924 (1st Dist. 1993); Joseph v. Schwartz, 96 Ill App.3d 749, 754, 422 N.E.2d 35, 39 (1st Dist.
1981); Zeller v. Durham, 33 lll.App.2d 273, 278, 179 N.E.2d 34, 37 (2nd Dist. 1962). Similarly, a
pedestrian has a duty to conduct himself in a manner that is “free from contributory negligence.”
Zeller, 33 \ll_App.2d at 278, 179 N.E.2d at 37. Whether or not either of the parties was negligent
is a question of fact. id.

As stated previously, Defendant does not dispute that the truck Lloyd was driving caused
Sheehan's death and that Plaintiff can recover if he can demonstrate that Lloyd was negligent in
making the turn. (D.F. 132.) Plaintiff claims that Lloyd is negligent because he had both an
opportunity to observe Sheehan either before or after he fell and the time to stop prior to making
contact with Sheehan. In failing to observe Sheehan, Plaintiff claims, Lloyd breached his duty to
look out for pedestrians and operate his vehicle in such a manner as to avoid pedestrians.

Although Defendant acknowledges that Lloyd could have observed Sheehan either while
stopped on the exit ramp or during the tum, it argues that his failure to observe Sheehan was not
unreasonable under the circumstances. (D.F. | 133.) Defendant argues, first, that Lloyd could
not see Sheehan, standing south of the traffic light on Des Plaines Avenue, while driving down the
exit ramp or while he was stopped at the traffic light because Lloyd’s view was obstructed by three
posts and a chain link fence. Once Lloyd pulled into the intersection to make his turn, these
physical obstructions were no longer an impediment to Lloyd's vision, (D.F. | 137), but Defendant
Lloyd had a number of other concerns: avoiding traffic from Harrison, avoiding southbound and
northbound Des Plaines Avenue traffic, clearing the post in the southwest corner of Des Plaines
Avenue and the exit ramp, and aligning his truck for the tum. In addition, the nature of Lloyd's tum
made it difficult for him to observe Sheehan lying in the street because Lloyd pulled forward first
and by the time he tumed the tractor to the right, Sheehan was already lying prone on the ground.

Given these circumstances, Defendant argues that it was “less unreasonable” that Lloyd failed to

19



in front of the truck or in the truck's path. (Id. at 143.) According to Travis, the proper procedure
for a truck driver making the turn is first to examine the intersection to insure that it is clear of both
pedestrians and vehicles, by looking right, forward, left, and then right again before making the
turn. (/d. at 142-43.)

Travis knows Lloyd to be a courteous and conscientious driver who obeyed traffic laws.
(Id.) In fact, in Travis’ opinion, Lloyd was a better driver than the rest of the drivers he supervised,
including himself. (/d.) In a conversation soon after the accident, Lloyd told Travis that his speed
during the turn never exceeded 3 to 5 miles per hour. (/d. at 144.) Travis estimated that making
the turn at that speed would have taken approximately 20 to 25 seconds. (Id. at 145.)

Expert Testimony

Each side retained an accident reconstruction expert. Plaintiffs expert, Steve Jackson,
works full time as a consultant in his own accident reconstruction business. (Id. at 167.) Jackson
was retained by Plaintiff in Apri! 2001 and has reviewed the relevant documents in the case,
including deposition testimony, police reports, and photographs of the accident scene and of the
truck Lloyd was driving at the time of the accident. (/d. at 173.) Jackson referred to truck as a “full
view tractor,” meaning that it has more glass in front, on the passenger side, and in the back,
providing greater visibility than a typical tractor. (fd. at 202.) Specifically, the passenger side has
a bigger window than a typical tractor and includes another window in the passenger side door,
closer to the ground, for greater visibility. (/d. at 203; PIf.’s Ex. 84.)

Jackson characterized the intersection as “fairly complicated” with a “wagon wheel style";
that is, the I-290 exit ramp, Harrison Street, Des Plaines Avenue and Dunlop Street all feed into
the same intersection. (TT. at 173.) The intersection is further complicated by the fact that the I-
290 exit ramp meets Des Plaines Avenue at a 70 degree angle. (/d. at 180.) Jackson created a

diagram of the intersection, deliberating distorting the diagram to make it appear as if the tuming

13


absence of a sidewalk. As stated previously, sidewalks are in place on both sides of Des Plaines
Avenue.

Finding the statutory definition of little use here, the court turns to the testimony in the case.
Scott stated that he believed an unmarked crosswalk existed, running on an angle between the
southwest and southeast corners of the intersection. He noted the cut curbs on both sides to make
them wheelchair accessible. Such a crosswalk would be the most practical because it would run
from the corner of Des Plaines Avenue to the southeast corner of Des Plaines Avenue. This path
would provide motorists with the best chance to observe pedestrians prior to their crossing the
roadway because pedestrians would wait at the corner of the intersection. In addition, the court
notes that a number of witnesses testified that pedestrians regularly cross the intersection in this
manner. As a result, the court finds that an unmarked crosswalk does in fact run on an angle from
the southwest corner to the southeast comer of the intersection.

Although an unmarked crosswalk existed in this portion of the intersection, the court
concludes that Sheehan was not in this path when he attempted to cross Des Plaines Avenue on
the day of the accident.® Instead, the evidence demonstrates that Sheehan started to cross Des
Plaines Avenue south of the stop light on the west side of Des Plaines Avenue. As he crossed,
Sheehan walked at a slight angle before he fell, even with or just north of the stop line for
northbound traffic. This places Sheehan south of the unmarked crosswalk when Lioyd first made
contact with him. Because Sheehan started weil south of the corner, the only crosswalk he could
have been walking in at the time of the accident would have run perpendicular with Des Plaines

Avenue, running directly in front of the stop line. Such a path would have been inconsistent with

8 Officer Scott testified that he believed Sheehan was crossing in the unmarked
crosswalk when he was hit by the postal truck, but Scott's finding was based on the inaccurate
assumption that Sheehan was standing (walking from corner to corner) when he was hit by the
postal truck.

23


(marked as Sidewalks E and F) and Dunlop Street (marked as Sidewalks G and H), but there is
no sidewalk on either side of the exit ramp. (/d.) Further, although there are painted crosswalks
over four of the five streets that make up this intersection, there is no marked crosswalk for
pedestrians traveling from the southwest corner of the exit ramp and Des Plaines Avenue to the
southeast corner of Des Plaines Avenue and Dunlop Street. (/d.)
The Accident

The parties agree that on November 2, 1999, at approximately 2:15 p.m., James Lloyd had
exited the |-290 expressway in his postal truck and was stopped at the traffic light, waiting to turn
south onto Des Plaines Avenue toward the bulk mail center at 7400 West Roosevelt Road in Forest
Park. (D.F. 19, 11; P.F. 11,14.) The truck Lloyd was driving was a 20-foot-long Mac tractor, with
an automatic transmission, pulling a 45 foot long trailer, owned by the United States Postal Service.
(D.F. 19; P.F. 91.)

At the same time, Sheehan, a pedestrian, was standing south of the southwest corner of
Des Plaines Avenue and the |-290 exit ramp, waiting for the same light to change before crossing
Des Plaines Avenue. (D.F. ] 10.) Sheehan was in the process of walking from a nearby Chicago
Transit Authority El station to his car, which was parked on Dunlop Street. (/d.) When the light
changed, Lloyd started to make his right turn onto Des Plaines Avenue, which required him to first
pull straight ahead to avoid hitting the light post (Light Post C), located just south of the of the exit
ramp, with his trailer. (D.F. {] 20.) At approximately the same time, Sheehan began to cross the
street, but at some point, for an undetermined reason, Sheehan fell to the pavement in the
southbound lanes of Des Plaines Avenue and was unable to get back to his feet. (D.F. | 40-42;
P.F. 9] 20, 26, 27.) Lloyd never saw Sheehan. (D.F. 4 25; P.F. | 27.) He completed his right turn
and in the process ran over Sheehan with the left front tires of the postal truck. (/d.) Soon after

hitting Sheehan, Lloyd became aware that he had hit a pedestrian and stopped his truck. (D.F.



observe Sheehan. (D.F. {[ 144.)

The court notes, first, the troublesome configuration of the intersection at issue in this case.
A driver turning south onto Des Plaines Avenue from the exit ramp must execute a much sharper
turn than is typical. The driver of a semi truck must be cautious to avoid making contact with the
post at the corner of Des Plaines Avenue and the exit ramp. This already difficult task is further
complicated by the fact that this intersection experiences heavy pedestrian traffic from the nearby
E! station and regular vehicle traffic traveling in four different directions.’ Regardiess of these
difficulties, however, Lloyd owed a duty to Sheehan and other pedestrians to keep a lookout and
operate the truck in a manner that would allow him to avoid pedestrians. In examining all of the
obstructions to Lioyd’s vision while he was stopped on the exit ramp, the court agrees with
Defendant that it was not unreasonable that Lloyd failed to see Sheehan while he waited on the exit
ramp for the light to change. Sheehan was south of the traffic light and Lloyd’s view was blocked
at that time by the fence and three posts.

Both expert witnesses, Jackson and Rogers, agree, however, that the posts and the fence
were no longer a problem for Lloyd once he started to drive forward in making his tum. Both agree,
further, that it took Lloyd approximately 13 seconds from the start of his turn to the point of impact.
For five of these seconds, Sheehan was walking across the street prior to falling down. Although
it is much more difficult to see a pedestrian lying on the ground than standing up, the evidence
reflects that Lloyd had an opportunity to see Sheehan in both positions. The court notes, further,
that Jackson and Rogers agreed that it would have taken Lloyd approximately three seconds to

react and stop the truck, after seeing Sheehan in the road. These estimates provide Lloyd with

7 The difficulties for truck drivers posed by this intersection has not dissuaded them.

Several witnesses testified that trucks regularly make this turn on the way to the bulk mail center.
In light of the high volume of pedestrian traffic and the high volume of truck traffic at this hazardous
intersection, the court would hope the intersection will be re-examined and modified for the safety
of both pedestrians and drivers.

20


being hit. Still, the court is reluctant to find that Sheehan’s fall bars any recovery. No evidence was
offered as to what caused Sheehan to fall. In any event, Defendant has not presented any
statutory authority or case law that would support the argument that a pedestrian breaches his of
her duty of care simply by falling down.

Damages

The loss of John Sheehan has been a tremendous hardship for his wife, his children, and
the rest of his family. A monetary remedy never truly compensates for the injury or loss of a loved
one. This type of award, however, is the only one available to the court, and the court must
therefore consider the arguments on both sides regarding damages.

Both sides agree that “surviving heirs or next of kin . . . are entitled to recover for the
pecuniary losses incurred as a result of the death, including money, benefits, goods, services, and
society. Although those damages do not include grief or mental anguish resulting from the death,
damages for loss of society are recoverable, which include the deprivation of love, companionship,
and affection from the deceased person.” Turmer v. Wilson, 326 Ill.App.3d 541, 548, 762 N.E.2d
70, 77 (2nd Dist. 2001). No award for lost wages will be made here because no evidence other
than the fact that Sheehan had a job was offered into evidence.

Instead, Plaintiff seeks damages for loss of society, pain and suffering, and loss of
consortium. He proposes a total award of $6 million; $2.5 million for Sheehan's wife and $500,000
for each of Sheehan's seven adult children. (PIf.'s Submission of Comparable Verdicts and
Settlements, (hereinafter, “PIf.’s Submission’), at 1.) Defendant, on the other hand, has suggested
a total verdict of $950,000 for Sheehan's family; $250,000 for his wife and $100,000 for each of his
children. (D.F. {] 165.)

In Jutzi-Johnson v. United States, 263 F.3d 753, 758-59 (7th Cir. 2001), the Seventh Circuit

considered a Federal Tort Claims Act case and concluded that courts should examine the

26


1002. In the event a pedestrian is crossing a street outside of a crosswalk area, the pedestrian is
required, under Illinois law, to yield to the vehicles in the roadway. 625 ILCS § 5/41-1003. The
parties dispute, first, whether an unmarked crosswalk existed between the southwest and
southeast corners of Des Plaines Avenue and, in the event one existed, whether Sheehan was in
the crosswalk area when Lloyd make contact with him.

There is no dispute that a marked crosswalk—defined as “any portion of the roadway
distinctly indicated for pedestrian crossing by lines or other markings,” 625 ILCS § 5/1-113-did not
exist where Sheehan was attempting to cross Des Plaines Avenue. Both sides agree, however,
that an unmarked crosswalk can exist in the absence of painted lines. Under Illinois law, 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 . . . and, in the
absence of a sidewalk on one side of the highway, that part of the highway included within the
extension of the lateral line of the existing sidewalk to the side of the highway without the sidewalk,
with such extension forming a right angle to the centerline of the highway.” /d.

This statutory definition of an unmarked crosswalk is of little help here. The court notes that
sidewalks are in place adjacent to both sides of Des Plaines Avenue and Dunlop Street. As stated
previously, however, Dunlop is an angled street. If the lateral lines of the sidewalk on Dunlop street
(where it intersects with Des Plaines Avenue to form the southeast corner of the intersection) were
extended to create a crosswalk, as required by the statute, it would run from the southeast comer
of Des Plaines Avenue to the northwest corner of Des Plaines Avenue and the exit ramp. Although
this may be proper under the statute, such a crosswalk would be unwise and unreasonable
because it would require a pedestrian to cross Des Plaines Avenue and the exit ramp at the same
time. In addition, to construe the crosswalk as running perpendicular to Des Plaines Avenue is

also inappropriate under the statute. The statute requires a perpendicular crosswalk only in the

22


straightening out at the end of the turn. (/d.) Thus, the angle of the turn, according to Rogers, is
constantly changing. (/d.)

According to Rogers’ calculations, Lloyd traveled approximately 121 feet from the position
of the truck on the exit ramp to the point of impact. (/d. at 246.) Assuming that the truck
accelerated at an average acceleration rate up to a rate of speed of 13 miles per hour, it would
have taken Lloyd 13 seconds to travel the 121 feet. {/d.) It is impossible to determine the actual
rate of acceleration, but Rogers explained that it is typical in accident reconstruction to assume a
constant rate of acceleration over some known distance. (/d.) Rogers agreed with Jackson that
it would have taken Sheehan five seconds to travel on foot from his position on the curb to the
point of impact. (/d. at 256.) Rogers stated, further, that if Sheehan had not fallen down, he would
have safely crossed Des Plaines Avenue. (Id. at 259.) Rogers estimated that Sheehan could have
crossed the street in ten seconds; thus, had he not fallen, Sheehan would have crossed Des
Plaines Avenue safely. (/d. at 259-60.) Finally, Rogers estimated that if the truck was traveling
seven miles per hour, as Lloyd testified, it would have taken Lloyd 24 seconds to complete his turn,
thus providing Lioyd with more time to observe Sheehan before the point of impact. (/d. at 266-67.)
At 10 miles per hour, Lloyd would have completed the turn in 18 seconds with a stopping time of
2.8 seconds. (/d. at 267-68.) Rogers testified, further, that if Lloyd in fact kept his foot over the
brake as he was making the turn, the stopping time would also be reduced, although only by a
small percentage. (id.)

Rogers determined that the last moment that Lloyd could have seen Sheehan and still
reacted in time to avoid hitting him was 38 feet from the point of impact. (/d. at 250.) According
to Rogers, it is unclear how far the truck was from Sheehan when Lloyd first could have seen him
but Rogers did acknowledge that it was more than 38 feet and that Lloyd could have seen Sheehan

at some point during the turn. (/d. at 249, 250-51.) Rogers nevertheless does not believe that

17


at 117.) Lloyd saw no pedestrians standing on the southwest corner of the exit ramp and Des
Plaines Avenue, while he was waiting for the light to change, nor did he see any pedestrians as he
was executing his fishhook turn. (/d.) Lloyd stated that he always anticipates the possibility that
pedestrians will be in the area and that if he had seen one, whether standing up or lying down, he
would have stopped the truck. (/d. at 114.) Lloyd claims that he followed "established procedure”
in making the turn, checking his mirrors, using the turn signal, and surveying the entire area of the
intersection, looking from left to right. (/d. at 105.) Lloyd testified that he maintained a lookout for
pedestrians; that his maximum rate of speed during the turn was seven miles per hour; and that
he had his foot over the brake throughout the entire turn. (/d. at 122.)

As he was completing the turn, Lloyd testified that he felt a bump and knew something was
wrong. (/d. at 118.) Lloyd denies hearing a car horn or seeing flashing lights, nor does Lloyd
remember anyone beating on the side of his door after he made the turn, but soon after completing
it, he heard someone yell that “there is someone under your truck.” (/d. at 121.) Lloyd stopped
the truck promptly and found Sheehan lying underneath the left side of the trailer.° (Jd. at 121.)
He immediately went back to the cab of the truck and called 911. (/d.)

The police issued no traffic citations as a result of this accident. (/d.) In fact, at the time
of trial, Lloyd was the recipient of 14 safe driving awards from the National Safety Council, including
an award for his safe driving in 1999. (id. at 133.) Lloyd was not reprimanded in any way by the
postal service following the accident, but he has not driven a truck since the accident and instead
took another job with the post office. (/d. at 136.) Lloyd gave up truck driving after the accident
because he was concerned that no matter how safely he was operating his truck, something bad

could happen. (/d.)

8 According to Lloyd, there was no evidence that any part of Sheehan's body had

come into contact with his postal truck. (T.T. at 131.) Lloyd even suspected that Sheehan may
have been hit by another vehicle. (/d. at 132.) As explained above, however, Defendant does not
dispute that Sheehan's injuries were sustained when he was hit by the postal truck driven by Lloyd.

9



$100,000 for the loss of her husband’s earnings. In addition, the jury awarded each of the
decedent's four children $25,000 for loss of services and $125,000 for loss of society. On the
survival count, the jury awarded the wife, as executor of the estate, $75,000 for decedent's
conscious pain and suffering, $4,000 loss of earnings; $66,000 for the decedent's physical
disability; $5,000 for his disfigurement; and $25,000 for her loss of consortium.

The victim in Russell was close in age and estimated life expectancy to Plaintiff Sheehan,
who was 62 years old at the time of his death and had an estimated life expectancy of 18 years.

Similar to the jury’s award to the estate of Keith Russell, this court awards Sheehan's wife, Lois,

$2,000,000 for her loss of society. The court awards an additional $25,000 for her loss of
consortium. As stated earlier, the court will award no amount for lost eamings because no
evidence of Sheehan's earnings were presented at trial. In addition, the court awards $150,000
to each of Sheehan’s adult children for their loss of society.

The court recognizes that Sheehan's conscious pain and suffering was minimal when
compared to that of Russell, who survived six weeks after the accident. In this case, Sheehan was
conscious after the accident for only a few minutes. The accident took place at approximately 2:15
p.m. and it is undisputed that Sheehan was not responsive minutes later, when the paramedics
arrived at the scene. Evidence was introduced, however, that after being run over by the truck,
Sheehan was attempting to talk and get up from the road. Because this conscious pain and
suffering was a fraction of that experienced by Russell, the court will reduce the award to reflect
that difference. Thus, the court awards $10,000 to Plaintiff for Sheehan's conscious pain and
suffering.

The total award to Plaintiff is $3,085,000. This amount is reduced, however, by the
percentage of negligence of Sheehan in crossing the street south of the crosswalk. Thus, the

adjusted final award to Plaintiff is $2,468,000.

29


of Des Plaines Avenue, because it needed to “swing out” before making its sharp turn into the
southbound lanes of Des Plaines Avenue. (/d. at 78.) Brass realized that the truck driver did not
see Sheehan lying in the street and that the truck was on a course to run Sheehan over. (/d.) In
an effort to warn the driver, Brass began to honk his horn and flash his headlights. (/d.) These
attempts failed to get the driver's attention, however, and the truck ran over Sheehan where he had
fallen in the southbound lanes. (/d. at 78, 88.) Brass was unable to estimate the amount of time
that passed from when Sheehan fell until the truck hit him, nor could he determine the truck’s rate
of speed.‘ (/d, at 86, 95.) After the initial impact, Brass got out of his car and attempted to get the
driver's attention by striking the driver's door and yelling until Lloyd stopped the truck. (/d. at 90.)
Brass recalled that Lloyd was initially in disbelief wnen Brass explained what had happened. (/d.)

Once the truck had stopped, Brass approached Sheehan and attempted to speak with him
as he lay on the road under the truck. (/d. at 91.) Sheehan was initially responsive: Brass asked
him whether he understood that he had been hit by a truck and Sheehan nodded affirmatively. (/d.)
Brass testified that Sheehan attempted to speak, but could only mumble; his attempt to get up from
the street was also unsuccessful. (/d. at 91.) Within a few minutes, paramedics artived and found
Sheehan unresponsive.’ (Loyola EMS System Ambulance Report, Def.'s Ex. 10, at 1; P.F. 135;
D.F. 73.) The paramedics transported Sheehan to Loyola University Medical Center in Maywood,
Illinois, for treatment, arriving there at 2:29 p.m. (Loyola EMS System Ambulance Report, Def.’s

Ex. 10, at 1, 3, Emergency Department Record, Def.'s Ex. 11, at 7.) Sheehan was pronounced

4 Brass testified that Sheehan's coat was first caught by the bumper of the truck and
then Sheehan was spun around before his head was run over by the right front tires of the postal
truck. (T.T. at 90.) The court notes, however, that there is no other evidence that Sheehan was
hit by the right tires; instead, as described below, there is overwhelming evidence that Sheehan
made contact with the left front tires of the truck.

5 The record is unclear regarding the exact time the paramedics arrived, but it had to
be after the accident took place at 2:15 p.m. and before Sheehan arrived at the hospital at 2:29
p.m..



4 25; P.F. 9] 27, 28.)
Witness Testimony

At the time of the accident, Demetrius Brass, a diesel truck technician, was driving in the
opposite lane northbound on Des Plaines Avenue just south of its intersection with the I-290 exit
ramp. (T.T. at 76.) Brass was very familiar with the intersection because he lived in Forest Park
and traveled through the intersection twice a day on his way to and from work. (/d. at 76-77.)
Brass testified that he had regularly observed pedestrians in the area, crossing Des Plaines
Avenue from west to east, similar to Sheehan's intended path. (/d. at 76-77, 92.) From his
position, second in line in the center northbound lane, (id. at 79, 82), Brass could see Sheehan,
standing on the west side of Des Plaines Avenue, just south of the southwest corner formed by the
exit ramp and Des Plaines Avenue. (/d. at 92.) Brass also saw postal truck stopped in the right-
hand turning lane of the exit ramp, also waiting for the light to change. (/d. at 84-85.)

When the light changed for the postal truck, Brass recalled, the truck first drove straight
ahead. (/d.) At the same time, Sheehan started to walk across the street at what Brass described
as a “slight angle” (presumably in the direction of the southeast corner of Dunlop and Des Plaines
Avenue). (/d.) While the truck was still pulling forward, before beginning its turn, Brass saw
Sheehan fall to the ground in the middle of the southbound lanes of Des Plaines Avenue for no
apparent reason. (/d. at 94.) Sheehan fell so suddenly that he did not have time to put his hands
out to break his fall, and he came to rest lying on his stomach between the two southbound {anes
of Des Plaines Avenue, his feet pointed towards the curb and his head closer to the double yellow
lines dividing the northbound and southbound lanes of Des Plaines Avenue. (/d.) Brass testified
that after falling, Sheehan did not immediately get up, but instead was able only to roll over onto
his side, so that he was facing north, in the direction of the oncoming postal truck. (/d. at 86.)

Brass recalled that at the time Sheehan fell, the truck was almost in the northbound lanes


Lloyd should have seen Sheehan because Lloyd was still trying to clear the curb and was

concerned with the curb, with avoiding the lamp post, and with other traffic, as well. (/d. at 253.)

Rogers acknowledged, however, that the obstruction to Lloyd's view only lasted for the early part

of the turn and that once the truck was out in the street, Lloyd’s view was no longer obstructed.

(Id, at 262.) Thus, Lloyd had an opportunity to observe Sheehan from the start of the turn, until the

point of impact, which includes the period of time that Sheehan was walking. (/d. at 261.)
DISCUSSION

The court has jurisdiction over this lawsuit pursuant to the Federal Torts Claims Act
("FTCA"), 28 U.S.C. §§ 1346(b) and 2671 et seg. The FTCA was “designed primarily to remove
the sovereign immunity of the United States from suits in tort, and with certain specific exceptions,
to render the Government liable in tort as a private individual would be under like circumstances."
Richards v. United States, 369 U.S. 1, 6 (1962). Suits brought under FTCA are governed by “the
law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). Accordingly, this
wrongful death action is governed by the law of the state of Illinois.

Under Illinois law, Plaintiff may recover if he can demonstrate that the United States, acting
through Lloyd, was negligent and that this negligence was the proximate cause of Sheehan’s
injuries and death. 740 ILCS §180/1. The court will also consider Sheehan's negligence because
under Illinois law, his fault must be compared against the fault of Lloyd in causing his own death
and recovery is reduced by this percentage of fault, if any exists. 735 ILCS § 5/2-1116(c). In the
event Sheehan is more than 50 percent responsible for the accident, he is barred from any
recovery. /d.

Both sides agree that under Illinois law, a driver has a duty to maintain a proper lookout for
pedestrians and a duty to exercise reasonable care in operating the vehicle in such a manner as

to avoid pedestrians. Alexander v. Yellow Cab Co., 241 Ill.App.3d 1049, 1054, 609 N.E.2d 921,

18


the outside southbound lane and completed her tun by going around the postal truck. (/d. {| 66.)
Zellers did not see the truck make contact with Sheehan, but as she passed the truck, Zellers saw
Sheehan lying on the ground moving in a way she described as the movement of someone
struggling to swim. (/d. {1 67, 68.) She pulled over a half block south of the truck and used her
cellular phone to report the accident to the Forest Park Police Department, before proceeding on
her trip to work. (/d. J] 70.)
Lloyd’s Testimony

James Lloyd, the driver of the postal truck, began driving trucks for private firms in 1954
and, since 1984, had been a tractor trailer operator with the United States Postal Service. (Id.)
Lloyd was very familiar with the intersection where the accident occurred because he made
frequent runs to the bulk mail center, requiring him to travel through the intersection. (/d. at 104.)
Lloyd testified that, prior to the day of the accident, he had “occasionally” seen pedestrians in the
intersection crossing Des Plaines Avenue from the southwest comer to the southeast corner. (/d.
at 123-24.) He testified, further, that on the day of the accident, his view south down Des Plaines
Avenue was obstructed by the posts (Light Post C and Traffic Lights A and B) and the chain link
fence (Fence D), but not by the bushes. (/d. at 111-12.) He explained, without further elaboration,
that from the driver's seat of his truck it is harder to see things which are “below eye tevel.” (/d. at
131.)

Lloyd described the difficulties of the turn he was making in some detail. He noted the post
just south of the exit ramp (Lamp Post C), near the southwest corner of Des Plaines Avenue. (Id.
at 108.) In order to avoid hitting this post with the trailer of his truck, Lloyd testified, he was
required to perform a “fishhook” turn, that is, to drive his truck directly east into the intersection
before turning the truck south onto Des Plaines. (/d. at 108.) Although he was concermed about

the post, Lloyd nevertheless focused his main concern on the area where he planned to tum. (id.



the Illinois statute and arguably unsafe because it would have pedestrians standing well south of
the corner on the west side of Des Plaines Avenue waiting to cross, rendering them less visible to
east-bound drivers.

The court's determination that Sheehan was crossing Des Plaines Avenue outside of an
unmarked crosswalk does not by itself require a finding that Sheehan was negligent. Illinois courts
have held, instead, that whether a pedestrian crossing the roadway at a point other than a marked
crosswalk exercised due care remains a question of fact. Trennert v. Coe, 4 Ill App.2d 166, 170,
124 N.E.2d 79, 81 (2nd Dist. 1955); King v. Ryman, 5 Il. App.2d 484, 125 N.E.2d 840 (2nd Dist.
1955); Crowley v. Sidey, 11 Ill.App.2d 577, 138 NE.2d 90 (1st Dist. 1956). These old but still valid
cases are consistent with a more current jury instruction used and approved by Illinois courts. In
cases such as the one before this court, Illinois juries are instructed that a pedestrian crossing a
roadway in an unmarked crosswalk shall yield the right-of-way to all vehicles in the roadway; but
every driver must nevertheless exercise care to avoid a collision, must sound the horn when
necessary, and must exercise precaution when observing an incapacitated person. Illinois Pattern
Jury Instructions, Civil 70.03; see Grossman v. Gebarowski, 315 IIl.App.3d 213, 732 N.E.2d 1100
(1st Dist. 2000).

After reviewing all of the evidence related to this accident, the court finds that Sheehan was
in fact negligent in deciding to cross Des Plaines Avenue in an area outside of the unmarked
crosswalk. Specifically, Sheehan breached his duty of care by crossing the street south of the
traffic light rather than at the southwest comer of Des Plaines Avenue and the exit ramp. Sheehan
would have been in the crosswalk area if he had started to cross the street from the comer of the
intersection rather than farther south on Des Plaines Avenue. This path would have made it more
likely that Lloyd would have seen Sheehan as he crossed the intersection. The court concludes,

however, that Sheehan's negligence does not bar him from any recovery. First, a number of

24


Minute Order Form (06/7)

Dita

nited States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Othe
or Magistrate Judge PS call Palimeyer than ‘Assigned Judge
CASE NUMBER 00 C 8013 DATE 8/8/2003
CASE John P. Sheehan, IV, et al. vs. United States of America
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
QQ) Oo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) oO Answer brief to motion due . Reply to answer brief due. .
(4) oO Ruling/Hearing on set for at
(5) oO Status hearing{held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference{held/continued to] [set for/re-set for] on set for at .
(7) oO Trial[set for/re-set for} on at
(8) o [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to} |
: COFRCP4(m) OLocal Rule 41.1 CIFRCP41(aX(1) © FRCP41(a){2).
(10) EM [Other docket entry] Enter Memorandum Opinion and Order. The court enters judgment is entered
in favor of Plaintiff and against the United States and awards damages in the amount of $2,468,000.
(il) Wf [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document’:
No notices required.
ov | Notices mailed by judge's staff.
Notified counsel by telephone.
Docketing to mail notices.
Mail AO 450 form.
synod 135tys
Copy to judge/magistrate judge. Wad
courtroom rand ges
ETV deputy’s ~
initial : - Tie
meas Date/time receivedata lL 3 TSUU | ad cay
central Clerk’s Office L-GLD —raiing deputy initits



Plaines (created by the intersection of Dunlop Street and Des Plaines Avenue). (/d. at 52.) The
existence of this unmarked crosswalk is confirmed, in Scott's view, by the fact that both comers
feature cut curbs, allowing a wheelchair to be pulled up or down from the sidewalk to the street.
(Id. at 41.)

Scott found hair on the left front tire of the tractor and the two front left tires of the trailer.
(id. at 54.) Sheehan's hat was found almost exactly where the two center yellow lines of Des
Plaines Avenue meet the white stop line for northbound traffic on Des Plaines Avenue. (/d. at 52.)
Sheehan's glasses were lying south of the hat, just south of the stop bar. (/d.) Scott also found
Sheehan's blood splattered in both the southbound and northbound lanes of Des Plaines Avenue
and on the double yellow lines that divide the two lanes. (/d. at 47.) The location of the blood
demonstrated, according to Scott, that at the time of the initial impact, Sheehan was in the
unmarked crosswalk area crossing from corner to corner rather than in the middle of the block.
(Id, at 48.) According to Scott, the location of the blood on the double yellow lines indicates that
Sheehan was first hit by the truck while he was north of the stop bar. (/d. at 56.)

On cross examination, however, Scott admitted that his opinion regarding the point of
impact, supported by the blood splatter south of the stop bar, was developed with the belief that
Sheehan was standing when he was hit by the truck. (/d. at66.) Scott acknowledged, further, that
he found no evidence that Sheehan was struck by the front of the truck and that although he
himself was the officer responsible for issuing tickets related to the accident, he issued no tickets.
(id. at 69.)

William E. Travis, the Supervisor of Transportation for the United States Postal Service,
went to the accident scene on November 2, 1999 to gather information. (/d. at 139.) As supervisor,
Travis was responsible for monitoring his drivers and their schedules, dispatching, and investigating

accidents. (/d. at 139-40.) Prior to becoming a supervisor, Travis drove a truck for the postal

11


Investigation of the Accident

John Scott, a police sergeant with the Village of Forest Park, was assigned to investigate
the accident involving Sheehan. (/d. at 32.) Scott was certified as an accident investigator in 1977,
the year he joined the Forest Park Police Department, and has investigated nearly 1,000 accidents
since then, 100 of which involved fatalities. (/d. at 36.) Although Scott was trained in accident
investigation and accident reconstruction, he considers himself an expert only in accident
investigation, and explained that his expertise includes determining the point of impact, the energy
involved in an accident, speeds, skid functions, physical drag, and friction. (/d. at 34.)

Scott was familiar with the intersection because he lived nearby and frequently traveled
through it. (/d.) He explained that trucks regularly travel though this intersection after exiting the
|-290 expressway and turing south on Des Plaines Avenue en route to the bulk mail center. (/d.
at 35.) In Scott's view, the intersection was unsafe because its configuration required trucks to
make a turn sharper than 90 degrees from the I-290 exit ramp south onto Des Plaines Avenue.
(id. at 67.) Regular pedestrian traffic from the nearby El station further complicates the
intersection. (/d. at 35.)

The initial call to police regarding the accident was received at 2:17 p.m., and Scott arrived
at the scene approximately 20 to 30 minutes later. (/d. at 39.) When he first arrived, the truck had
not been moved and was standing approximately 100 feet south of the intersection, between the
two southbound lanes. (/d. at67.) Scott learned that Sheehan had been taken to the hospital, but
he noted a pool of blood and debris beneath the truck, where Sheehan had come to rest after being
dragged by the truck. (/d.)

Although there is no painted crosswalk where Sheehan was crossing, Scott characterized
the path he followed as an “unmarked crosswalk” that runs at a sixty to seventy degree angle from

the southwest corer of the exit ramp and Des Plaines Avenue to the southeast corner of Des

10


Traffic Light B.

cu)
x

3
Z
wo

t

"Light Post C

Traffic Light

Sidewalk E



CONCLUSION
The court finds in favor of Plaintiff on his wrongful death claim and awards Plaintiff
$3,085,000, reduced by twenty percent (20%) to $2,468,000 to reflect Sheehan's own
responsibility: $1,600,000 for Mrs. Sheehan’s loss of society; $20,000 for her loss of consortium;

$8,000 for conscious pain and suffering and $110,000 for the loss of society to each of Sheehan's

adult children).

ENTER:

Dated: August 8, 2003

REBECCA R. PAKEMPYER
United States District ig

30


dead at 2:59 p.m. (/d.)

Michael Alaska, an electrician from Stickney, Illinois, was also driving through the
intersection at the time of the accident. (Id, at 17.) In his 1987 Ford Bronco |I, Alaska exited the
[+290 expressway behind the postal truck driven by Lloyd. (/d.) As he drove east down the exit
ramp toward the intersection, Alaska saw Sheehan standing south of the exit ramp and south of
the light on Des Plaines Avenue. (id. at 20, 28.) Because Alaska’s view was blocked by bushes
and the chain link fence (Fence D) that lined the south side of the exit ramp, he could see Sheehan
only for a moment. (/d.) Once Alaska was stopped behind the postal truck, Sheehan was no
longer visible to him. (/d.)

When the light changed, Alaska observed the truck Starting to move forward, into the middle
lane, which is dedicated to forward-only traffic, and then, soon after completing its turn, come to
a sudden stop. (/d. at 25.) At the point it stopped, the truck was far enough away from the curb
for Alaska to make a sharp turn between the truck and the western curb of Des Plaines Avenue.
(/d.) As he passed the postal truck, Alaska saw Sheehan, lying in the fetal position with blood on
his body. (/d. at 24.) Alaska parked his car on a side street, and returned to the scene, where he
observed that Sheehan was still in the fetal position with blood around him and that the truck driver
was “shook up.” (/d. at 22-23.) Alaska observed blood on the tires of the truck and on the street,
but not on the front of the truck. (/d. at 26.)

At approximately the same time, Lawdrena Zellers was driving west on Harrison Street,
intending to make a left turn onto Des Plaines Avenue. (D.F. 160.) Zellers saw no pedestrians
as she made her tum, (id. 1] 62-64), but she did hear horns blowing. (P.F. {] 30.) Because the
postal truck had moved into the center southbound lane of Des Plaines Avenue, Zellers was initially
unable to complete her left turn. (D.F. 64.) From this position, as she waited for the intersection

to clear, Zellers could see something underneath the truck. (id. 165.) She then drove her car to


approximately nine seconds, from when he started the turn, to observe Sheehan and stop his truck
before making contact. This nine second window of time only gets larger if Lloyd was, as he
testified, actually performing the more intricate fishhook turn and was traveling no faster than 7
miles per hour. The court concludes that this time frame provided Lloyd with a brief but sufficient
opportunity to see Sheehan either walking or lying on the ground. As a result, the court finds that
Lloyd breached his duty to Sheehan when he failed to see Sheehan in the road and stop his truck
before making contact. The conclusion that Lloyd was negligent in making the turn that resulted
in Sheehan's death is bolstered by the evidence that Lloyd was unaware he had hit Sheehan until
Brass stopped him.

The court turns, next, to the issue of Sheehan’s negligence. Defendant argues that
Sheehan was negligent because he failed to exercise ordinary care for his own safety while
crossing Des Plaines Avenue. Albaugh v. Cooley, 87 Ill.2d 241, 249, 429 N.E.2d 837, 840 (1981).
This standard is applied based on the facts of each case, and Defendant has the burden of
demonstrating Plaintiff's negligence. /d.; Patel v. Brown Mach. Co., 264 Ill App.3d 1039, 1053, 637
N.E.2d 491, 500 (1st Dist. 1994). Specifically, Defendant argues that Sheehan was negligent
because he did not cross in a marked crosswalk area, because he failed to select a safer means
available for crossing the street, and because he fell while crossing the street. Plaintiff, on the
other hand, argues that Sheehan was in or near an unmarked crosswalk at the time of the accident
and as a result had the right of way. Even if Sheehan was not in or near a crosswalk, however,
Plaintiff argues that Sheehan had the right of way and Lloyd was required to yield to Sheehan in
the roadway.

Whether or not a crosswalk existed and whether Sheehan was in the crosswalk at the time
Lloyd made contact with him is relevant because under Illinois law a pedestrian in a crosswalk has

the right of way and vehicles are required to yield to pedestrians in crosswalks. 625 ILCS § 5/11-

21


resolution of similar cases when determining the value of pain and suffering to limit “arbitrary
variance in awards.” Jutzi-Johnson involved the use of comparable verdicts in determining an
appropriate award for pain and suffering; the loss of society, as claimed here, is analogous due to
its intangible nature. Thus, the court will review recent awards in cases similar to this one. To
assist in this process, both sides have submitted a number of verdicts they consider comparable.

Among the cases cited by Defendant is Cochrane v. Bejco Construction, Inc. (tried 2001),
in which a 58-year-old woman died as a result of the injuries she sustained after being run over by
defendant's forklift. Cook County Jury Verdict Reporter, 97L-15445. Plaintiff was awarded
$612,500, but this amount was reduced to $306,250 to reflect the decedent's 50 percent
contributory negligence. The decedent was survived by her husband and three children. Although
decedent's age and family circumstances are somewhat similar to those presented here, the
marital relationship between decedent and her husband is quite different: In contrast to the
relationship between Sheehan and his wife Lois, who were married for almost 40 years, decedent
and her husband in Cochrane had been married for only one year. This marriage was the
decedent's second marriage and her husband's fourth.

Defendant also cites Smith v. New York Hospital (tried 2001), 2001 WL 1137023 (LRP
Jury), in which plaintiff filed a wrongful death claim in Bronx County, New York, resulting from the
negligent placement of a catheter used as part of decedent's chemotherapy treatments for
leukemia. Defendant denied liability because decedent's injury was a known risk in the catheter
insertion procedure. Defendant noted, further, that decedent, then 62 years old, only had six
months to live. The jury awarded $1,514,400 to decedent's surviving wife and six adult children.
The court finds this verdict distinguishable because Sheehan was in good health at the time of his
death and had a life expectancy of 18 years.

Defendant also cites Utheim v. Westem Pneumatics, Inc., 1989 WL 1100163

27



of the Intersection of I-290 and Des Plaines Avenue, PIf.’s Ex. 1.) The I-290 exit ramp intersects
the west side of Des Plaines Avenue and only carries traffic headed east from the I-290
expressway. (Id.) At the end of the exit ramp, before traffic enters the intersection, the exit ramp
has three lanes that direct traffic in one of three directions: north, east, and south. (/d.) Dunlop
Street and Harrison Street both intersect on the east side of Des Plaines Avenue and both are two
lane, two-way streets. (D.F. ] 4; Pif.'s Ex. 1.) Dunlop Street intersects with Des Plaines Avenue
diagonally from the southwest and Harrison Street intersects directly opposite the |-290 exit ramp.
(/d.) For purposes of this case, the court is most concemed with the intersection created by the
!-290 exit ramp and Des Plaines Avenue where this accident took place.

The southwest corner of the intersection, created by Des Plaines Avenue and the I-290 exit
ramp, is irregular because it does not forma 90 degree angle. (PIf.'s Ex. 1.) A driver turning south
from the exit ramp onto Des Plaines Avenue must make a much sharper turn than 90 degrees.?
(Id.) In addition, three posts stand south of the I-290 exit tamp along the west side of Des Plaines
Avenue near the southwest corner of the intersection. (D.F. 1] 6; PIf.'s Ex. 1.) Two of these posts
support traffic lights; one of these lights regulates traffic headed east from the exit ramp (marked
as Traffic Light A) and the other regulates traffic heading south on Des Plaines Avenue (marked
as Traffic Light B). (/d.) A street lamp post stands on the corner between the two traffic lights
(marked as Light Post C), and a chain link fence, approximately six feet high, runs adjacent to and
south of the I-290 exit ramp and continues further adjacent to and west of Des Plaines Avenue
(marked as Fence D). (/d.) Bushes partially line a Portion of the chain link fence that is adjacent

to the exit ramp. (Pif.’s Ex. 1.) Sidewalks also run adjacent to both sides of Des Plaines Avenue

2(...continued)
the court has marked the relevant landmarks, which are described below.

: Judging from aerial photographs of the scene, the court estimates the angle of the
right turn at 70 degrees.


angle were a full 80 degrees. (/d. at 180.) Jackson explained that this distortion gives the benefit
of the doubt to the driver; at a turning angle greater than 70 degrees, the driver could utilize “full
and sustained acceleration” and complete the turn more quickly, with less time to observe and
avoid a pedestrian. (Id. at 179-80.) ,

According to Jackson's calculations, the truck traveled 135 feet from the stop line on the
ramp to the point of impact on Des Plaines Avenue (near where the double yellow lines meet the
stop bar for northbound traffic on Des Plaines Avenue). (/d. at 181, 183.) Jackson calculated that
it would take the truck 12.9 seconds to travel from its position on the exit ramp to the point of
impact. (id. at 191.) Limited physical obstructions would have interfered with Lloyd’s view of
Sheehan, according to Jackson; neither the bushes adjacent to the exit ramp, which lacked foliage
at the time, nor the chain link fence adjacent to the exit ramp and Des Plaines Avenue presented
an impediment to Lloyd’s vision. (/d. at 183.) To test visibility, Jackson asked an assistant
(Jackson's son) to stand at different points on Des Plaines Avenue, while Jackson himself stood
on the exit ramp. (/d. at 185.) From each of several different points on the exit ramp, Jackson was
able to see his son through the fence. (/d.) At the time of the accident, Jackson noted, Lloyd was
seated seven feet high in the tractor of the postal truck, which would allow him to see over the six-
foot fence. (/d. at 183.) Jackson did acknowledge that the light posts on the comer could have
obstructed Lloyd's vision, but any vision impediments would have been “short lived,” in Lloyd's view,
because anything behind the posts would become visible once the truck started to move forward
to execute the turn. (/d. at 183, 186.)

Using the standard acceleration and deceleration factor, or stopping factor, fora semi truck,
Jackson determined that the truck could have reached a speed of up to 14 miles per hour in
traveling the 135 feet prior to the point of impact. (/d. at 192-93.) If Lloyd had reached a speed

of 14 miles per hour, he could have stopped the truck in three seconds, including the time it would

14



217.) Jackson also acknowledged that a moving object is more easily seen than a stationary
object, such as Sheehan lying on the ground. (/d. at 218.)

Defendant's expert, Michael Rogers, works as a licensed engineer for Packer Engineering.
(id. at 236-27.) Rogers is a state-certified accident reconstruction expert who has performed
approximately 600 to 800 accident reconstructions during the past 17 years. (/d. at 237.) Rogers
prepared a number of different diagrams illustrating the accident scene. (/d. at 240.) Rogers
testified that his diagrams are drawn to scale and are totally accurate, (id. at 243), apart from the
fact that they do not depict a fishhook turn and instead assume a more uniform turning radius. (/d.
at 264.)

Rogers identified a number of obstructions to Lloyd’s view of Sheehan from the truck's
position on the exit ramp waiting for the light to change. (/d. at 241.) These impediments include
the street light post (Light Post C), the traffic light posts (Traffic Lights A and B), the chain link
fence (Fence D), and the truck's side mirror. (/d. at 241-42.) Rogers acknowledged that once
Lloyd began making the turn, there were no obstructions to his visibility, but he pointed out that the
truck driver still has a number of things to concern himself with after starting the turn, including
traffic coming from other directions and making sure the trailer does not hit the light post on the
comer. (Id. at 258-59.)

Similar to Jackson, Rogers noted that Lloyd's right turn was particularly challenging
because it was sharper than 90 degrees. (/d. at 244.) Rogers questioned Jackson's assumption
that the truck made the entire turn using a constant 14 degree tuming radius. (Id. at 244-45.)
Although Rogers did not diagram the turn as a fishhook turn, he observed that rather than turning
immediately into a 14 degree angle, the truck driver at this intersection must actually pull out
straight in order to provide the trailer enough room to make the turn and clear the corner. (/d.)

Then after providing this needed space, the driver must make a much sharper turn before

16


was acting within the scope of his employment. (Defendant's Proposed Findings of Fact and
Conclusions of Law, (hereinafter, “D.F.”), 1119, 132.) Instead, the parties dispute whether Lloyd’s
failure to observe Sheehan under the circumstances was negligent and whether Sheehan was
negligent himself in the manner he attempted to cross Des Plaines Avenue.

John Sheehan was 62 years of age when he died. (D.F. J 124.) At the time of his death,
Sheehan was in good health and had a life expectancy of 18.2 years. (D.F. | 124.) He grew up
on the south side of Chicago before leaving for college at the U.S. Military Academy at West Point.
(Trial Transcript, (hereinafter, “T.T."), at 291-92, 308.) After graduating from West Point in 1959,
Sheehan married Lois, his girlfriend of five years, and began a career in the military. (/d. at 294.)
Sheehan and Lois have seven children; the oldest was born in 1960 and the youngest in 1971.
(Id.) tis undisputed that Sheehan enjoyed a loving and healthy relationship with his wife and that
he was respected and loved by all of his adult children. (D.F. 1] 127-128.) Sheehan's family
members described him in vivid terms as a source of strength who is greatly missed by his widow
and children.

The Setting

The accident that led to Sheehan’s death occurred while he was attempting to cross Des
Plaines Avenue just south of its intersection with the exit ramp leading from the I-290 expressway
in Forest Park, illinois. (D.F. | 1; Plaintiffs Proposed Findings of Fact and Conclusions of Law,
(hereinafter, “P.F.”), | 2.) Before addressing the evidence pertaining to the accident, the court
pauses to describe the configuration of the five-way intersection where the accident occurred,

Des Plaines Avenue is a four lane road running generally north and south with two lanes

for northbound traffic and two lanes for southbound traffic.2 ((D.F. 9] 1, 3, 5; Aerial Photograph

2 The court has attached an aerial photograph of the intersection, Plaintiff's exhibit
1, to this opinion to provide the reader with a better perspective of the accident scene. In addition,
(continued...)


witnesses including Lloyd testified that it was common to observe pedestrians crossing in the
manner used by Sheehan, starting south of the stop light on Des Plaines Avenue to cross to the
east side of Des Plaines Avenue. The court notes, next, that when Lloyd initially started his tum,
he pulled forward rather than straight. Sheehan could well have construed this motion as an
indication that Lloyd was going straight ahead rather than making a right hand turn, giving Sheehan
the right of way. Lastly, as stated above, Sheehan was visible to Lloyd once he started his turn.
The court conciudes Sheehan's negligence renders him twenty percent (20%) responsible for this
accident and will reduce its award of damages by this amount only.

Defendant also argues that Sheehan was Negligent in not selecting a safer route to Dunlop
Street that would have allowed him to cross entirely through marked crosswalks. Klimovich v.
Crutcher, 57 Il_App.2d 444, 451, 206 N.E.2d 723, 727 (1st Dist. 1965) (pedestrian can breach his
or her duty of care by failing to utilize a safer route to cross a street). The court rejects this
argument. As noted, an unmarked crosswalk did exist in the area of the intersection just north of
where Sheehan crossed Des Plaines. Although Sheehan's path ran further south, its proximity to
the unmarked crosswalk suggests his failure to take the far longer course (on paved sidewalk)
does not by itself constitute negligence.

Finally, Defendant argues that Sheehan was negligent because he fell while attempting to
cross the street and thus did not execute ordinary care in crossing the street. Both experts agree
that if Sheehan had not fallen in the street, he would have Safely crossed the street before Lloyd
reached the point of impact. Specifically, according to both expert witnesses, it would have taken
Sheehan approximately 10 seconds to cross from one side to the other, while it took the truck
approximately 13 seconds to reach the point of impact. Absent the fall, Sheehan would have
safely crossed the street; ata minimum, remaining on his feet would have rendered Sheehan more

visible to Lloyd or arguably able to see Lfoyd’s approach in time to return to the curb and avoid

25


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOHN P. SHEEHAN, IV, as Independent
Executor of the Estate of JOHN P.
SHEEHAN, Ill, Deceased,

DOCKETED

)
)

Plaintiff, ) AUG 1 1 2003
)

v. ) No. 00 C 8013
)
UNITED STATES OF AMERICA, ) Judge Rebecca R. Pallmeyer

)

Defendant. )

MEMORANDUM OPINION AND ORDER

This lawsuit arises from a tragic traffic accident that claimed the life of 62-year-old John P.
Sheehan, Ili (“Sheehan”). On November 2, 1999, Sheehan was hit and fatally injured by a United
States Postal Service truck as he was attempting to cross Des Plaines Avenue in Forest Park,
Illinois. On December 22, 2000, Sheehan’s oldest son John filed a two-count complaint against
the United States on behalf of his father's estate. Plaintiffs complaint, under the Federal Tort
Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq., alleges that the driver of the postal truck,
James Lloyd, was negligent in failing to observe and avoid Sheehan as he crossed the street.
Defendant United States concedes that Lloyd was acting within the scope of his employment with
the United States Postal Service, but denies liability, urging that the evidence does not show that
Lloyd acted negligently.

For the reasons discussed below, the court finds in favor of Plaintiff.

BACKGROUND'
The parties do not dispute that John Sheehan died as a result of the injuries he sustained

from being run over by the postal truck driven by James Lloyd on November 2, 1999, or that Lloyd

‘ The facts presented in this section were compiled from a four day bench trial held
before the court on May 1-2, and July 1-2, 2002.


(JVRA.Nat.Jury), in which decedent, a 62 year old woman, married to her husband for 43 years
and mother of seven children, was fatally injured when she was hit by a pick-up truck while crossing
the street at an intersection in Aberdeen, Washington. In 1989, the jury awarded the decedent's
estate $507,000, but plaintiff later entered a post-trial settlement agreement for $425,000.
Although the facts of the case are plainly analogous, the court does not find this verdict instructive
because the case is over ten years old and was decided in the state of Washington, which at the
time had state law caps on damages well below the amount at which the case settled.

Plaintiff, first, cites Christo v. Heilig Meyers Co. (tried 2002), a wrongful death action filed
in Cook County on behaif of the deceased’s estate. Cook County Verdict Reporter 991-8771. On
July 10, 1998, the decedent, Thomas Christo, was driving in Chicago when he was hit by
defendant's moving van, after the van had run a stop sign at approximately 40 miles per hour.
Christo survived for two hours before he died as a result of his injuries. Defendant admitted
liability, but it maintained that plaintiff, then 56, had a life expectancy of only two years because of
his history of congestive heart failure, heavy smoking, hypertension, coronary artery disease,
pulmonary disease and renal insufficiency. The jury returned a verdict for $2,506,000; of that
amount, $2,070,00 was for loss of society to Christo’s three adult children.

Although Christo is similar to this case in certain respects, the court finds Russell v.
Bethesda Lutheran Home, 2002 WL 430538 (JVRA.Nat.Jury), more instructive. The Russell case,
filed in Lake County, Illinois, arose from an accident caused when the defendant, who was reading
a magazine while driving his car at 55 miles per hour, collided with a farm tractor driven by the
decedent, who died six weeks !ater. At the time of his death, decedent was 62 years old and had
a life expectancy of 17 years. He was survived by his wife and five adult children. The jury
returned a verdict of $3,165,588.37 in favor of plaintiff. On the wrongful death count, the jury

awarded the deceased wife $100,000 for loss of services, $2,000,000 for her loss of society, and

28

—_— eee ee


service. (/d. at 139.) Although Travis is a certified accident investigator by the United States
Postal Service, he did not draw any conclusions regarding Lloyd’s accident or attempt to determine
the point of impact. (/d. at 140-41, 157.)

According to Travis, the flat windshield truck that Lloyd was driving has a “blind spot” on the
right side of the truck, approximately one foot in size. (/d.) In addition, Travis stated that the truck
has a “very small” blind-spot directly in front of the truck that is roughly 6 inches to 2 feet in size.
(id. at 146-47.) Travis added that the windshield in Lloyd's truck dipped down to reduce the blind
Spotin front. (/d. at 148.) Travis does not believe that weather conditions contributed to causing
this accident, nor did the visuaf obstructions at the comer, such as the fence and bushes. (id. at
156.)

Travis himself was familiar with the intersection, having traveled through it many times
before November 2, 1999. (/d. at 142.) Like Demetrius Brass, Travis had observed pedestrians
crossing near the southwest and southeast corners of the intersection, despite the absence of a
designated crosswalk. (/d. at 143.) On a diagram that he developed as Part of his review of the
accident scene, Travis drew dotted lines across Des Plaines Avenue to illustrate the area in which
pedestrians frequently cross. (Id. at 150, 156.) The dotted lines of the diagram depict a pedestrian
path perpendicular to Des Plaines Avenue, north of the stop bar, rather than a diagonal path from
comer to corner. (id. at 143; Plif.'s Ex. 100.) Travis acknowledged that pedestrians frequently
cross in this area, but he believes these pedestrians are “jaywalking.” (/d. at 148.) Travis did not
draw any conclusions regarding the cause of the accident, (id. at 1 58), nor did he testify regarding
the actual path taken by Sheehan.

Travis is not familiar with the legal definition of an unmarked crosswalk, (id. at 161), but
from his own driving experience, Travis acknowledged that a driver would always anticipate

someone crossing the street on foot and would always be responsible for observing pedestrians

12


take him to recognize the hazard, move his foot to the brake and skid to a stop. (/d. at 194.) At
a slower speed, it would have taken him less time; for example, if Lloyd executed the turn at a
speed of seven miles per hour, 16.5 seconds would have elapsed from start to the point of impact.
(id. at 196, 207.) According to Jackson, at either the greater or lesser speed, Lloyd had enough
time to observe Sheehan and brake before hitting him. Further, if Lloyd had his foot over the brake
the entire time as he testified, Jackson stated this would reduce his stopping time by as much as.
half a second. (Id. at 196-97.)

Jackson also calculated the time it would have taken Sheehan to travel on foot from the
curb to the point of impact. (/d. at 189.) Using a standard walking speed for a male of 60-plus
years of age, approximately three miles per hour, it would have taken Sheehan five seconds to
walk from the curb to the point of impact. (/d. at 206.) For the entire five seconds that Sheehan
was walking across the street, according to Jackson, Sheehan was in Lloyd’s line of vision and
Lloyd had enough time to bring the truck to a complete stop, to avoid hitting Sheehan. (Id.)
Further, Jackson opined that Sheehan had the right-of-way at the intersection at the time of the
occurrence because he had the light and was attempting to cross Des Plaines Avenue in what
Jackson referred to as an “unmarked crosswalk,” that is, the area directly in front of the stop line
for northbound traffic on Des Plaines Avenue. (id. at 203-04.)

The “fishhook turn” is not consistent with any standard turning radius, but would actually
require more time to execute because it is a more complicated turn, giving the driver even more
time to observe a pedestrian. (/d. at 189.) On cross examination, Jackson acknowledged that
when a truck driver is making such a difficult maneuver, however, the driver is more apt to give his
full attention to the turning process, which includes where the trailer is. during the course of the tum.
(Id. at 213.) In addition, Jackson stated that the end of Lloyd's turn was a critical time because

Lloyd had to make certain that the trailer wheels did not make contact with the light post. (/d. at

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