A First-Impression Analysis of the Terms Present, Potential Hazard, and Close Proximity under the Illinois Vehicle Code

 

By Hon. Kenton J. Skarin

 

In the case of first impression, People v. Mulvey, DuPage Case No. 2019 TR 73438,1 the Defendant was found guilty of Speeding in a School Zone in violation of the Illinois Vehicle Code at 625 ILCS 5/11-605(a) following a bench trial before Judge George A. Ford2 on October 24, 2019. The statute in question prohibits, in relevant part, speeding in a school zone “when school children are present and so close thereto that a potential hazard exists because of the close proximity of the motorized traffic.”3 The only issue in dispute was the pure legal question of whether the undisputed location of the school children was sufficient to find beyond a reasonable doubt that the school children were “present” such that a “potential hazard exist[ed] because of the close proximity” of traffic.

 

Background

The uncontested facts show that on August 30, 2019, the Defendant was clocked on radar traveling 43 miles-per-hour on Medinah Road in DuPage County in a properly marked 20 mile-per-hour school zone during school hours. There was no dispute that the radar was tested and functioning properly. The only school children in the area were “approximately 200 feet west of Medinah Road as the children were being dropped off by school buses, or otherwise standing or walking outside the front of the school.”4 The school building itself “was to the Defendant’s right, obscuring his view of any children.”5 In addition, the Defendant saw the signs indicating a school zone on the day of the incident and fully understood the meaning of those signs.6

 

Discussion

In determining what any law requires, all courts “start, of course, with the statutory text and proceed from the understanding that ‘[u]nless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning.’”7 Thus, while the “cardinal rule of statutory construction is to ascertain and give effect to the legislature’s intent,” analysis “begins within the statutory language, which remains the best indication of that intent” and “must be afforded its plain, ordinary, and popularly understood meaning.”8 “When the language [of a statute] is unambiguous,” courts must apply the statute “as written without resorting to other aids of construction.”9

 

The statutory text at issue in this case makes clear that school children must be “present” for the law to apply. It then further adds that school children must also be “so close... that a potential hazard exists because of the close proximity of the motorized traffic.”10 As a result, the statute requires more than mere presence. It also requires a “potential hazard” flowing from the “close proximity” of drivers. The court must therefore, interpret these three key phrases - “present,” “potential hazard,” and “close proximity” and apply them to the undisputed facts of this case.

 

There are six reported decisions citing 625 ILCS 5/11-605. Unfortunately, none of those decisions addressed any of the phrases at issue here. In addition, while there is an identically worded statute requiring drivers to yield the right-of-way at school zone crosswalks,11 no reported cases have interpreted it at all. Therefore, the court turns as a matter of first impression to the common usage of the words.

 

“Present”

Webster’s dictionary defines “present,” among other things, as “being in view or at hand.”12 Black’s Law Dictionary likewise defines the term as “Now existing; at hand.”13 An old Illinois Attorney General opinion interpreting a prior version of the Speeding in a School Zone statute relied in large part on similar dictionary definitions to conclude that students were not “present” when they were inside the school building.14 An Attorney General opinion is “not binding on the courts,” but “a well-reasoned opinion…is entitled to considerable weight, especially in a matter of first impression in Illinois.”15 Although the Opinion here addressed a prior version of the statute and did not address school children outside, it is helpful to note that it concluded that “presence” meant “actual physical presence of children in the streets or in the school zone.”16 This analysis is consistent with the common usage of the word “present.”

 

Further, several cases discuss at length what it means for children to be “present” in the context of addressing the heightened duty of due care drivers owe to children.17 While the due care statute itself does not use the word “present,” courts have explained that the applicability of the higher duty of care turns on “knowledge of [children’s] presence.”18 Thus, in Choe, the court held that the driver of a semi-truck that struck and killed a child on a bicycle owed a heightened duty of care because he had seen the decedent child riding her bicycle some “250 to 300 feet” away shortly before the accident occurred.19 The child was “present,” even though out of sight of the driver at the time of the accident, such that the driver knew or should have known that he owed the duty.

 

Other cases similarly hold that a Defendant owes a duty of care if the Defendant knew that children were likely to be present. As the Choe court explained, the “special duty of care frequently attaches despite the driver’s not having seen the child.”20 In Stowers, the Second District Appellate Court affirmed a verdict in favor of a child run over by a truck while playing.21 The driver and his accompanying helper had seen children “at a point some 200 feet south of where the accident occurred” while they were loading the truck some time before the accident.22 The court explained that “if the driver has knowledge or should, under the circumstances, have had knowledge of [children’s] presence[,] he may in a particular case be liable even though he did not see the child in time to prevent the injury.”23 The fact that the driver did not see the child at the time of the accident did not change whether children were likely to be present, nor did it relieve him of his duty of care.

 

Similarly, in Toney a police car struck and injured a five-year-old who walked into a street from in front of an ice cream truck.24 The officer driving the car testified that he “first became aware of the plaintiff when she hit the right front fender of his vehicle as he began to pass the ice cream truck,” but also admitted “that he expected the presence of children and was looking for them as he approached the truck.”25 The “probable presence” of children “in the vicinity” was enough to put the Defendant on notice.26

 

These cases primarily address Defendants’ knowledge or constructive knowledge of children’s presence, but in doing so they necessarily also provide examples of what it means for children to be “present.” Thus, in Choe and Stowers the Defendants did not see the victims at the time of the accident. However, they had seen the victim or other children shortly prior to the accident, which the courts used to support their knowledge of children’s presence. In Choe, the Defendant saw the victim “250 to 300 feet” away,27 and in Stowers the driver similarly saw “several” children, “some 200 feet south of where the accident occurred.”28 In Toney, the police officer Defendant never saw the victim at all, but admitted that he knew children were likely to be present.29

 

Putting these authorities together, the best reading of 625 ILCS 5/11-605(a)’s requirement that children be “present” is that they be “at hand” or in the vicinity of the activity at issue. That is the definition provided by dictionaries, the Attorney General opinion, and by the duty of care cases. While Webster’s dictionary also refers to “being in view,” it uses the disjunctive “or,” showing that “in view” is just one way to be present, not a requirement. The best understanding of that phrase is a reference to a common way to show presence—if people are visible, that is generally strong evidence that they are “present.” Choe, Stowers, and Toney further show that someone need not be visible to be there. Physical proximity, not consciousness by a Defendant, is key.30

 

“Potential Hazard” and “Close Proximity”

The statute does not stop with presence alone. Instead, it uses the conjunction “and” to add an additional requirement that the State must satisfy to secure a conviction. School children must be “so close… that a potential hazard exists because of the close proximity of the motorized traffic.”31 This means that physical location near an alleged speeder is not enough. Instead, there must also be a statutorily defined risk to the school children posed by that speeding motorist.

 

The relevant statutory terms are “potential hazard” based on “close proximity” of traffic. The terms appear only in the present statute and in the school crosswalks cited earlier.32 As a result, there do not appear to be any cases interpreting either of these phrases. Nor does the 1974 Attorney General opinion address them, since they were not included in the then-current version of the statute.

 

As to “potential hazard,” Black’s Law dictionary defines “hazard” as “danger or peril; esp., a factor contributing to a peril” and cross-references “peril” as well.33 In turn, it defines “peril” as “Exposure to the risk of injury, damage or loss; a danger or problem in a particular activity or situation.”34 “Potential” is an adjective defined as “Capable of coming into being; possible if the necessary conditions exist.”35 Thus, the phrase designates a lesser degree of certainty, suggesting possibility of danger and, even then, only if something else occurs.

 

Considering these definitions, the risk addressed by the law need not be immediate or even particularly likely to occur. A hazard is a latent danger, and a “potential hazard” is a doubly uncertain risk. It is one that creates the possibility of injury, damage, or loss if additional facts develop. The effect of combining these two words in the Speeding in a School Zone statute is to reduce the risk that must be shown for the statute to apply (and thus reduce what the State must prove to secure a conviction) to a possibility that danger could occur if something else went wrong - if a child ran into the street or if a speeding driver lost control and left the roadway, for instance.

 

The layout of the area where an incident occurs obviously contributes to the potentiality of a hazard caused by nearby traffic. Children separated from the street only by a field are at greater potential hazard than children separated by a chain link fence, who in turn are at greater potential hazard than children behind a brick wall. But the inquiry a court must make in any case is the same. Given the location of school children in the area, the topography, and any barriers between them and passing motorists, a court should ask whether it is possible that something could go horribly wrong such that a child could be endangered by cars going by. If the answer to that question is yes based on the facts, then a potential hazard exists under the law.

 

Of course, the law also requires a particular type of potential hazard. The risk prohibited must “exist because of” the “close proximity of the motorized traffic.”36 In law, the phrase “because of” connotes causation.37 “Proximity” is “[t]he quality, state, or condition of being near in time, place, order, or relation.”38 Likewise, “close” is “being near in time, space, effect, or degree.”39 The terms are almost completely synonymous, and both reference nearness. In other words, the possible risk to which school children are exposed must be due to the physical nearness of traffic.

 

Defendant rightly points out that “close” and “proximity” are nearly synonymous.40 But he takes the term “close proximity” in isolation to argue that school children “must be extremely close in proximity to motorized traffic.”41 The full context of the statute is more nuanced than that. There are two requirements: (1) the presence of children and (2) a “potential hazard” to those children due to the “close proximity” of traffic. That does mean that the children, the risk, and the traffic must be geographically connected. But as the above discussion shows, there is no per se “extremely close” requirement. That argument reads too much into the statutory language.42

 

Applying the Prohibition on School Zone Speeding

Under this interpretation, the undisputed evidence at trial met the statutory elements beyond a reasonable doubt. The school children in question were two hundred feet away and therefore comfortably “at hand” within the meaning of the statute. The fact that the school children may not have been immediately visible to the Defendant does not change that they were “present.” Nor is it relevant that the Defendant admitted that he saw the posted school zone speed limit signs and knew what they meant, for there is no mens rea requirement in the statute. Put another way, the Defendant’s knowledge or mental state is no part of the statutory prohibition. Thus, neither the Defendant’s argument that he never saw the children,43 nor the State’s claim that he had imputed knowledge of their presence,44 matters. The children here were “present” regardless.

 

Those school children were also exposed to a potential hazard due to the close proximity of traffic; and therefore, met the second requirement at issue here. As explained above, the potential hazard element is a relatively low bar. Speeding motorists passing a school where children are loading and unloading from buses and walking or standing around pose at least the possibility of danger to those students, particularly since the statute’s language shows that the risk need not be immediate, only potential. While the evidence in this case suggests that a school building separated the Defendant from the school children, the chaos of loading school buses is such that something could easily go wrong. There was no indication that students were enclosed in a fence, behind a wall, or otherwise protected from potential hazard. They were free to wander from the loading area, as children are likely to do, and quickly be in the path of Defendant’s speeding automobile. That is a potential hazard due to nearby traffic, and the State met its burden of proof on this point.

 

Conclusion

For the foregoing reasons, the Defendant’s Motion to Reconsider is denied.


1. People v. Mulvey, No. 2019 TR 73438 (18th Jud. Cir. Ct. Ill. filed Sep. 3, 2019) (Order denying Def.’s Mot. to Recon., Dec. 3, 2019).

2. The authoring judge did not preside at the underlying trial. On that day, Judge Ford was temporarily covering the authoring judge’s court call as a matter of court scheduling pursuant to normal court procedures. That temporary assignment having ended, the case is now routinely back before the authoring judge.

3. 625 ILCS 5/11-605(a).

4. People v. Mulvey, No. 2019 TR 73438 (18th Jud. Cir. Ct. Ill. filed Sep. 3, 2019) (Def.’s Mot. to Recon. ¶ 4(e), Nov. 7, 2019).

5. Id.

6. People v. Mulvey, No. 2019 TR 73438 (18th Jud. Cir. Ct. Ill. filed Sep. 3, 2019) (State’s Resp. to Def.’s Mot. to Recon. ¶ 3, Nov. 18, 2019).

7. Sebelius v. Cloer, 569 U.S. 369, 376 (2013) (quoting BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006)).

8. Demeester’s Flower Shop and Greenhouse, Inc. v. Florists’ Mut. Ins. Co., Inc., 2017 IL App (2d) 161001, at *¶ 11 (citing cases).

9. Id.

10. Supra at note 3.

11. 625 ILCS 5/11-1002.5(a).

12. See, Merriam-Webster (2019), available at  www.merriam-webster.com/dictionary/present (adj. definition 2(a)).

13. Black’s Law Dictionary (11th ed. 2019).

14. See, S-706 Op. Ill. Att’y Gen. 3-4, 6 (Feb. 25, 1974).

15. Burris v. White, 232 Ill.2d 1, 8 (2009) (citing Bonaguro v. Cty Officers Electoral Bd., 158 Ill.2d 391, 399 (1994)).

16. Supra at note 14 at 3-4. Several other statutes within the Illinois Vehicle Code use the word “present” in a similar sense—for instance prohibiting speeding in a highway construction zone when workers are “present,” 625 ILCS 5/11-605.1(a), and prohibiting speeding or stopping for traffic control devices near certain parks and recreation facilities “when children are present.” 625 ILCS 5/11-605(b) & (c). Unfortunately, these statutes do not define the term, and the three reported cases addressing highway construction zones do not discuss what it means for a worker to be “present.” See People v. Rice, 2017 IL App (2d) 160224-U; People v. Neice, 2011 IL App (4th) 110010-U; People v. Jarzyna, 2011 WL 10414078 (2nd Dist. 2011). No reported cases have interpreted the park and recreational facilities statute.

17. See, 625 ILCS 5/11-1003.1 (drivers owe duty of due care to others and “shall exercise proper precaution upon observing any child”).

18. Choe v. Ashdown, 808 F. Supp. 1342, 1345 (N.D. Ill. 1992) (applying Illinois law).

19. Id.

20. Id. (citing Toney v. Marzariegos, 166 Ill. App. 3d 399, 403 (1st Dist. 1988)); Stowers v. Carp, 29 Ill. App. 2d 52, 65 (2nd Dist. 1961).

21. Stowers, 29 Ill. App. 2d at 56.

22. Id. at 65.

23. Id.

24. Toney, 166 Ill. App. 3d at 401.

25. Id. at 402.

26. Id. at 403. See also, Merca v. Rhodes, 2011 IL App (1st) 102234, at *¶ 55 (2011) (same).

27. Choe, 808 F. Supp. at 1345

28. Stowers, 29 Ill. App. 2d at 65.

29. Toney, 166 Ill. App. 3d at 402-03.

30. The State is correct that there is no maximum distance at which school children cease to be “present” under the statute. See, State’s Resp. to Def.’s Mot. to Recon. ¶10. The above discussion points out only that there is case law suggesting that children can be “present” at two to three hundred feet. In the similar park zone speeding statute, the Legislature, in fact, has provided a maximum distance requirement, which states that children must be present “and within 50 feet.” See, 625 ILCS 5/11-605.3 (b) & (c). The fact that the present law does not contain that limitation is additional support that no such bright line limitation was intended here.

31. 625 ILCS 5/11-605(a).

32. 625 ILCS 5/11-1002.5.

33. See, Black’s Law Dictionary (11th ed. 2019).

34. Id.

35. Id.

36. 625 ILCS 5/11-605(a).

37. See e.g., Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 350 (2013) (quoting cases discussing “because of” as indicating causation in federal Title VII action).

38. Black’s Law Dictionary (11th ed. 2019).

39. Merriam-Webster (2019), available at http://www.merriam-webster.com/dictionary/close (adj. definition 10).

40. People v. Mulvey, No. 2019 TR 73438 (18th Jud. Cir. Ct. Ill. filed Sep. 3, 2019) (Def.’s Mot. to Recon. ¶¶ 8-10, Nov. 7, 2019).

41. People v. Mulvey, No. 2019 TR 73438 (18th Jud. Cir. Ct. Ill. filed Sep. 3, 2019) (Def.’s Mot. to Recon. ¶ 11, Nov. 7, 2019).

42. In turn, the State relies in part in its Response on the legislative purpose of the statute. See, State’s Resp. to Def.’s Mot. to Recon. ¶¶ 6-10. The Court agrees that the legislative purpose, as demonstrated by the text of the law, is to protect school children. However, that purpose adds little to the interpretation because the Legislature, itself, carefully defined in the law when a driver is to slow down to meet its statutory goal. Thus, the inquiry starts and ends with the text that the Legislature enacted.

43. People v. Mulvey, No. 2019 TR 73438 (18th Jud. Cir. Ct. Ill. filed Sep. 3, 2019) (Def.’s Mot. to Recon. ¶ 12, Nov. 7, 2019).

44. People v. Mulvey, No. 2019 TR 73438 (18th Jud. Cir. Ct. Ill. filed Sep. 3, 2019) (State’s Resp. to Def.’s Mot. to Recon. ¶¶ 3, 11, Nov. 18, 2019).

 

Kenton J. Skarin is an Associate Judge of the 18th Judicial Circuit. He previously practiced at Jones Day, served as Deputy General Counsel to the Governor of Illinois and clerked for Justice Clarence Thomas. Judge Skarin graduated first in his class from Northwestern University School of Law. He lives in Wheaton.