MEMORANDUM OPINION AND ORDER
Honorable Edmond E. Chang, United States District Judge
On December 15, 2009, Michael Lomec was walking on the street near an intersection in Chicago when he was struck by a car driven by David Forero, a Special Agent with the Federal Bureau of Investigation.
I. Factual Background
A. Evidence Offered at Trial
The following evidence was offered at trial, and is undisputed except where noted. The accident occurred on the afternoon of December 15, 2009, at the intersection of Lake Street and Francisco Avenue on the west side of Chicago, Illinois. R. 89, Parties' Proposed Pretrial Order at 2-3 (Stipulations 1 and 2). Francisco Avenue is a one-way northbound street. Lake Street consists of two lanes, one for each direction of traffic, and runs east-west. In that location, Lake Street sits directly underneath the Chicago Transit Authority "El" tracks. Def.'s Exh. 8; Pl.'s Exh. 1 (eastbound view of intersection); Pl.'s Exh. 2 (westbound view). Here are two photos of the intersection, the first looking east, the second looking west:
As the photos show, the "El" track beams straddle the two lanes and rest on the outer edge of both lanes. Def.'s Exh. 8; Pl.'s Exh. 1. Although Lake Street is only two lanes wide, the street extends several feet past the outer edges of those two lanes to the north and south. Pl.'s Exh. 1; Pl.'s Exh. 2. This extended roadway is not covered by the "El" tracks and is wide enough for cars to drive and park on. Pl.'s Exh. 1; Pl.'s Exh. 2. There are no traffic signals or signs on Lake Street at this intersection. Pl.'s Exh. 1; Pl.'s Exh. 2. Nor is there a marked crosswalk on the west side of the intersection across Lake Street. Pl.'s Exh. 1; Def.'s Exh. 8.
On the day of the accident, Lomec had taken the "El" train to the California stop, which is located at the intersection of Lake Street and California Avenue (two blocks
At around 2:48 p.m., Lomec started to walk northbound across Lake Street. Parties' Proposed Pretrial Order at 3 (Stipulation 2); Lomec Dep. 25:14-19, 27:18-23, 28:13-17. He claims he looked both ways for oncoming traffic, but did not see any cars. Lomec Dep. 27:24-25, 28:1-9, 29:1-6, 30:18-20. According to Lomec, he then took several steps (somewhere between five and eight) into the intersection. Id. 28:11-25. Forero argues that Lomec did not cross at the intersection, and in fact walked into Forero's car. At Lomec's deposition, Lomec testified that he had just passed one of the "El" beams and was stepping forward with his right foot into the eastbound traffic lane when he collided with Forero. Id. 28:13-25, 31:1-8; Pl.'s Exh. 1 (photo with "X" marking where Lomec contends accident occurred). Lomec testified that Forero's tire rolled over Lomec's right foot, causing Lomec to fall to the ground. Lomec Dep. 31:1-8. Lomec's face, chest, and hands all hit the ground, and Lomec landed about five to six feet away. Id. Forero did not see Lomec before or during the collision. The first time Forero saw Lomec was after the collision, when Lomec was already on the ground. Trial Tr. (Morning) 42:13-22, 51:15-52:1.
After the accident, Forero immediately pulled over, got out, and checked on Lomec. Id. 52:6-53:15. Forero did not see any blood, did not notice Lomec hobbling, and did not find Lomec to be impaired in any way. Id. 56:5-12. Forero asked Lomec if he needed any medical treatment. Id. 53:9-15. Lomec said he was fine. Id. 57:3-9; Lomec Dep. 34:17-25. Forero never identified himself as an F.B.I. agent, but Forero did tell Lomec that he would need to report the accident because he was driving a company car. Lomec Dep. 35:5-9; Trial Tr. (Morning) 56:13-21, 57:25-58:2. Forero then asked Lomec for some identifying information. According to Forero, Lomec was initially hesitant to share any information with Forero, but after several minutes of "cajoling," agreed to do so. Trial Tr. (Morning) 57:10-13, 60:20-25. (Lomec did not mention any hesitancy on his part related to exchanging information, see generally Lomec Dep., but he was not directly asked during the deposition.) Forero gathered the following information from Lomec: Lomec's name, address, date-of-birth, two telephone numbers, and identification card number. Forero wrote this information down on a piece of paper at the accident site, along with the date ("12/15/09"), time ("2:48 pm"), intersection ("Lake/Francisco"), and make, model, and license plate number of his vehicle ("231
After Lomec left, Forero moved his car onto Francisco Avenue and called his squad secretary, Peg Kelley, to let her know that he had been in an accident. Trial Tr. (Morning) 70:1-8; Pl.'s Exh. 4, Nextel Invoice at 1. Forero made this call at 2:52 p.m.
Forero then left the accident site and went to the police station. Trial Tr. (Morning) 81:11-13. He spoke to an on-duty officer and told the officer about the accident, id. 82:1-3; that officer then prepared an Illinois Traffic Crash Report. Pl.'s Exh. 18, 12/15/09 Illinois Traffic Crash Report. Forero was familiar with these crash reports from his time with the Chicago Police Department. Before becoming an F.B.I. agent, Forero served as a Chicago Police Officer for six years (from 1998 to 2004). Trial Tr. (Morning) 27:24-28:3, 29:20-25. Forero estimated that, when he was a police officer, he probably filled out around 50 to 100 of these traffic reports. Id. 28:24-29:5. He also knew that it was important to be as accurate as possible in these reports. Id. 30:10-14. This December 15 report — the date of the accident — lists the accident site as "2900 W Lake," which corresponds to the intersection (as opposed to an address west of the intersection). 12/15/09 Illinois Traffic Crash Report. Forero could not remember exactly what he told the officer about the location of the accident. Trial Tr. (Morning) 84:13-19, 87:12-13. The report describes the accident as follows: "Unit #2 (pedestrian) walked into street and was struck by Unit #1. No injuries reported. Pedestrian refused any service by driver of Unit #1." 12/15/09 Illinois Traffic Crash Report.
The next day, Forero updated his handwritten note from the day of the accident to include the following additional information: that Lomec "refused medical treatment," that Lomec "said [he] was late for work," that he "[d]id not want to wait," and that he "wasn't going to sue/hoped I [Forero] would not sue him." Def.'s Exh. 6, Forero Handwritten Note; Trial Tr. (Morning) 65:1-66:8. That same day, Forero also personally filled out three reports: (1) an Illinois Motorist Report, Def.'s Exh. 1, 12/16/09 Illinois Motorist Report, (2) a motor vehicle accident report, Def.'s Exh. 2, 12/16/09 Federal Motor Vehicle Accident Report, and (3) an internal F.B.I. Report, Def.'s Exh. 3, 12/16/09 F.B.I. Report;
Def.'s Exh. 1, 12/16/09 Illinois Motorist Report at 2. Forero drew a diagram depicting this information as well. Id. This report, unlike the Illinois Traffic Crash Report from the day before, lists the accident address as "2903 West (Lake St)," a location slightly west of the Lake and Francisco intersection, as opposed to "2900 West Lake," which falls right at the intersection.
Forero's motor vehicle accident report includes a similar description and diagram. Def.'s Exh. 2, 12/16/09 Federal Motor Vehicle Accident Report. In that report, Forero wrote:
Id. at 2.
Forero's internal F.B.I. report contained more detail of the accident from his perspective. In that report, Forero describes the accident as follows:
In addition to the testimony and exhibits discussed above, the government also elicited testimony from F.B.I. Special Agent Keith Sam, one of Forero's colleagues. Sam first learned of the accident shortly after it happened, when he received a phone call from Forero. Trial Tr. (Afternoon) 144:6-9. Sam stated that, the day after the accident, Forero asked him to return a call he received from Lomec.
Def.'s Exh. 3, 12/16/09 F.B.I. Report at 2; see also Trial Tr. (Afternoon) 150:18-21.
Finally, the Court allowed the government to introduce into evidence some of Lomec's medical records from Hines VA Hospital and Jesse Brown VA Hospital. Def.'s Exhs. 10-21, 26-27. These records contain physician and medical staff notes discussing Lomec's prior drug use and his mental health in the days following the accident. The records include a drug test from two days after the accident, which showed detectable traces of cocaine and opiates in Lomec's system. Def.'s Exh. 12, 12/17/09 Drug Test Results. The records also state that Lomec suffered from "[c]ocaine abuse," "[a]lcohol abuse," "[p]olysubstance dependence," and "prescription narcotic abuse." E.g., Def.'s Exh. 11 at 4 (Hines VA — 000895; 12/17/09 Emergency Department Triage Note); id. at 24 (Hines VA — 000915; 12/17/09 Physician Emergency Dept E & M Note); Def.'s Exh. 13 at 3 (Hines VA — 000884; 12/17/09 Suicide Risk Assessment Note). They also show that three days after the accident, Lomec admitted to "currently using cocaine 3-4x per month" and to "relaps[ing] several weeks ago." Def.'s Exh. 15 at 2 (Hines VA — 000856; 12/18/09 Mental Health Treatment Plan Note); see also Def.'s Exh. 20 at 2 (Hines VA — 000848; 12/19/09 Social Work Initial Evaluation Note) ("[Patient] also abusing cocaine and alcohol regularly").
The medical records are also littered with comments about Lomec's mental health, including that he was having "suicidal ideations" in the days immediately following the accident. E.g., Def.'s Exh. 10 at 1 (Hines VA — 000922; 12/17/09 Mental Health Nursing Note) ("[Patient] came to Hines VA due to having suicide ideations with plan of overdosing on drugs."); Def.'s Exh. 15 at 1 (Hines VA — 000855; 12/18/09 Mental Health Treatment Plan Note) ("[Patient is] currently endorsing depressive symptoms and strong suicidal ideations."). One of the records says that Lomec's
At trial, the government relied on these records to argue that Lomec's mental state was clearly disrupted at the time of the accident and that Lomec could not have been exercising a reasonable degree of care when crossing the street. Lomec, for his part, testified that he was not under the influence of any drugs or alcohol at the time of the accident. Lomec Dep. 32:14-23 ("Q.... [W]ere you under the influence of any drugs?/A. No./Q. Had you drank any alcohol in the 48 hours prior to this accident?/A. Absolutely not./Q. Had you consumed any drugs, prescription or otherwise, in the 48 hours before this happened?/A. No.").
B. Findings of Fact
While the parties agree that the accident occurred near the intersection of Lake Street and Francisco Avenue, they disagree on the precise location. Forero asserts that the accident occurred several feet west of the intersection, Pl.'s Exh. 1 (photograph of intersection; circle mark indicates where Forero states he first saw Lomec, who was lying on the ground), whereas Lomec asserts that it occurred at the intersection, id. ("X" mark indicates where Lomec contends the accident occurred); Lomec Dep. 27:10-17. For convenience's sake, here is Exhibit 1 again, which shows the dueling locations:
On consideration of the evidence, the Court credits Lomec's version and finds that Lomec has proven, by a preponderance of the evidence, that he was in the intersection at the time of the collision. In addition to Lomec's own testimony, there is other evidence to support this finding. First, it would be natural for Lomec — and any other pedestrian trying to get across Lake Street — to cross specifically at the intersection itself. On both sides of the intersection, the sidewalk ramps downward with raised bumps alerting pedestrians that they are approaching the street. These ramps can be seen in the photos of the intersection, Pl.'s Exh. 1, Def.'s Exh. 5 (second photo), and indeed Lomec testified about them too, Lomec Dep. 30:14-17. Under Illinois law, the path from sidewalk-to-sidewalk is deemed to be a crosswalk, where pedestrians have the right of way, even though the crosswalk is not marked with painted lines. 625 ILCS 5/1-113(b). This legal principle is discussed more in the Conclusions of Law section; for now, there is also a fact-finding purpose to the fact that there is a crosswalk there — the ramps are obvious invitations to cross at the intersection, and thus the crosswalk offers some modest evidentiary support that pedestrians would naturally use that intersection to cross.
Another set of facts supporting this finding is that Forero's day-of statements put the location of the accident at the intersection. Forero's handwritten note from December 15 says, "Lake/Francisco." Def.'s Exh. 6. And right after the accident, Forero went to a nearby Chicago police station to report the accident; the Illinois Traffic Crash Report generated from Forero's interview at the station puts the accident at 2900 W. Lake, which is the intersection. Pl.'s Exh. 18, 12/15/09 Illinois Traffic Crash Report. Although Forero does not remember precisely what he told the officer, he conceded at trial that he apparently told the officer that the accident happened at 2900 West Lake (or the intersection of Lake and Francisco) because that was what the Traffic Crash Report stated. Trial Tr. (Morning) 87:12-13. Forero understood the importance of accuracy in these crash reports, because he himself had filled out more than 50 of them when he served as a Chicago Police Officer before joining the FBI. Id. 28:24-29:5. So, in contrast to Forero's day-after statements, the
The government, for its part, argues that the injuries that Lomec sustained are inconsistent with him being in the cross-walk at the time of the collision. The government asserts that the only way Lomec's right foot and ankle could have been injured in the collision is if Lomec was crossing Lake Street from the south to the north on a westbound angle. But there is no particular reason why this would be so. During his deposition, Lomec explained how the accident occurred. He stated that he was hit by Forero's car as he was taking a step forward with his right foot. Lomec Dep. 31:1-23. According to Lomec, this caused the car to roll over his right foot, which in turn caused Lomec to fall to the ground. Id. That is a perfectly plausible description of the accident and the injury. More likely than not, the crosswalk is where the accident happened.
Making a finding as to the location of the accident still leaves open the ultimate question: how did the accident happen? On consideration of all the evidence, the Court finds that the accident could not have happened exactly how either Lomec or Forero say it happened. Both say they were paying attention: Lomec testified that he did look for traffic before crossing, and saw no cars. Forero likewise testified that he was closely watching out for pedestrians, and saw no one. But based on the clear visibility conditions on the street and the configuration of Lake Street, if Lomec and Forero really had been paying attention, then they would have seen each other before the accident. It was daytime and not raining; nothing about the weather blocked Lomec's or Forero's view. Def.'s Exh. 2, 12/16/09 Federal Motor Vehicle Accident Report at 2. There were no parked cars on Lake anywhere near (or even distant from) the intersection, so no other traffic blocked Lomec's or Forero's view. Forero argues that one of the El track beams on Lake Street must have concealed Lomec. But the physical layout of the street and the El beams refute this argument. Even if an El track beam did block Lomec from Forero's view for a brief moment, the beams are not wide enough to have blocked Lomec from Forero's view for the entirety of Forero's approach to the intersection. See Pl.'s Exh. 1 (photograph of intersection). Indeed, Lomec had to cross several feet of roadway just to reach Lake Street's two primary traffic lanes, id., which both sides agree is where the accident occurred. And Lake Street is even wider than the usual city street, because it is wide enough to allow cars to drive and park on both sides of the street. Id. So Lomec had to take at least five to eight steps before he was hit. Id.; Lomec Dep. 28:11-25. Given Lomec's larger stature, the size of the El track beams, and the fact that Lomec was walking just before the accident, it is simply not credible that one of the El track beams blocked Forero's view of Lomec. See Pl.'s Exh. 1; Def.'s Exh. 7. All in all, nothing blocked Lomec's or Forero's view, so the only way the accident happened is that both of them did not pay attention when entering the intersection.
II. Conclusions of Law
Lomec seeks relief under the Federal Tort Claims Act, 28 U.S.C. § 2674, for Forero's alleged negligence in hitting him. R. 1, Compl. The Federal Tort Claims Act "is a limited waiver of the United States' sovereign immunity." Luna v. United States, 454 F.3d 631, 634 (7th Cir.2006). It renders the federal government liable for those acts or omissions of its employees that would be unintentional torts in the state in which they occurred had they been committed by someone other than a federal employee. Id.; Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); 28 U.S.C. §§ 1346(b)(1), 2674. See also Furry v. United States, 712 F.3d 988, 992 (7th Cir. 2013) ("In the FTCA, ... Congress waived the United States's sovereign immunity for suits brought by persons injured by the negligence of federal employees acting within the scope of their employment."). An action brought under the Federal Tort Claims Act is governed by "the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b); Luna, 454 F.3d at 634. In this case, the collision occurred in Illinois, so Illinois law governs.
Under Illinois law, Lomec may recover if he can show (1) the government, through Forero, owed him a duty, (2) Forero breached that duty, and (3) Forero's breach was the proximate cause of his injuries. First Springfield Bank & Trust v. Galman, 188 Ill.2d 252, 242 Ill.Dec. 113, 720 N.E.2d 1068, 1071 (1999); Barnett v. Ludwig and Co., 355 Ill.Dec. 840, 960 N.E.2d 722, 730 (Ill.App.Ct.2011); Furry, 712 F.3d at 992. Lomec must prove each of these elements by a preponderance of the evidence. Nolan v. Weil-McLain, 233 Ill.2d 416, 331 Ill.Dec. 140, 910 N.E.2d 549, 562 (2009); Leonardi v. Loyola Univ. of Chi., 168 Ill.2d 83, 212 Ill.Dec. 968, 658 N.E.2d 450, 455 (1995). If Forero acted negligently, then the Court must also consider whether Lomec acted negligently, because Illinois limits a plaintiff's recovery in the event he or she is contributorily negligent. 735 ILCS 5/2-1116(c). If Lomec is partially responsible for causing this accident, then any damage award he may receive must be reduced in proportion to the percentage of fault attributable to him. Id. If Lomec is more than 50 percent at fault for the accident, then he cannot recover anything, even if Forero was also negligent. Id.; Powell v. Dean Foods Co., 379 Ill.Dec. 837, 7 N.E.3d 675, 708-09 (Ill. App.Ct.2013); Country Mut. Ins. Co. v. Sunbeam Prods., Inc., 500 F.Supp.2d 986, 989 (N.D.Ill.2007).
Lomec asserts that Forero acted negligently when he struck Lomec with his car, because Forero failed to reduce his speed as he approached an intersection,
Skipping to the third element, namely, proximate cause, the evidence does show, by a preponderance, that the collision caused Lomec's right foot injury. Lomec testified in his deposition that his right foot was injured in the accident. Lomec Dep. 31:1-23, 39:11-24. Lomec's medical records corroborate this. The medical records repeatedly reference Lomec having an ankle and foot injury in the days immediately following the accident. E.g., Def.'s Exh. 11 at 25 (Hines VA — 000916; 12/17/09 Physician Emergency Dept E & M Note) (noting "Rt foot and ankle with ecchymosis
This then leaves the issue of breach of duty. Lomec asserts that Forero was negligent because he failed to see Lomec crossing the street, and thus breached his duty to look out for pedestrians and to avoid them. As explained in the Findings of Fact, Lomec was in the crosswalk at the time of the accident and both Forero and Lomec failed to be on the lookout for the other. Turning first to Forero's negligence, if Forero had been paying attention and keeping a proper lookout for pedestrians as he approached Lake and Francisco, as a reasonably prudent driver would have when approaching an intersection, then Forero would have seen Lomec. Because Forero did not, he was negligent.
This conclusion is bolstered by the fact that Lomec had the superior right-of-way at the time. In Illinois, a pedestrian in a crosswalk is considered to have the right-of-way, so cars must yield to the pedestrian. 625 ILCS 5/11-1002(a). By contrast, if a pedestrian is crossing outside of a crosswalk, then it is the pedestrian who must yield to the cars in the roadway. Id. 5/11-1003(a); Palausky v. Landers, 67 Ill.App.3d 985, 24 Ill.Dec. 610, 385 N.E.2d 751, 752 (1978) ("pedestrian who is outside a crosswalk has the specific duty of yielding the right of way to oncoming traffic"). As noted earlier in the Opinion, Illinois law defines a "crosswalk" to cover both marked and unmarked crosswalks. A marked crosswalk is defined as "[a]ny portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by lines or other markings on the surface." 625 ILCS 5/1-113(b). There is no marked crosswalk on Lake Street. There is, however, an unmarked crosswalk. An unmarked crosswalk is defined as "[t]hat part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or, in the absence of curbs, from the edges of the traversable roadway." Id. 5/1-113(a). The evidence shows, and it is undisputed, that both Lake Street and Francisco Avenue have sidewalks for pedestrians. Pl.'s Exh. 1 (photograph of intersection); Pl.'s Exh. 2 (same); Def.'s Exh. 7 (same). Those sidewalks run directly into the intersection. Pl.'s Exh. 1; Pl.'s Exh. 2. The curbs at all crossings are also lowered and there are warning domes (the raised bumps on the sidewalk) to alert pedestrians that they are approaching the intersection. Pl.'s Exh. 1; Def.'s Exh. 5, Five Photographs of Scene at 2. This evidence shows that a crosswalk, albeit an unmarked one, runs across Lake Street on the west side of the intersection. Lomec therefore had the superior right-of-way under Illinois law.
Because Lomec was using the crosswalk, Forero had a specific duty to yield to Lomec. 625 ILCS 5/11-1002 ("When traffic control signals are not in place or not in operation the driver of a vehicle shall stop and yield the right-of-way to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling...."). When Forero approached the intersection and the crosswalk, Forero's "right to move forward was contingent upon the absence of a superior right-of-way in someone else." Fox v. Calhoun, 34 Ill.App.3d 336, 340 N.E.2d 125, 127 (1975). In this case, someone else did have a superior right-of-way: Lomec, a pedestrian in the crosswalk. The fact that the crosswalk was unmarked does not lessen the applicable duty of care. Either way, Forero was required to yield under Illinois law. See
For its part, the government argues that Forero cannot be found negligent because Lomec needed more than just his deposition testimony to prove the claim. Citing to Furry v. United States, 712 F.3d 988 (7th Cir.2013), the government asserts that Lomec was required to provide expert testimony (something he did not do) to show why his account of the accident is more accurate than another scenario in which Forero did not breach his duty of care. But this is not a case where expert reconstruction is necessary, and Lomec's case is distinguishable from Furry.
In Furry, the plaintiffs' car collided with a United States postal truck. 712 F.3d at 989-90. The plaintiffs sued the postal employee, alleging that he caused the accident by negligently pulling out of a parking spot. Id. at 989. The plaintiffs, however, admitted that they did not see the truck before the accident or observe the collision, so they could only base their claim on the fact that they felt an impact. Id. at 990-91. The postal employee, who failed to appear at trial, testified in a prior deposition (and in contrast to the plaintiffs' testimony) that his truck was stationary at the time of the collision. Id. at 991. Although the district court credited the plaintiffs' testimony that their car collided with the truck, the court noted that because the plaintiffs did not see the truck or collision, their belief that the postal employee initiated the collision was merely speculative. Id. at 991-92. Because other scenarios were also plausible in which the postal employee did not breach his duty of care, the district court entered judgment for the postal employee. Id. at 992. On appeal, the Seventh Circuit affirmed, explaining that "[m]ere speculation" cannot prove breach and noting that plaintiffs "offered no expert testimony on accident reconstruction to explain why their account was likely more accurate than another scenario in which [the postal employee] did not breach his duty of ordinary care." Id. at 993.
But the Seventh Circuit did not hold in Furry that expert reconstruction is always necessary in order to prove breach of the duty of care, as the government seems to suggest. Rather, the Seventh Circuit explained that expert reconstruction is necessary when several plausible scenarios exist to explain how an accident occurred and the plaintiff can only speculate as to which is correct. That is not this case, however. Here, unlike in Furry, Lomec actually testified as to where he was when Forero struck him. And given the road and visibility conditions, Forero's concession that he did not see Lomec means that Forero was not paying enough attention to satisfy the duty of ordinary care. So Lomec does not need to speculate as to which scenario most likely occurred (as the plaintiffs in Furry had to); he can and did testify about how the accident occurred based on his own first-hand observations, including that he was in the crosswalk. Lomec's account is actual, concrete testimony, and not just mere speculation.
Unlike the airline employee in Mulloy, however, Forero could easily have anticipated that a pedestrian would be crossing the street at an intersection, and could have also slowed down to properly ensure that no pedestrians or other dangers were present. Indeed, he had a duty to do just that. 625 ILCS 5/11-1002 (when a pedestrian is in a crosswalk, "the driver of a vehicle shall stop and yield the right-of-way to a pedestrian" (emphasis added)). His failure to maintain a proper lookout and to yield to pedestrians constitutes negligence. No additional evidence or expert testimony is required to show that Forero "could have perceived a danger" and "availed [himself] of reasonable steps to avoid it." Mulloy, 295 Ill.Dec. 54, 832 N.E.2d at 213. Lomec was struck by a moving vehicle, not by some attachment to a trailer that could have become detached for any number of reasons. Lomec was not required to provide any expert testimony to prevail on his claim.
This then leaves the issue of Lomec's own negligence. The government argues that Lomec was negligent because he failed to exercise reasonable care for his own safety when crossing Lake Street. As discussed in the Findings of Fact, there is evidence in the record to support the government's contention. As an initial matter, neither party disputes that pedestrians have a duty to conduct themselves in a manner that is "free from contributory negligence." Zeller, 179 N.E.2d at 37; see also Albaugh v. Cooley, 87 Ill.2d 241, 57 Ill.Dec. 720, 429 N.E.2d 837, 840 (1981); Patel v. Brown Mach. Co., 264 Ill.App.3d 1039, 201 Ill.Dec. 902, 637 N.E.2d 491, 500 (1994). And even though Lomec was crossing in a crosswalk, which gave him the superior right-of-way, that fact does not automatically absolve him of his own responsibility to exercise care. See Moran v. Gatz, 390 Ill. 478, 62 N.E.2d 443, 485-86 (1945). Even when crossing in a crosswalk, a pedestrian must still exercise due care for his own safety. Albaugh, 57 Ill.Dec. 720, 429 N.E.2d at 840; Malpica v. Sebastian, 99 Ill.App.3d 346, 54 Ill.Dec. 812, 425 N.E.2d 1029, 1031 (1981); Klimovich v. Crutcher, 57 Ill.App.2d 444, 206 N.E.2d 723, 726 (1965); Sheehan v. United States, 2003 WL 21938610, at *13 (N.D.Ill. Aug. 11, 2003). Indeed, under Illinois law, a pedestrian has a duty not to "suddenly leave a curb or other place of safety and walk or run into the path of a moving vehicle which is so close as to constitute an
Here, Lomec states that he looked both ways before entering the intersection, but that he did not see any cars. Lomec Dep. 27:24-25, 28:1-9, 30:18-23. As discussed earlier, this testimony is not plausible. If Lomec had looked for oncoming traffic as he claims, then he would have seen Forero's car (just as Forero would have seen him), even if in the distance. With Forero going only 15 to 20 miles-per-hour, there is no way Forero could have snuck up on Lomec. Had he looked, Lomec would have seen Forero's car approaching. See Greenwald v. Balt. & O.R. Co., 332 Ill. 627, 164 N.E. 142, 144 (1928) ("the law will not tolerate the absurdity of allowing a person to testify that he looked but did not see [what was there to be seen]"). The fact that Lomec failed to observe Forero's car until the time of the collision means Lomec did not look for oncoming traffic before entering the intersection and did not exercise reasonable care for his own safety. The Court concludes that Lomec's negligence renders him fifty percent (50%) responsible for this collision — both sides are equally responsible for the accident.
The government points to other pieces of evidence, which it argues demonstrates that Lomec was both negligent and at greater fault for the accident than Forero. But none of this evidence persuades the Court that Lomec was any more than fifty percent at fault. First, the government points to Lomec's medical records, and in particular, those records discussing his mental health status around the time of the accident and his prior drug use. The government contends that these records show that Lomec could not have been in a proper state of mind at the time of the accident, and therefore, could not have exercised reasonable care when crossing the street. It is true that Lomec was admitted to Hines VA Hospital in the days after the accident for suicidal ideations, which does suggest that Lomec was dealing with some mental health problems around the time of the accident. E.g., Def.'s Exh. 10 at 1 (Hines VA — 000922; 12/17/09 Mental Health Nursing Note) ("[Patient] came to Hines VA due to having suicide ideations with plan of overdosing on drugs."); Def.'s Exh. 15 at 6 (Hines VA — 000860; 12/18/09 Student Note). But there is no direct evidence that Lomec had suicidal ideations on the day of the accident, or that he wanted to commit suicide-by-traffic on that day; none of the records produced show that Lomec was considering suicide on the day of the accident, they only refer to the days following the accident. The government further notes that Lomec's mental health care providers noted just a few days after the accident that Lomec was depressed, "easily distracted" and exercising "[p]oor judgment." E.g., Def.'s Exh. 10 at 1-2 (Hines VA — 000922-923; 12/17/09 Mental Health Nursing Note); Def.'s Exh. 14 at 1 (Hines VA — 000887; 12/17/09 H & P Note); Def.'s Exh. 20 at 6-7 (Hines VA — 000852-853; 12/19/09 Social Work Initial Evaluation Note). But the government fails to elaborate on this, or to shed any light on what these terms might mean — concretely — in the context of mental health conditions or how they might relate to Lomec's state of mind on the day of the accident. What's more, Forero testified that he and Lomec had a polite and amicable conversation after the collision, where Forero did not detect any mental health instability in Lomec. Trial Tr. (Morning) 67:2-68:13. Lomec also testified that after the collision he told Forero, "I am happy that I am alive. Thank you for not killing me." Lomec Dep. 34:19-25. If Lomec had been considering suicide or in a severely depressed state of mind at the time of the accident, then he probably would not have had an amicable conversation right after the collision. These mental health records do not prove anything important.
As a final note, two other pieces of evidence offered by the government do not alter the conclusion of negligence against both parties. At trial, Agent Sam testified that he spoke with Lomec over the phone the day after the accident. Trial Tr. (Afternoon) 145:7-10, 146:11-12. Sam testified that he shared everything he learned on that call with Forero, including that Lomec said, "he [Lomec] obviously wasn't looking either when it (accident) happened." Def.'s Exh. 3, 12/16/09 F.B.I. Report at 2 (emphasis added); Trial Tr. (Afternoon) 146:14-16. Although this information suggests that Lomec believed he too was at fault for the accident — something the Court has already found — this evidence does not show that Lomec was any more responsible for the accident than Forero was. The same is true of Forero's handwritten note. After the accident, when speaking with Lomec, Forero jotted down some notes on a piece of paper. Def.'s Exh. 6, Forero Handwritten Note. Forero later updated his notes on that paper to reflect that Lomec told him that he "wasn't going to sue/hoped I [Forero] would not sue him." Id. Again, this evidence suggests that Lomec knew he was partially at fault for the accident, but does not prove anything else.
After considering the evidence presented at trial, the Court finds that Forero and Lomec were equally at fault for causing the accident. If Forero had been paying attention as he was approaching the intersection that day, like a reasonable driver would have been, then he would have seen Lomec in the crosswalk. Likewise, if Lomec had checked for oncoming traffic before entering the crosswalk, as he should have, then he would have seen Forero's car approaching. Both parties are equally responsible for this accident.
For the reasons discussed, the Court finds that both Forero and Lomec were negligent and each was fifty-percent (50%) at fault for causing the accident. In view of this decision, the parties must discuss how they wish to proceed on the damages portion of this lawsuit. The Court also encourages the parties to engage in serious settlement negotiations now that liability has been established.