NICHOLAS SABADUQUIA v. THE STATE OF ILLINOIS (2001)

OPINION

This cause comes on for hearing upon a commissioner's recommendation. The claim alleges that the Respondent was negligent in providing dangerous recreational equipment to prison inmates which resulted to a personal injury to the Claimant. The award is requested in the amount of $72,500.

Mr. Sabaduquia plead guilty to a charge of burglary in 1990. He was sentenced to two years and served one year with time credited for good behavior. Prior to his incarceration he was an avid and skilled softball player; had no facial, nasal or eye injuries; and was in excellent health generally. Following his conviction he was assigned to the Joliet Correctional Center.

On September 2, 1990, the Joliet Correctional Center was on lockdown status. The Claimant was not involved in the activity that precipitated the lock down. Lockdown status requires all the prisoners to be confined in their cells for 23 hours a day. The prisoners were permitted a maximum of one hour per day in the yard for exercise.

Approximately 200 prisoners were escorted to the yard for exercise and were provided basketballs, a softball and bat. The bat provided was a 32 inch aluminum bat with a rubber grip and knob attached to the base of the bat. The Claimant was participating in the game of softball and was on deck. The batter who preceded him had hit a foul ball. As the preceding batter swung the bat, the aluminum shaft flew out of the rubber handle and onto the field. A portion of the rubber grip had broken off, but the remaining portion was still in the batter's hand.

The Claimant retrieved the shaft and returned it to the correctional officer in charge. The Claimant told the officer that they could not play with that bat. The officer took the aluminum bat and shoved it back into what remained of the grip and advised them to continue the game or return to their cells.

The Claimant returned to his position on deck, about ten to fifteen feet away from the batter. The batter swung the bat and the aluminum shaft flew out of the grip again and struck the Claimant in the face. The Claimant was struck on the right side of his upper cheek below his eye, and across the bridge of his nose. He was rendered unconscious by the blow.

Mr. Sabaduquia regained consciousness and was transported to the prison infirmary. The bat was left in the possession of the guard who said he would hold it for evidence. The bat, however, was never recovered. The Claimant was then transferred to Silver Cross Hospital.

The doctor at Silver Cross Hospital reset the Claimant nose, gave him 5 or 6 stitches, and bandaged his face. The doctor told the Claimant that he had sustained a fracture under his right eye and that his nose was shattered in three places. He was prescribed medication for the pain, but the Claimant testified he was denied the medication and even aspirin. He described massive pain to his face which prevented him from sleeping and eating.

On September 5, 1990 the Claimant was transferred to Hill Correctional Center. On September 10, 1990 his stitches were removed. X-rays and photos were taken of his face. The photos were never recovered from his master file.

The Claimant testified he continues to experience difficulty breathing, tremendous pressure below the eye, and headaches as a result of his injuries. He also has recurring nightmares about the incident. The Claimant is unable to secure a job which provides medical insurance because of his felony conviction. He currently drives a truck for a salary of about $200 a week, but has been unable to save enough money to have corrective surgery done to his face.

The parties entered into a stipulation regarding the testimony of the examining physician, Doctor George W. Allen. Dr. Allen is an Otolaryongolist or Ear, Nose and Throat specialist. Dr. Allen reviewed the Illinois Department of Corrections Incident Report, the treatment records, and examined the Claimant. Dr. Allen found as follows:

In his statement of Claimant's history, Dr. Allen noted that the Claimant had been struck on the nose and right cheek by a piece of a baseball bat on September 3, 1990 in the Yard at Joliet Correctional Center; that he sustained a laceration of the bridge of the nose and swelling ecchymosis (dark spotting caused by internal bleeding) of the right cheek and eyelids; the laceration was sutured; subsequent x-rays at Galesburg Cottage Hospital revealed a comminuted fracture (crushed into small pieces of the nasal bones).

Claimant's current complaints to Dr. Allen, during a July 1, 1998 examination, consisted of nasal congestion, nasal discharge, bleeding from the nose, blurred vision, double vision and pain below the eyes. Dr. Allen also noted a visible deformity of the nose. He believed that all of these conditions could have been caused by the bat slamming into the Claimant's face in 1990.

On further examination, Dr. Allen found that Claimant's nose is badly deviated to the left; there is a large perforation (hole or break) in the nasal septum (the bone and membrane that separates the nasal cavities) and the mucous membranes are extremely congested. Dr. Allen also noted that Claimant's right zygomatic bone (that forms the hard part of the cheeks and the lower portion of the rim of the Orin of the eye) is flattened and there is a mild exophthalmos (a backward displacement of the eyeball into the orbit); further, that Claimant had tenderness of both cheeks and the forehead and the motion of the right eyeball is limited on right lateral gaze.

Dr. Allen concluded in his diagnosis that as a result of the occurrence in question, Claimant suffered a nasal fracture, which in turn caused Claimant's chronic sinusitis (inflammation of the sinuses accompanied by headaches and nasal discharge) and nasal sepal perforation. He also concluded that while x-rays did not disclose a fracture of the zygoma, such a fracture is easily missed on x-ray. He believed that Claimant had such a fracture based on the clinical findings. This type of unreduced fracture, Dr. Allen explained, is a common complication or cause of the diplopia, the condition of double vision from which Claimant suffers.

Finally, while Claimant's prognosis would be good if Claimant had proper surgery, the conditions caused by the occurrence in question are currently causing Claimant considerable disability as well as deformity.

The Respondent presented its Departmental Report, which stated the Claimant was struck with the bat while playing baseball. The Report further stated the knob came off the end of the bat, and flew out of another inmate's hand, striking inmate Sabaduquia (sic). The Departmental Report concluded that the incident was an accident, and the investigation was closed.

The Court has consistently held that if the State provides recreational equipment to inmates, it must be in safe condition. In order to establish liability the Claimant must first establish a breech of that duty. Malone v. State of Illinois, 47 Ill. Ct. Cl. 354, 361, (1994); Terry v. State of Illinois, 44 Ill. Ct. Cl. 211, 213 (1991). However, the existence of a defect in itself does not establish negligence. It must also be established that the State had actual or constructive notice of the defect. Rosario v. State of Illinois, 43 Ill. Ct. Cl. 282, 283 (1991).

In the instant case, the facts support Claimant's argument that the Illinois Department of Corrections breached its duty of care to Claimant to provide reasonably safe equipment with which to play softball. At the time in question inmates at Joliet Correctional Center had been on lock down. They were released a few days a week for one hour for recreation in the yard. The weather had been extremely warm, and the prisoners were extremely eager to get to yard for recreation. The prison provided one baseball bat which consisted of an aluminum shaft encased in a plastic handle at its base. The batter gripped the bat by placing his hands around the plastic handle.

While the prisoner was using the bat for the purposes intended and hit a foul ball with the bat, the metal part of the bat (aluminum shaft) broke free of its plastic handle (which was partially broken) and flew into the left field. The plastic handle that had partially encased the aluminum portion of the bat remained in the prisoner's hands. The correctional officer in charge of the prisoners pushed the aluminum part of the bat back into the broken handle and told the prisoner at bat to use to defective bat again. When Claimant protested that another proper bat should be provided, the officer ordered that they either play with the broken bat or return to their cells. The prisoners, anxious to remain in the Yard for the short time left them to play ball complied with the officer's directive. The same batter swung at a pitch with the defective bat. Claimant was standing 10-15 feet to the rear and the left of the batter beside the supervising correctional officer. This time the aluminum shaft again slipped out of the handle and flew to the rear where the aluminum portion of the bat struck the Claimant directly in the face. The prisoners were using a bat provided to them by officers of the Illinois Department of Corrections and were using it in the way it was intended to be used. There is no evidence that the players abused the bat in any way.

Although the actual bat was never produced by Respondent, despite Claimant's Request to Produce, the facts support the conclusion that the bat was in a defective condition. Further, the facts support the Claimant's contention that the Respondent had actual notice of the defect. The Claimant's testimony was credible. The Respondent produced no live testimony or documents to contradict the Claimant's version of the facts. Respondent also failed to produce the bat despite Claimant's Request to Produce. Further, there was no evidence presented that Claimant was guilty of any contributory negligence.

Based on the foregoing facts and the aforementioned principles of law, We find liability on the part of the Respondent and award the Claimant damages. Unfortunately, there was no evidence presented regarding the cost of corrective surgical procedure. However, it is obvious this Claimant has suffered a massive deformity, and significant pain and suffering. For this reason we award the Claimant the sum of $75,000.

PATCHETT, J.