TERRY BRADY v. THE STATE OF ILLINOIS (2002)

OPINION

This cause is before the Court on Claimant Terry Brady's complaint seeking damages from the Respondent, State of Illinois, pursuant to Section 8(d) of the Court of Claims Act. On April 13, 1997 Claimant suffered personal injuries when he fell from an overpass on Harlem Avenue, Forest View, Illinois.

Hearing was held before Commissioner J. Patrick Hanley and he submitted a recommendation to the Court. The Court set the matter for oral argument and Respondent subsequently filed a Motion to Re-Open Hearing or for Sanctions based upon alleged discovery violations.

The Facts

Terry Brady testified that on April 13, 1997, at approximately 6:00 p.m. he went for a walk after dinner. He was walking on the sidewalk on the East side of the Harlem Avenue overpass where it crosses over Interstate 55. He stopped to rest and look at the traffic below. He leaned against the handrail and it collapsed. He fell 25 to 30 feet to the ground. He passed out and awoke later. He laid there until the next day when he crawled back up the slope to Harlem Avenue because he was afraid of approaching the traffic on the Interstate. He stated that a concrete barrier prevented persons on the Interstate from seeing him lying in the ditch and he was afraid to approach the Interstate.

Claimant received severe injuries to his left leg, multiple deep abrasions on the back of his head and broke his jaw. His medical bills, including Loyola Hospital and the Rehabilitation Institute of Chicago, totaled $213,459. He was at the hospital for 23 or 24 days before going to the Institute. He was working as a cement mason for James McHugh Construction Company. He claims lost wages. At the time he was earning $29 per hour or $40,000 a year. He stated that he has never recovered, cannot bend his leg and was unable to return to work.

The testimony of James Tippett, an IDOT bridge inspector, indicated the bridge at issue underwent a major rehabilitation in 1990. Mr. Tippett testified that the bridge was inspected yearly from 1990 through 1994 pursuant to IDOT's policy at that time. Some bridges were inspected every two years depending upon their age, condition and the amount of traffic carried. IDOT adopted a biennial inspection policy because of new federal inspection guidelines in 1994-1995. The subject bridge was due to be inspected in late 1996 per Mr. Tippett. He did not know exactly why it was not inspected until July, 1997 with others in the area.

Mr. Tippett stated his inspection would normally take about 90 minutes. He generally did not physically test the handrails during inspections of the bridges unless visual inspection indicated bolts were loose or pulled out or the rail itself appeared to be damaged by collision or dents. No physical test was required by rule or policy. Mr. Tippett testified that his primary focus was to examine the bridge deck upon which vehicles travel and the super-structure under the bridge for visible defects. Mr. Tippett had no knowledge that this incident had occurred and recalled no previous incidents of a railing falling in circumstances akin to Claimant's allegations within the Chicagoland area.

After the incident in question, Sarah Wilson, a professional engineer and an IDOT supervisor of bridge maintenance, inspected the bridge in question after she saw the missing handrail while passing by on the Interstate. It was her opinion after an inspection of the parapet that the bolts from the handrail were removed by someone. The handrail is aluminum and she knew people at times stole them from other bridges from her experience at IDOT. The parapet to which the handrail was attached was in good condition after the accident per Ms. Wilson's inspection and there was no indication it had been damaged by collision or the rail failed due to normal wear and tear factors.

Ms. Wilson stated the bridge was not inspected in 1996 due to a computer classification error which was corrected. She testified as did Mr. Tippett that the bridge inspections in 1994 and 1997 were very similar. Both showed the bridge to be in good condition and no defects in the parapet or railing (which had been replaced after the Claimant fell and prior to the July, 1997 inspection report). Both IDOT engineers acknowledged that the 1994 and 1997 reports indicated bolts under the bridge, in no way affecting the railing, were noted as missing. These bolts were part of the expansion joint system of the superstructure. Ms. Wilson stated inspection guidelines for bridges in her section are from 12 to 48 months. No further information was adduced as to the various factors determining inspection dates or specific IDOT or federal policies and regulations applicable thereto.

IDOT records were searched and no reports of defect or damage were found for 1994-1997. No repairs of the railings in question were performed during that period.

The Law

Claimant argues that the State is charged with maintaining its highways in a reasonably safe condition and with using reasonable diligence in doing so. This duty of due and reasonable care extends to maintenance of the shoulders of roadways for the uses for which they are intended. Keller v. State (1982), 36 Ill. Ct. Cl. 99; Kolski v. State (1976), 31 Ill. Ct. Cl. 307.

Respondent relies on well-settled law in noting that the State is not an insurer against all accidents which may occur by reason of the condition of hits highways. Hanawell v. State (1995), 47 Ill. Ct. Cl. 270. To prevail, Claimant must prove by a preponderance of the evidence that the State breached its duty of reasonable care and such breach was the proximate cause of his injuries. He must also show that the State had actual or constructive notice of the defective condition. Id.

Claimant argues that the State caused the defective condition by either failing to utilize sufficient bolts to attach the handrail or by failing to maintain the bolts. Claimant contends that the photographs lead to the conclusion that the anchor areas for the handrail show that the bolts rusted or broke off. The cases cited by Claimant involve guardrails where the Court determined that the State had actual notice of the defective conditions, circumstances not present here.

Respondent asserts that Claimant has failed to meet his burden, has not demonstrated notice to the State of a defective condition and lied about how the accident happened. Respondent's witnesses believe the bolts were removed. Respondent asserts that the evidence leads to the conclusion that Claimant was attempting to steal the handrail when he fell. The Claimant's explanation as to why he climbed up the slope to Harlem instead of getting the attention of motorists on the Interstate undermine his version of the incident, according to Respondent. Respondent contends that no concrete barrier existed at the site which Claimant stated shielded him from the view of Interstate motorists.

While we agree with Respondent that Claimant's version of events is improbable, we find no credible evidence of any illegal act or attempt to remove the rail by Claimant prior to his injury. Similarly, the evidence regarding the manner in which the rail's bolts either failed or were removed by unknown parties is insufficient to lead to a legal conclusion as to negligence in attaching the handrail by Respondent or indicate that the rail was vandalized.

There is no evidence of record to support a finding of actual notice of a defective condition to the Respondent. In order to establish constructive notice, the Hanawell Court stated that a claimant must show that the defect was of such a nature that the State should have known of its existence in the exercise of due diligence. Id. at 275. To find Respondent had constructive notice, it must be shown that the defect was substantial enough and must have existed for such a length of time that reasonable persons would conclude that immediate repairs should be made, or in the alternative, warning signs posted. Miley v. State (1997), 50 Ill. Ct. Cl. 41. The Miley Court noted that case law required an affirmative showing that the defect has existed for a length of time. This is the rule of law in this Court.

There is no evidence of record as to the length of time the defect herein existed prior to Claimant's injury. Constructive notice is to be determined on a case by case basis. Claimant argued that the photos submitted show signs of rust at the parapet attachment area and thus lead to a conclusion that the defective condition existed for some time. Respondent's witnesses provided testimony rebutting this presumption based upon their experience and opinions. Clamant introduced no expert testimony or legally cognizable references to support his conclusions.

The law also requires Respondent to utilize due diligence in the maintenance of its highways. The sidewalk along this highway was intended to be used by pedestrians. The handrail was apparently placed on the overpass to protect and assist pedestrians. The IDOT personnel were also charged with inspecting the bridge. The Respondent's witness acknowledged that the bridge was not inspected for the two years prior to the accident. Respondent's breach of timely inspection is not sufficient to impute a finding of negligence or proximate cause under the facts of this case due to the peculiar facts and lack of relevant evidence before us from either party. The testimony provided by the respective IDOT engineers when taken as a whole indicates that the inspections they performed in the course of their duties were for the purpose of prioritizing federally funded renovations or repair projects primarily concentrating upon the condition of the superstructure and bridge deck. Put simply, their duties were clearly not to ascertain the existence of potholes but to determine the intrinsic integrity of the structure. The forms for inspection do not indicate a purpose for more mundane repairs normally associated with highway maintenance. The evidence that inspections are federally required only every two years lends credence to this conclusion. Unfortunately, we have no evidence of records as to the actual IDOT and federal statutes, policies or regulations applicable to the subject inspections and may not reasonably infer the severity or consequence of failure to perform the subject inspection in late 1996 versus mid-1997.

Claimant's contention that the bridge had not been inspected for three years and thus infers negligence is not supported by the evidence he introduced. The record shows inspection was due in late 1996 under the vaguely described rules of IDOT and the federal government applicable in 1994-1997. No proofs of record indicate that a timely inspection in 1996 would have prevented Claimant's injury. Claimant has not established nor argued the applicable standard for the exercise of due care by IDOT as to industry standards for inspections of handrails. Unfortunately, Respondent failed to address these issues as well but Claimant bears the burden of proof. Failure to inspect a bridge for three years appears a breach of reasonable care on its face save for the only regulations of record as Claimant argues. Claimant did not plead res ipsa loquitor but his brief may be construed as seeking award under the doctrine. As held in Miley, Id. at 47, the first element of proof under the doctrine is exclusive control over the instrumentality causing injury. A handrail on a city street is not within the exclusive control of Respondent and we decline to apply the doctrine of res ipsa loquitor.

Claimant did not provide proof of his employment at the time of his injury. He did not testify as to his general health proceeding this incident and failed to prove up his contentions of permanent disability.

We acknowledge and regret the severe injuries Clamant suffered on or about April 13, 1997. However, the record before us does not support Claimant's claim by a preponderance of the evidence as required in an action against Respondent as outlined above. While Clamant might prevail on the rather mysterious and unusual elements of his claim against a private party, public policy has dictated a separate standard for notice and due care by governmental entities which we are obliged to follow. The State may not be expected to insure the safety of persons or vehicles on its roadways nor does it have unlimited funds to perform its duties.

This claim is hereby denied and dismissed with prejudice.

JANN, J.