees, )
)
v. ) No. 94--L--211
)
JOSEPH WARD, ) Honorable
) Donald C. Courson,
Defendant-Appellant, ) Judge, Presiding.
________________________________________________________________
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 "[a]ll 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 (1990); Currie v.
Lao, 148 Ill. 2d 151, 592 N.E.2d 977 (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.
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. The supreme court in Currie fully explicated this source-
of-duty analysis by stating that:
"[w]here 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 employment, a suit against him will
not be shielded by sovereign immunity."
(Emphasis in original.) Currie, 148 Ill. 2d 151, 159, 592 N.E.2d 977, 980.
The court further explained that the rationale behind
extending sovereign immunity to State employees in certain
situations was to prevent parties from circumventing the State's
immunity by filing suit against a State employee rather than the
State where such suit would operate to control the actions of the
State. Currie, 148 Ill. 2d 151, 592 N.E.2d 977.
Therefore, the determination we must make is whether the
defendant owed a duty to plaintiffs that existed independently of
his employment by the State or whether the duty allegedly
breached by the defendant had no existence outside his State
employment. Healy, 133 Ill. 2d 295, 549 N.E.2d 1240; Currie, 148 Ill. 2d 151, 592 N.E.2d 977. In the present case, the trial
court found that defendant breached a duty to police the area for
debris prior to mowing. We are presented with two possible
sources of this duty. The first source of the duty to police for
debris prior to mowing, and that adopted by the trial court, was
section 14.11 of the Safety Code. Illinois Department of
Transportation, Employee Safety Code 14.11. The Safety Code
requires policing of the right-of-way at least prior to the first
mowing of the season to diminish the throwing of debris by rotary
mowers.
Clearly the Safety Code only regulates the conduct of IDOT
employees. Only IDOT employees are obligated to be familiar and
comply with Safety Code provisions. Therefore, the duty to
police the right-of-way prior to the first mowing of the season
pursuant to section 14.11 of the Safety Code, is one arising
solely by virtue of the defendant's employment as an IDOT highway
maintainer. Following the rationale set forth by the supreme
court in Currie, sovereign immunity would bar suit in circuit
court.
The second possible source of a duty to inspect stems from
common law negligence principles. Plaintiffs contend that
defendant's negligence arose from his breach of duty of care in
the ordinary operation of the tractor mower. According to
plaintiffs, this duty of care encompassed a duty to inspect for
debris prior to mowing which is the same obligation imposed on
all operators of mowers to those who may be injured by debris
thrown from the mower. As such, plaintiffs take the position
that defendant's duties arose independently of his State
employment, and therefore, the protection of sovereign immunity
was not available to him.
In support of their position, plaintiffs analogize the
instant case to those cases involving on-the-job negligence of
State employees arising out of the ordinary operation of motor
vehicles. Plaintiffs correctly point out that it is generally
recognized that claims based on the negligent operation of an
automobile by a State employee are outside the protection of
sovereign immunity. Bartholomew v. Crockett, 131 Ill. App. 3d
456, 475 N.E.2d 1035 (1985); Gocheff v. State Community College
of East St. Louis, 69 Ill. App. 3d 178, 386 N.E.2d 1141 (1979).
This general rule is premised upon the fact that a driver's duty
toward others exists independently of his State employment in
that negligence arising from the use of a motor vehicle is based
on the duty that every driver owes to all other drivers.
Bartholomew, 131 Ill. App. 3d 456, 475 N.E.2d 1035. Likewise,
plaintiffs contend that defendant's negligence arose out of his
ordinary operation of a mower and was based on the duty to
inspect prior to mowing imposed on all operators of mowers.
We first note that the plaintiffs' argument hinges upon the
existence of a common law duty owed by all operators of mowers to
police the right-of-way for debris prior to mowing. In order to
properly set forth a cause of action for negligence, the
plaintiffs must allege the existence of a duty owed by the
defendant to plaintiffs, a breach of that duty by the defendant,
and an injury to plaintiffs proximately caused by defendants
breach of the duty. Mount Zion State Bank & Trust v.
Consolidated Communications, 169 Ill. 2d 110, 660 N.E.2d 863
(1995).
There can be no recovery in tort for negligence unless
defendant breached a duty owed. "A duty is an obligation to
conform to a certain standard of conduct for the protection of
another against unreasonable risk of harm." O'Hara v. Holy Cross
Hospital, 137 Ill. 2d 332, 561 N.E.2d 18 (1990). In determining
whether a duty exists in a particular case, a court must weigh
the foreseeability of the injury, the likelihood of the injury,
the magnitude of the burden of guarding against it and the
consequences of placing the burden on the defendant. Gouge v.
Central Illinois Public Service Co., 144 Ill. 2d 535, 582 N.E.2d 108 (1991). The existence of a "duty of care" is a question of
law for the court. Jackson v. Hilton Hotels Corp., 277 Ill. App.
3d 457, 660 N.E.2d 222 (1995).
In support of the existence of a duty to inspect, plaintiffs
point to several cases in which the operation of a mower gave
rise to suits in negligence. (See Dugan v. Sears, Roebuck & Co.,
113 Ill. App. 3d 740, 454 N.E.2d 64 (1983) (The issue in this
products liability case was whether testimony regarding the
negligence of the mower operator in failing to comply with the
safety manual was a superseding cause preventing the liability of
the mower manufacturer); Wetherell v. Matson, 52 Ill. App. 3d
314, 367 N.E.2d 472 (1977) (This case involved injuries sustained
by a child whose foot was backed over by a riding lawn mower when
the operator did not look behind him as he reversed); Gulledge v.
Gulledge, 51 Ill. App. 3d 972, 367 N.E.2d 429 (1977) (The issue
in this case was whether parental immunity shielded grandparents
from liability in a personal injury suit arising from injury to
their grandchild caused by the ordinary negligence of the
grandparents when the child was injured by the blades of the
mower). We note however, that none of the cases cited by
plaintiffs involved a failure to police an area for debris prior
to mowing. While these cases may provide support for the
propositions that operators of lawnmowers have an obligation to
comply with the provisions in an owner's manual; that operators
of lawnmowers have an obligation to look behind them when backing
up; and finally, that grandparents have an obligation to
supervise their grandchild when he is in close proximity to a
lawnmower, these cases simply do not address the issue of whether
an operator of a mower has a duty to inspect an area for debris
prior to mowing. We conclude that these cases do not provide
support for the existence of a common law duty to inspect an area
for debris prior to mowing.
Nor are we inclined, after having balanced the factors of
foreseeability and likelihood of injury caused by the ejection of
debris from a mower against the extreme magnitude of the burden
placed upon the defendant were he required to inspect the area to
be mowed prior to mowing for debris not visible from his position
on the tractor prior to mowing, to impose such a duty on the
defendant in the instant case.
Further, even were a duty to exist independently of his
employment requiring defendant to inspect for debris prior to
mowing, it does not automatically follow therefrom that
plaintiffs' claims may be brought in circuit court. Instead, the
so called vehicle negligence cases set forth an exception to the
general rule that suits alleging the breach of a duty arising
independently from an individual's State employment may be
brought in circuit court. Namely, where an employee's operation
of a vehicle is so unique to his employment that a suit aimed at
his negligent driving could act to control the policies and
actions of the State, suit is barred in circuit court. Currie,
148 Ill. 2d 151, 592 N.E.2d 977; Campbell v. White, 207 Ill. App.
3d 541, 566 N.E.2d 47 (1991).
Defendant argues that the instant case is analogous to those
cases in which the defendant's manner of driving was so unique to
his employment that suits aimed at his negligence would operate
to control the activities and policies of the State. See
Campbell, 207 Ill. App. 3d 541, 566 N.E.2d 47 (officer involved
in a high speed chase when an accident occurred was held to be
driving in a manner unique to his employment); Kostopolous v.
Poladian, 257 Ill. App. 3d 95, 628 N.E.2d 628 (1993) (IDOT
employee who parked a back up vehicle behind a road crew was
found to be engaged in an activity unique to his employment).
It is undisputed in this case that defendant was acting
within the scope of his employment when the incident occurred.
Defendant had the responsibility to mow the median, an obligation
which was imposed only by virtue of his employment.
Specifically, it was a condition of defendant's employment that
he mow the median of Interstate 74 on the date of the incident.
Further, plaintiffs did not dispute testimony adduced by the
defendant that he performed his duties precisely as instructed by
his supervisors. Specifically, it was uncontested that it was
not the practice of IDOT's supervisors to require mower operators
to get off their tractors and inspect for debris prior to mowing
the area to which they were assigned. Rather, it was IDOT's
practice to inspect the roadways for debris once yearly. We
conclude that unlike an ordinary mower operator, defendant was
charged with mowing the highway median. Only a State employee
would have the responsibility or authority to mow this particular
area. The record revealed that defendant was performing his job
as instructed by his supervisors in accordance with their
interpretation of the Safety Code. As it was not IDOT's practice
to require its highway maintainers to dismount their mowers to
inspect the area for debris prior to mowing, the policies and
activities of the State with regard to its mowing procedures
would clearly be affected were plaintiffs permitted to bring suit
against one of its employees in circuit court for failure to
inspect his assigned area prior to mowing. We therefore conclude
that sovereign immunity barred plaintiffs suit in circuit court.
Having determined that the circuit court lacked subject matter
jurisdiction in this case, we need not reach the other issues in
this case.
For the reasons stated above, the judgment of the circuit
court is vacated.
Vacated.
BRESLIN and MICHELA, J.J., concur.
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