MIN AH CHO v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF THE STATE OF ILLINOIS (2001)

OPINION

This cause comes before the Court upon Claimant's petition seeking damages in tort for alleged negligence by Respondent, the Board of Regents, Illinois State University. A hearing was conducted by Commissioner Michael Shadid on February 4, 2000. The parties have submitted briefs in support of their positions and the Court has reviewed all exhibits of record.

Facts

On November 17, 1994 the Claimant, Min-ah Cho, while a graduate student at Illinois State University in Normal, Illinois, and while participating in a class assignment as a member of a choral group, fell from a set of temporary risers assembled on a stage at Braden Auditorium, a building owned and maintained by Illinois State University. Min-ah Cho fell from the end of a riser to the top of a metal folding chair, inadvertently placed next to the risers, resulting in a ruptured spleen, which was later removed, resulting in significant Keloid scarring, pain and emotional trauma.

Claimant's medical bills, submitted without objection at hearing are $27,986.66. The evidence indicates that Respondent's student health insurance covered all but about $2,300 of the total fees and services including treatment of the Keloid scarring by a reconstructive surgeon. The evidence further indicates that Claimant's scarring is permanent and she may suffer continuing health problems from the loss of her spleen as well as residual pain from the Keloid scarring.

Ms. Cho appeared at hearing and testified. On the date in question, she was in the first semester of studies for her master's degree at ISU. She was 27 years old and had completed her undergraduate work in South Korea in 1990 where she taught music until 1993. Claimant moved to the U.S. in 1993 and stated she was still acclimating to cultural differences in 1994. Claimant was to participate in a seasonal chorale which included students and volunteers from the community under the direction of the ISU Music Department.

November 17, 1994 was to be the first dress rehearsal for the actual performance on or about November 20, 1994. Claimant arrived about 30 minutes early for the rehearsal, consulted a seating chart and ascended the stage to the temporary risers where her seat was located.

The risers consisted of eight rows of chairs: one row on the floor and seven rows on risers. The risers were set up with chairs on them. The risers had 22 chairs per row. The risers were set up with an eight inch multiple tread height such that the risers height resembled a step. As such, the first row of chairs were on the floor, the second row was on a riser the height of eight inches, the third row (second riser) was 16 inches high, the fourth row (third riser) was 24 inches high, the sixth row (fourth riser) was 32 inches high. Surrounding the riser platform was an acoustical shell. There was space between the ends of the risers and the shell ranging from a few inches at the top riser to several feet as the risers descended to the floor in a pyramid type configuration. There were no handrails at the ends of the risers.

Though the specifics are contested by the parties, it is not disputed that Claimant was to be seated a few rows from the top riser near the end of a row. She ascended the aisle on the right side of the risers to reach her seat. She had never been on such a platform before that date. As she climbed Claimant stated she observed a large woman already seated about two rows below her assigned seat. Claimant stated she was very conscious of trying to avoid bumping into the woman as she was moving past her. Clamant has no recollection beyond then of taking a mis-step off the riser and falling upon a folding chair on the stage floor some distance below. She landed on the chair in the space between the risers and the acoustical shell. She was removed for hospitalization by paramedics and understandably quite discomfited. Claimant was hospitalized for a spleenectomy for about one week.

Unfortunately, we have no actual eyewitness testimony as to Ms. Cho's fall. Additionally the evidence depositions offered by Claimant were not taken until 2-1/2 to 5 years after the incident resulting in less than clear recollections by most witnesses as to the most relevant facts at issue. The height of the risers and number of risers varied almost comically.

Kim Mortimer's deposition was admitted as Claimant's Exhibit #1. Mr. Mortimer was a fellow ISU student and going to his seat when Claimant fell. He appears to have been the person nearest but had his back to her and spun around to try to help her when he heard a noise. He estimated he was three to four feet away and reached out unsuccessfully to grasp Claimant's hand. He was to be seated two rows above Claimant on the last riser. He made no mention of seeing the woman Claimant attempted to avoid. Mr. Mortimer recalled feeling trepidation at climbing the risers as there were no handrails and he was by his own description older and heavier than when he had last had occasion to do so some 10-12 years earlier. He recalled kick rails or toe boards at the rear of the top riser but was not sure if they were in place on the ends of risers. However, he felt the kick rails would not be sufficient to prevent a person from falling as Ms. Cho had.

Julie Dawson's evidence deposition was admitted as Claimant's Exhibit #3. Ms. Dawson was a classmate and Ms. Cho was her only friend at ISU at the time of the accident. Ms. Dawson arrived well after the incident and was quite distressed by her friend's injury. Ms. Dawson's recollection was sharpest in regard to a lack of kick rails at the rehearsal. She described the kick rails with great specificity but wasn't sure of the attachments as Braden was only one auditorium where such devices are used in her experience.

Michael Dickson's evidence deposition was admitted as Claimant's Exhibit #5. Mr. Dickson was a student stage-hand on the date of Ms. Cho's injury and had helped in the stage assembly. He was present but did not see Ms. Cho fall. While he recalled the incident, Mr. Dickson did not have clear recollection of the particular set-up as he had worked on many during his tenure at the auditorium. (Dickson's deposition was taken January 26, 2000.) Students signed-up to work on the various shows and he does not recall the number of workers or their names on this particular date.

Mr. Dickson stated that kick rails are always installed at the ends of risers as standard procedure by ISU stage crews. He further stated that the crews assemble folding chairs on the risers according to a drawing or estimate the number needed when no drawing is supplied and that the chorale group sometimes moves chairs. ISU policy is not to leave chairs along the risers. The crews put the chairs only where specified on the stage and risers.

Mr. Steve Eddington testified at hearing. Mr. Eddington is the Director of Environmental Health & Safety for ISU. He has been so employed for 15 years. Mr. Eddington is a compliance officer in charge of 13 employees who work with the various ISU departments to assure compliance with employee health regulations including OSHA. Mr. Eddington has no personal knowledge of the incident and received various reports as part of his duties in student health insurance risk management. He did not personally investigate the accident and generated a memo with a statement of facts based primarily upon statements by Ms. Cho and Julie Dawson on November 23, 1994. The memo was to File-Student Accident and Eddington stated it was essentially an effort to establish a data base for future reference. The memo also stated there were no standards directly applicable to Claimant. Also, OSHA is not applicable to state agencies.

Mr. Eddington relied upon Claimant's statements that the riser she fell from was over 5 feet high when he stated that OSHA regulations for employees working at heights above 5 feet require full protection. Neither kick rails nor the hand rails commonly used for risers would meet the OSHA standard. The OSHA standard is intended to cover persons engaged in the performance of duties such as construction and requires substantial railings, harnesses and/or a safety net in consideration of the risk involved and equipment to be employed. OSHA and its equivalent state and local regulations do not apply to Cliamant herein per Mr. Eddington.

Respondent presented Mr. William A. Gordon, Technical Director of Braden Auditorium. Mr. Gordon was so employed and present when Claimant fell. He states kick rails were in place and that no hand rails were available for this staging as most of the risers were not manufactured to accept rails. Additionally, Mr. Gordon stated a failure to install the kick rails would be a deviation from ISU policy. He stated he did not know why the chair was at the side of the riser where Ms. Cho fell. Gordon stated he did not place it nor see who placed the chair in the area off stage of the risers. Mr. Gordon was engaged in moving orchestral instruments to the stage when Ms. Cho fell.

Claimant also submitted the evidence deposition of Dr. Randall Davidson, a purported expert witness risk assessor and risk management advisor in public assembly: and entertainment. No curriculum vitae was submitted nor were the witness education or qualifications adduced in deposition other than by broad general statements of the witness himself. Davidson testified without seeing the stage, risers or shell at ISU and derives his conclusions from the depositions of other witnesses, Mr. Eddington's memo and a catalog and owner's manual published in 1991 by the manufacturer of the risers used at ISU. The risers in question at ISU were purchased beginning in 1973 and only a few at the center of the stage were the model referenced by the 1991 manual. Essentially, Claimant's expert opined that OSHA regulations should apply to Ms Cho as an industry standard and ISU's set up violated the applicable standard. However, Dr. Davidson was unable to cite any legal citation, applicable regulation or commonly acknowledged industry standard in published form to support his opinion.

Respondent's expert witness, Mr. Mark Briggs, testified at hearing. Mr. Briggs has a degree in Technology of Industry Accident Prevention. He is also an Associate in Risk Management from the Insurance Institute of America and is a Certified Safety Professional and active in the American Society of Safety Engineers. Mr. Briggs worked in the insurance industry in industrial risk assessment and management for 12 years and has owned his own consulting firm for 5 years which concentrates upon work safety and health issues.

Mr. Briggs testified to consensus standards which are developed by industry groups to codify safe work practices. While these standards are not legally codified they represent the consensus of recognized practices in the affected industry. Mr. Briggs stated he had searched numerous databases, consulted the manufacturer of the risers and consulted other users of the same equipment to ascertain the existence of an industry standard. None were found to Mr. Briggs surprise. Mr. Briggs viewed a set up at ISU which was represented as the same as that upon which Ms. Cho suffered her fall in December, 1999.

Mr. Briggs testified that he made no review nor expressed any opinion as to ISU's safety policies for stage set ups. He stated that in reviewing purchase orders for the risers, consulting with the manufacturer and ISU personnel he concluded that many of the risers were not manufactured to accept side rails though some could be fitted with back rails.

Law

Claimant bears the burden of proving by a preponderance of the evidence that Respondent breached a duty owed Claimant which proximately caused the injuries complained of and that Respondent had actual or constructive notice of the hazard complained of which constituted a breach. Roels v. State, 47 Ill.Ct.Cl. 131 (1995); Ma v. State, 45 Ill.Ct.Cl. 180 (1993).

Claimant herein has failed to meet her burden of proof as to deviation from an applicable standard of care, deviation from standard ISU safety policy and constructive notice of a defective condition.

No citations were offered to support a finding that the OSHA standard argued by Claimant is transferable. See White v. State, 38 Ill.Ct.Cl. 1 at 4-5 (1984). The weight of the evidence is also contrary to Claimant's argument that OSHA would have been applicable if Ms. Cho had been an employee. Claimant repeatedly misrepresented the evidence in argument.

We simply lack adequate facts to find that ISU deviated from its own policies in assembling the risers. We have no evidence as to the number or identity of employees who worked on the set up and were subsequently on premises when Claimant fell. There was no testimony as to chain of command or the authority of persons from the Music Department gave to the riser set up and direction given participants at the rehearsal. The evidence of record indicates ISU procedure was to always use kick rails. The witnesses were evenly divided on their recollection of whether the kick rails were used at the rehearsal at issue on the ends of the risers.

We have no evidence as to who placed or moved the folding chair Ms. Cho fell upon nor how long it had remained in the space between the shell and risers. An estimated 150 choir members were to participate plus crew and musicians.

Claimant has no explanation for how or why she fell other than to imply she was focused upon moving past another person seated near the aisle. No defect in the riser is alleged other than failure to attach hand rails and/or kick rails. See Shields v. State, 47 Ill.Ct.Cl. 313 (1994).

There is no reliable evidence that the aisles were of a width constituting a hazard. The evidence further indicates that no accidents of any kind had occurred from the risers for at least ten years prior to Claimant's fall. As previously noted, the record indicates the side rails advocated were not manufactured for the risers used at the sides of the set up. Some of the risers were pre-drilled for back railings by the manufacturer which Claimant argued as evidence of negligence.

We have no credible evidence of the cost of purchasing new risers which would comply with Claimant's proposed standards. Similarly, no documentary evidence of record indicates retro-fit of handrails is possible or an estimate of cost for same. Ergo, we have no way of assessing the burden of requiring Respondent to guard against the risk or the financial consequences of placing this burden on the State. See Wilson v. State, 41 Ill.Ct.Cl. 50 (1989).

This claim is hereby denied and dismissed.

JANN, J.