MARILYN HOLM v. THE STATE OF ILLINOIS (2001)

OPINION

This cause is before the Court on Claimant's petition seeking damages against Respondent for injuries suffered as the result of a fall after stepping into a hole while crossing a street. Claimant alleges that the negligence of Respondent was the direct and proximate cause of her personal injuries. Claimant previously filed a complaint against the Village of Arlington Heights (Village) and the County of Cook in the Circuit Court of Cook County. In support of its motion to dismiss, brought pursuant to Section 6-619(9) of the Code of Civil Procedure, the Village cited the deposition testimony of two of its officials to establish that the location of the alleged defect in the roadway was in the right-of-way owned and maintained by the State. The Circuit Court dismissed the case.

Respondent filed two separate motions to dismiss the Claimant's petition. Both motions were denied. The second motion disputed the Claimant's factual assertion that the location of the subject hole was on State owned or controlled property. The Court returned the case on November 2, 1999 directing that a trial be conducted.

On March 23, 2000, a hearing was conducted at which Claimant appeared and testified. Claimant presented five exhibits, including stipulated evidence and photographs of the area where she was injured. Respondent presented two witnesses and three exhibits.

On April 15, 1992, Claimant, MARILYN HOLM, at the age of 62, was walking with a friend, MILLICENT BALTUS, on a sidewalk along the north side of Kensington Street in Arlington Heights. It was 6:00 p.m. and they were returning to Millicent's home after dinner at Eros, a local restaurant. As they walked eastward toward Derbyshire Lane, a street running north from its intersection with Kensington, Claimant noted that it was a busy intersection. She watched the traffic while a car turned in front of her from Kensington on to Derbyshire. She proceeded to cross Derbyshire and after a short time into the concrete intersection she felt her left foot go into a hole. Her foot started to slide and she fell forward landing on her left shoulder.

Claimant described the hole as being four inches deep and 13 inches across. It was located in the corner of a big square patch. There was loose gravel in the hole. There were no warning signs. She had not seen the hole because of her concern of watching traffic and on the way to the restaurant they had traveled along the south side of Kensington. She lived in Wheeling but had walked throughout Arlington Heights; however, this was the first time she had ever walked down the street at this location.

Immediately after the fall, Claimant was dazed and shaken. Two cars stopped to lend assistance and one drove Claimant and Millicent to Millicent's house.

Millicent took Claimant to Holy Family Hospital. Claimant was experiencing pain in her left shoulder. Claimant's shoulder was x-rayed and immobilized. She was referred to Dr. Katz. The day after the accident she went to see Dr. Katz. Although she was on pain killers, she experienced throbbing pain at times in her shoulder. Dr. Katz prescribed Vicodin, kept her arm immobilized and told her to return when the swelling reduced.

When Claimant returned in two weeks, Dr. Katz gave her two therapy exercises to do at home. She was still on pain killers and the immobilizer was kept on her arm unless she was doing the exercises. Claimant suffered a three-part fracture of the left humeral head with resulting impingement of the left rotator cuff. The parties stipulated that these injuries are causally related to her fall. She saw Dr. Katz until July 1993. She was still having a lot of pain in her shoulder. After an MRI, she was scheduled for surgery to correct an impingement. The surgery was canceled and she later decided, after consultation with another doctor, to live with the condition. Claimant's medical bills totaled $2,052.27.

Claimant cannot raise her arm as high as she could prior to the accident and feels pain when she tries to do it. She was an avid swimmer and played golf an average of once a week. She now has difficulty with swimming and does not golf because of the pain in her left shoulder.

At the time of the accident, Claimant was employed by Coca-Cola Company as an administrative assistant. She missed five full weeks of work and worked only half time for the sixth week. She lost approximately $2,700.00 in wages.

Fourteen photographs, taken by the Arlington Heights Police Department on April 16, 1992, showing the hole were admitted into evidence by stipulation. Although there is not a painted crosswalk across Derbyshire, it is clear that the hole would be in the center of the crossing area.

The testimony of Mark Schoeffmann, Director of Engineering for the Village, was presented through his deposition testimony by stipulation of the parties. He stated that a review of all of the appropriate Village records led him to believe that the State had jurisdiction over the location of the hole at the time of the accident. He stated that the location of the hole was in the State owned right-of-way of Kensington and therefore the State had maintenance responsibility at the time of the accident, no agreement existed that would have transferred maintenance responsibility to the Village. He stated that the acceptance of the subdivision encompassing Derbyshire, and abutting Kensington, into the village decades earlier did not transfer jurisdiction or maintenance responsibility of the portions in the Kensington right-of-way to the Village.

Mr. Robert Burns, Acting Director of the Department of Works of the Village, provided testimony via his deposition by stipulation of the parties. After the accident, he was instructed to investigate to determine who had made the patch. He remembers that a determination was made that Illinois Bell had probably made the patch after a repair to its cable that was aligned in the proximity. There was no indication, when the patch was made. He stated that the hole was clearly in the State's right-of-way upon a review of the Village maps and documents. He believes that the State had maintenance responsibility. Neither Mr. Schoeffmann nor Mr. Burns was aware of any accidents or complaints in relation to the location of the hole.

A transcript of a 1993 discovery deposition of Mr. Allen Sander, Director of Public works for the Village at the time of the accident, taken during the Circuit Court case was presented by stipulation of the parties to be his testimony in the case at bar. The State had a 100-foot right-of-way along Kensington, extending 50 feet to the north and to the south of the centerline. He concluded that the subject hole was within the State right-of-way and therefore the State had maintenance responsibility for it. For at least 25 years prior to the time of the accident, the Village did not have any agreement with the State requiring the Village to repair or maintain any of the crosswalks located in that right-of-way or to provide any maintenance at the intersection. For ten years prior to the accident, the Village had not owned constructed, maintained or repaired any of the same crosswalks.

The Village had received a letter from the State dated January 30, 1969 wherein it states that Cook County constructed Kensington Road and the State assumed and retains responsibility for maintaining it. There has been no change in the relationship between the Village and the State since Mr. Sander became Director of Engineering in February, 1969, and later Director of Public Works, in regard to maintenance responsibility of Kensington at the Derbyshire intersection. There are not any agreements between the State and the Village of repairs, other than a general agreement allowing the Village to do emergency repairs to its utility system, within the Kensington right-of-way at this intersection. The Village did place a temporary asphalt patch on the hole after the accident. The concrete patch, existing at the time of the accident had not been inserted by the Village. Mr. Sander believed Illinois Bell had installed the concrete patch.

Mr. Leslie Aling, Maintenance Operation Engineer for the Illinois Department of Transportation, (IDOT), is responsible for directing the maintenance activities for the area in question. The State has jurisdiction over the entire Kensington right-of-way, which only extends 33 feet north from the centerline west of the intersection but 50 feet north from the centerline on the east side of the intersection, according to Mr. Aling. He stated that in 1992 the Village was responsible for snow removal on Derbyshire up to the edge of the pavement of Kensington. In reliance upon a 1962 access permit, which imposed a duty of maintenance on the developer when he constructed Derbyshire as part of a subdivision development, Mr. Aling testified that the Village would be responsible for repairing any potholes. However, he acknowledged on cross-examination that the State has a duty to maintain any road in its right-of-way. He further acknowledged that there were no written agreements between the State and the Village transferring maintenance responsibility to the Village.

Prior to June 1992, Mr. Aling was not aware of any complaints or defects at the location in question. He believes the Village would have been responsible for the crosswalks. He agreed that the location of the hole was at the corner of a utility cutout. He was not aware of any requests to make any repairs at the location.

Mr. Michael Fitzgerald, IDOT Claims Manager for the region, reviewed the Incident Reports made from telephone calls to the IDOT Communication Center for the time period of 20 to 30 days prior to the accident. He did not find any complaints of defects at the location of the hole. He believed the hole was of the type that would have caused someone to notify IDOT. He believed it to be an unsafe condition.

Respondent argues in its brief that it is not responsible for Claimant's injuries because it neither controlled or maintained the crosswalk where the accident occurred. It asserts that the Village had maintenance responsibility for Derbyshire and such responsibility continued to the edge of the pavement of Kensington. Even if the State did have maintenance responsibility, Respondent denies liability because it did not have actual or constructive knowledge of the condition. Respondent contends that Claimant has failed to establish that Respondent's acts or omissions were the proximate cause of her injuries.

In order for Claimant to recover based upon a theory of negligence, she must prove that the State owed a duty to of care, a breach of the duty, and an injury proximately caused by the breach. Toliver v. State (1994), 47 Ill.Ct.Cl. 55. The Claimant must also prove that the State had actual or constructive notice of the pothole. Kirby v. State (1990), 42 Ill.Ct.Cl. 77. There is no dispute in this case that the hole existed. The Respondent does not deny that Claimant's fall, and injury to her shoulder, were caused by the hole. Additionally, there is no assertion by Claimant that Respondent had actual notice of the hole.

The uncontroverted evidence reveals that the hole is clearly on the right-of-way of a State road. Mr. Fitzgerald testified that he believed the hole created an unsafe condition. The State attempts to shift maintenance responsibility to the Village by arguing that the 1962 access permit granted to the developer of Derbyshire, as part of the development of subdivision, ultimately transferred maintenance responsibility to the Village. However, Respondent fails to establish how this purported transfer is made as a matter of law or that its theory is supported by the evidence. The evidence does not establish that maintenance responsibility was ever transferred to, or assumed by, the Village. Although Respondent argues that Illinois Bell should bear responsibility because the evidence tends to show that it made a utility cut and then patched it; however, there is no objective evidence that show the circumstances surrounding the utility patch. The State cannot shift its duty to all users of its highways to maintain them in a reasonably safe condition to a third party based upon this evidence.

The liability of Respondent in this case rests on whether the hole was the type and nature of a defect that constructive notice should be imposed on the State. To be in a dangerously defective condition, a highway must be in a condition unfit for the purpose for which it is intended. Schmidt v. State (1998), 50 Ill. Ct.Cl. 133. In Schmidt, the Court denied liability because the evidence did not establish that any accidents had occurred and no complaints were received by IDOT. In the case at bar, checking for complaints only for the time period extending 30 days proceeding the accident may be insufficient to prove lack of actual notice; however, Claimant certainly does not assert that the State had any notice of the hole at any time. To establish constructive notice, it must be shown that the road defect was substantial enough and existed for such a length of time that reasonable persons would conclude that immediate repairs or warning signs were necessary. Kelly v. State (1998), 50 Ill Ct. Cl. 146.

The Court in Eudaley v State (1995), 47 Ill.Ct. Cl. 86, denied a claim after determining that there was no indication of the length of time that a certain hole existed. In the case at bar, there is no indication of the length of time that the hole was in the condition it was on the date of the accident. A review of the photographs does not lead to the conclusion that the hole had previously been patched. The evidence in this case fails to prove that Respondent was negligent. The claim is hereby denied.

MITCHELL, J.