GREGORY THOMAS CHERYL THOMAS v. THE STATE OF ILLINOIS (2003)

OPINION

Claimants Cheryl and Gregory Thomas (the Thomases) bring this claim seeking, respectively, $86,607 and $69,975 damages for personal injuries and loss of consortium allegedly suffered due to body surfing at the Illinois State Fairgrounds, in Springfield, on August 16, 1994 at a Stone Temple Pilots rock concert that was hosted by the State and promoted by JAM Productions, Inc. (JAM). Claimants were struck by another concertgoer who fell on them while being bodily passed overhead by others in the audience.

We denied respondent's summary judgment motion on the issue of exhaustion of alternative sources of recovery against JAM (December 16, 1998), and this claim was then tried to our late Commissioner, Nancy Owen (July 12-13, 1999), who reported her findings to the full court.

Nature of the claim and defenses

The Thomas claim sounds in negligence. Although it primarily names the State Police Department, whose officers were providing security at the concert, this claim also asserts liability against the State as owner/landlord of the Fairgrounds venue of the concert.

Claimants ultimately allege: that the State Police (a) negligently allowed persons in the audience ... to pick up and throw other persons and (b) negligently failed to protect persons in the audience from individuals being thrown, and that the respondent generally (c) negligently failed to provide adequate security and (d) negligently allowed the sale of alcoholic beverages to persons watching the concert from the track area. (Claimant's post-trial brief, at 3.)

The respondent defends on both legal and factual grounds: (1) legal duty: that there is no actionable duty (a) on the part of the State Police to the claimants as individual members of the public under the public duty rule, or (b) by the State generally to the claimants as invitees for acts of other invitees; (2) public official immunity: that the State is immune for negligence in the performance of discretionary duties; (3) exhaustion of alternative sources, that the claimants failed to exhaust their alternative recovery remedy against JAM (in violation of/25 of the Court of Claims Act (705 ILCS 505/25)); (4) no negligence: that, as a matter of fact, there was no negligence by the State Police or by the State as landlord of the Fairground; (5) assumption of risk: that the claimants assumed the risk of the body surfing by failing to leave after they were aware that body surfing was occurring; and (6) damages: that claimants failed to prove consequential damages.

Because the underlying legal basis of this claim is challenged, and is also sought to be barred as a matter of law by three affirmative defenses, we first address the legal issues.

The negligence action

The threshold issue is whether the claimants state a negligence claim on this record. Fairly read, the claimants complaint and their post-trial arguments assert two distinct legal theories of a duty of reasonable care: (1) the State Police's law enforcement duties, and (2) the State's duties as property owner to the concertgoers as business invitees, including its use of the State Police as security at the concert to discharge those duties. Both duties arise, if at all, as a matter of law based on the relationship of the parties.

The asserted law enforcement duty of the State Police must be rejected as a predicate of this claim. Illinois common law is well settled that police and their parent governmental bodies ordinarily owe only a public duty - i.e., one running to the public generally -- and not a duty to individuals. Individuals like these claimants cannot ordinarily assert a negligence claim against law enforcement officers. Anderson v. State of Illinois, 40 Ill.Ct.Cl. 126 (1988); Huey v. Town of Cicero, 41 Ill. 2d 361, 243 N.E.2d 214 (1968); Burdine v. Village of Glendale Hts., 139 Ill. 2d 501, 565 N.E.2d 654 (1990). This is the public duty rule that the respondent invokes.

The special duty exception to the public duty rule, which the claimants invoke, arises under narrow circumstances when a law enforcement or other public safety officer:

(1)... [is] uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be specific acts or omissions ...; (3) the specific acts or omissions must be affirmative or willful in nature; and (4) the injury must occur while the plaintiff is under the direct and immediate control of municipal employees or agents. Leone v. City of Chicago, 156 Ill. 2d 33, 619 N.E.2d 119, 121 ((1993), citing Burdine, supra.

Moreover, as re-emphasized in Doe v. Calumet City, 161 Ill. 2d 374, 641 N.E.2d 498, 504 (1994), our Supreme Court has repeatedly interpreted the control element to require that the public employee initiates the circumstances which create the dangerous situation. Burdine, 139 Ill. 2d at 525-26.

Accordingly, although this court is apparently the last redoubt in Illinois of the special duty exception, which retains vitality in Illinois only as to the State Police and other State public safety agencies,¹ that doctrine does not avail the claimants here. The evidence does not come close to triggering the exception under the control element: the claimants have made no showing that they were under the control of the State Police at the time of their injuries. Thus no duty of the State Police, as police, arose as to these claimants on which they may base their claim.

The Thomases second theory, resting on the property owner's duty to its invitees, which they invoke against the State as owner of the Fairgrounds and host of the rock concert, stands on firmer ground. It is settled in Illinois that land owners owe a duty of reasonable care to their invitees; the legal dispute in this case is whether or not that duty extends to providing reasonable protection against the conduct of the other concert-goers who were engaging in the body surfing.

The claimant asserts two of the circumstances that, we agree, extends the State's duty as owner/host to encompass protection against other concertgoers/invitees: (1) the claimants were business invitees, which is one of the special relationships that gives rise to the broader duty to protect against third-party dangers, even including criminal conduct by third-parties, Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 531 N.E.2d 1358 (1988); Leonardi v. Bradley Univ., 253 Ill.App. 3d 685, 625 N.E.2d 431 (3d Dist. 1993); Ono v. Chicago Park Dist., 235 Ill.App. 3d 383, 601 N.E.2d 1172 (1st Dist. 1992); Comastro v. Village of Rosemont, 122 Ill.App. 3d 405, 461 N.E.2d 616 (1st Dist. 1984); and (2) the State voluntarily undertook to provide security (utilizing the State Police for that purpose), thus assuming the duty to perform that undertaking reasonably and non-negligently, Rowe v. State Bank of Lombard, supra. As our Supreme Court held in Rowe:

A landlord may be held liable for the criminal acts of third parties when it voluntarily undertakes to provide security measures, but performs the undertaking negligently, if the negligence is the proximate cause of injury to the plaintiff. [citations omitted] This rule is simply an application of the established principle, recognized in section 324 of the Restatement (Second) of Torts (1965), that one who has voluntarily undertaken to provide a service must do so with reasonable care.

Thus the law imposed a duty on the State to exercise reasonable care to warn and protect the claimants from the danger of body surfing, which as the evidence in this case clearly and almost undisputedly shows, was an activity that was both reasonably forseeable and in fact actually anticipated at this rock concert due to the reputation of the star act, the Stone Temple Pilots, as encouraging such conduct and being identified with it.

However, we must reject the claimants contention that the respondent, as landowner, owes a high degree of care to protect invitees from injuries caused by ... third persons (Claimants post -trial brief, at 21). That is not the law. Although the business invitor-invitee relationship and the assumption of protection duty broaden the landowner's duty, the standard of care remains reasonable care under the circumstances and is not elevated to a higher standard. Roth v. Costa, 272 Ill.App.3d 594, 650 N.E.2d 545 (1st Dist. 1995).

Thus the liability issue in this case is whether the respondent and its agents, particularly the State Police, were negligent in providing security and protecting the claimants at the August 16, 1997 Stone Temple Pilots rock concert at the Fairgrounds.

The Affirmative Defenses

Before turning to the negligence evidence, however, we entertain the affirmative defenses that would bar this claim as a matter of law.

First, the exhaustion issue, which we addressed in our prior order on summary judgment, turns on whether the claimants have or had a cognizable claim against JAM for their personal injuries. If so, then under/25 and our Rule 60 they must exhaust that alternative source before any final determination can be made here; if not, this claim can proceed to final decision.

With one critical fact finally established by stipulation -- which required an inquiry by the court at oral argument -- that JAM was not a lessee of the Fairgrounds premises nor the seller of the admission tickets, it is apparent that any claim against it for injuries suffered at the concert must derive from its conduct rather than from duties legally imposed upon it as host. Respondent advances two theories of liability of JAM: (i) that JAM had advance knowledge of the likelihood of body surfing at Stone Temple Pilots concerts, and should have warned the State and the claimants; and (ii) that JAM encouraged the State Police to limit their anti-body surfing efforts at the concert. We conclude that neither theory is viable as a basis of an action by the claimants against JAM.

The should-have-warned theory is unsupported by caselaw upholding such an action against an entertainment promoter who is not in control of the premises. That theory also fails factually, as the evidence in this case convincingly demonstrates that virtually everyone involved with this concert -- including the paying audience -- was well aware of the reputation of the Stone Temple Pilots for encouraging body surfing as well as moshing (in mosh pits) and expected such activities to occur at the concert. Indeed, the claimant contends, and the evidence supports its contention, that the Fairgrounds security staff, including the State Police, also anticipated that such activities would be attempted by the audience. There is no showing, and little plausibility, that a warning by JAM to the State or to the Thomases was necessary to disclose that possibility or that such a warning would have made a whit of difference to prevent the claimants injuries.

The respondent's other alternative recovery theory is defeated by the failure of the evidence (discussed post) to show that the JAM personnel's supposed efforts to discourage the State Police from discouraging body surfing were successful.

Second, we reject the respondent's attempt to invoke the public official immunity doctrine in this case. We need not address the viability or application of the doctrine, as there is simply no discretionary duty of a State officer at issue as the basis of liability in this case. Although the manner of performing the legal duty to provide reasonable protection to the concert attendees may involve discretion, this is simply not a claim arising out of a discretionary decision.

Third, we reject respondent's contention that this claim is barred by assumption of risk. That doctrine is ordinarily a defense to contract claims, i.e., where the defendants duty arises as a matter of contract. But the Thomases have not rested the State's duty on the license or other contract that they purchased to gain admission to the concert. Similarly, the respondent has not introduced any evidence of an assumption of risk (or a release of liability) in any ticket or other agreement.

The claim here is one of common law negligence. In Illinois, such claims now invoke comparative negligence as a matter of law. Like any negligence defendant, the respondent can assert the claimants own negligence, but that is not a legal bar to the claim as it once was under the former contributory negligence doctrine, nor as the respondent here seeks to effect under the assumption label. Under the procedural circumstances of this case, the court will allow the respondent's arguments as to the Thomas alleged negligence, but as a matter only of comparative negligence.

The Negligence Evidence

At the hearing, the parties produced six occurrence witnesses: the claimants; three State Police officers: Lt. Col. Kathleen Stevens (commander of District 9 in Springfield in 1994); M.Sgt. Bobby Blair (in charge of crowed security for the grandstand detail at the 1994 concert); and Trooper Bruce Bialorucki (who had worked security at the 1994 concert); and one State Fair Agency employee: Charles E. Palazzolo (assigned to security, and responsible for backstage security at the 1994 concert). Their testimony, as found by Commissioner Owen, is summarized as follows:

Cheryl Thomas testified that she had been working at Second Cinema Video in Springfield, Illinois, and along with a number of fellow employees, she and her husband went to the State Fairgrounds to see the Stone Temple Pilots, a live band performing at the grandstand. Their tickets allowed them admission for standing room in the track area.

The track was extremely crowded. At the beginning of the concert, many people in the crowd would pick someone up and body surf them over the crowd. Earlier she had observed a trooper come over and stop the passing of a person. However once the Stone Temple Pilots came on, it was dark and things got very wild with the body surfing and mosh pits. Mrs. Thomas testified that once the Stone Temple Pilots started performing, the State Police did not interfere with the body surfing. When she and her husband observed the body surfing they backed up through the crowd to the back of the concert area. She testified that whenever she looked around her she did not see any police within close range. She and her husband did not leave even though they saw that surfing was going on because they assumed the police would take care of it.

Mrs. Thomas testified that at one point a big guy was being body surfed when he fell and struck the claimants, knocking them to the ground. When they stood up they were hit again by a lighter person. Once they were struck by the body surfers, they walked to the North East gate where they were almost hit by a third person while trying to get through. She said that they observed a State Trooper at the edge of the crowd and he told them to leave, and that he could not help them.

Claimants then made their way to a first aid tent where they were seen by a nurse. While they were in the first aid tent, a State Trooper came in and talked to them and took a report. There was no ambulance immediately available and the claimants did not wish to wait, so the Trooper came back, drove them to their car through the fairgrounds and made certain theat the claimants were safe to drive. They drove to St. John's hospital emergency room where they were treated and released.²

Mr. Thomas's testimony was similar concerning the incident at the 1994 Stone Temple Pilots concert. He was first seen by the chiropractors on November 16, 1994. Mr. Thomas testified that he experienced headaches and pain in his leg.³

Lt. Col. Kathleen Stevens testified that in 1994, she was the commander of State Police District 9 and was responsible for overall State Police activity at the State Fair. In addition to the State Police, who were responsible for providing a police presence to keep order, there were t-shirted security personnel at the Fairgrounds, some of whom were off-duty City of Springfield police officers and Sangamon County Sheriff's deputies.

Lt. Col. Stevens testified that before the Stone Temple Pilots concert, the police discussed the need for additional first aid because concertgoers would likely participate in mosh pits and body surfing and similar activities. One of the reasons that body surfing is dangerous is that once a person is up in the air they have no control over their body and could hurt members of the crowd. However, body surfing is not illegal.

Master Sgt. Bobby Blair testified that he was in charge of the crowed security for the grandstand detail at the concert. Although he had left the grandstand before the Stone Temple Pilots went on in the final act, he had assigned additional personnel to the detail because it was a younger crowd and the grandstand was going to be full that night. The personnel responsible for grandstand security were directed to attempt to keep the body surfing down. Master Sgt. Blair said that at some point in the evening he talked to Trooper Bialorucki and asked him can you believe the band encourages body surfing? Master Sgt. Blair testified that he did not at any time during the evening of the concert issue any orders to troopers to hold back or not to arrest people for body surfing.

Charles E. Palazzolo testified that for the past 20 years he had worked security for the Illinois State Fair, and that he was responsible for backstage security at the 1994 concert. That responsibility included protection for the stage area. During the first two acts of the night in question, Mr. Palazzolo said he observed the State Police trying to stop people from body surfing as much as they could. During the third act, Mr. Palazzolo testified that he was so busy on the stage that he did not have time to watch what was going on in front of the stage. He testified that at the pre-safety meetings he and the other security personnel had talked about how the Stone Temple Pilots encouraged body surfing. Throughout the concert, as people came close to the stage, Mr. Palazzo testified that they [i.e., security personnel] would grab them and have the State Police escort them out, but that it was impossible to control the body surfing because of the large crowd.

Trooper Bruce Bialorucki testified that he had been assigned to work the State Fairgrounds on the night of the 1994 concert. He testified that M.Sgt. Blair told him the fair administration wanted them to discontinue their efforts to stop body surfing. After his conversation with Blair, he testified that he did not see anyone take a person down for body surfing.

Trooper Bialorucki testified that there were not enough troopers on duty to prevent body surfing in that big of a crowd. He testified that it is very difficult to stop body surfing because the person moving above the crowd is moving much faster than a person trying to walk through the crowd can possibly move. Trooper Bialorucki testified that the size and density of the crowd was larger than he had ever seen at a State Fair concert.

Negligence: Discussion

Claimant's primary theory of the respondent's negligence, as they argue the case on the trial record, is that the State Police ceased providing any crowd protection from the ongoing body surfing during the final (third) act of the concert when the Stone Temple Pilots came on. Claimants contend that M.Sgt. Blair gave the order to cease efforts to prevent body surfing at that time, due to the urging of JAM personnel who were seeking to promote the rock band's signature style.

The court agrees with Commissioner Owen's finding that the claimants did not prove that charge. Although the testimony reveals some disconnect between the participants understanding (or recollection) of the Blair-Bialorucki conversation at the concert, we cannot agree with the claimants characterization of M.Sgt. Blair's statements to Trooper Bialorucki (as described by the Trooper) as being an order to desist. More critically, however those comments may now be characterized after the fact, there is no evidence that an order to desist -- or anything resembling such an order -- was transmitted to the officers in the grandstand or on the track. Thus, even if we were to discount M.Sgt. Blair's denial that he gave such an order, which our Commissioner found to be credible, this record would still not support a finding that the State Police ceased policing body surfing in the final act.

The only other evidence that the State Police ceased efforts to prevent body surfing in the last act is the claimants testimony that they did not observe such efforts once the Stone Temple Pilots came onstage, and Trooper Bialorucki's testimony that late in the concert he did not observe any concertgoers being taken down by security personnel. That is not persuasive to establish that the State Police and other security personnel ceased trying to stop body surfing.

First, it was then after 9:00 p.m. and, even in mid-June, was dusk or dark, and none of these three witnesses established that they in fact could observe the entire track area or the entire grandstand to see what the security personnel were doing. Second, the claimants say that they were moving through the crowd at the track area during the critical final act before they were struck. From that position, even assuming that they were somewhat focused on observing the security personnel instead of where they were walking, the claimants would have to make their observations through (or above the heads) of the crowd. They did not show that they could or did do so. Trooper Bialorucki's testimony similarly fails to establish that he was in a position or positions in the final act to observe the overall security effort. These witnesses subjective impressions, which are taken as genuine, are simply not enough in these circumstances.

We also find it telling that the claimants, who came to the concert with co-workers, could not produce a single independent witness to testify to the alleged change in the efforts of the State Fairgrounds security force in the final act of the concert.

Claimants make a better claim that the respondent was negligent in failing to provide adequate security for a known or anticipated danger, i.e., the potentially injurious body surfing behavior of the expected audience, or alternatively, that the State's hosting of the particular band was itself negligent when the band's incitement of dangerous crowd behavior was known and when prevention (or segregation to a designated area) of body surfing was either unlikely to be achieved or was not even attempted.

The court accepts the view of State Trooper Bilaorucki, who viewed the situation as beyond full control with the available number of security staff once the Stone Temple Pilots took the stage. Claimants have not quite persuaded us, however, that the respondent or its security staff was negligent in its planning or execution of the security for the concert, although we find this to be a close call. As far as the evidence discloses, this 1994 concert was the respondent's first hosting of a rock band that incites or encourages body surfing, and the first case of bodily injury allegedly arising from body surfing at this band's concerts, or at any State-hosted concert. Indeed, Trooper Bialorucki's otherwise-helpful testimony cuts against the claimants argument when he characterizes the August 16, 1994 concert as the largest and most crowded he had ever seen at the Fairgrounds. Thus, although it is clear that these dangerous activities were in fact anticipated, we cannot say on this record that the respondent should have anticipated the extraordinary size of the crowd and the inability to control the crowd with the usual security staff of law enforcement officers. This case does, however, put the respondent on notice for the next body surfing claim arising out of some other similar State-hosted event.

We must also observe that the claimants in one respect have proven too much. One fact that is both clearly evidenced and essentially undisputed is that virtually everyone involved in this concert knew and expected that body surfing would occur -- not least the audience, who came lagely if not entirely to see the star act, which was closely and aggressively identified with such conduct at their concerts. Claimants cannot, and do not, claim to have been innocents confronted by a danger that they did not anticipate.

Instead, claimants argue that they tried to get away from the body surfing and relied on their expectation that the State Police and other concert security staff could control the body surfing in the third act as they had done in the two prior acts. This is unpersuasive in the extreme.

Neither the claimants nor any other of the witnesses claims that the Fairgrounds security staff was able to stop body surfing completely during the first and second acts of this concert. The claimants like everyone else in the track area were aware that body surfing was recurring to some extent, despite the efforts to stop it, and were necessarily aware of the difficulty -- emphasized by Trooper Bialorucki -- of security personnel catching surfing bodies in the standing crowd. The claimants own testimony of encountering several surfing bodies while moving through the crowd in the last act is inconsistent with their dual claims of having observed the security forces in action (or non-action) and relying on them to prevent body surfing.

In these overall circumstances, the claimants were at least as negligent in remaining as any negligence that might be ascribed to the respondent. The claimants were on direct notice of the danger posed, and of the difficulty of controlling the crowd and of preventing spontaneous body surfing by incited youths in the track area. Yet the Thomases made a decision to stay rather than leave when the Stone Temple Pilots started their performance.

If they had left because of the blatant danger to their persons and had come to this court seeking a refund, they would stand on much stronger ground. But on their personal injury claim, we cannot find that they established that the respondent or its agents failed to act reasonably to provide crowd security or were otherwise negligent.

On this record, we must decline to find liability on the respondent. In light of our finding, it is not necessary to discuss the damages evidence.

Conclusion

For the foregoing reasons, the court finds that the claimants failed to establish liability of the State of Illinois on this claim, and therefore it is hereby ORDERED:

1. This claim is denied, and forever barred; and

2. This case is closed.

FOOTNOTES

1.  The special duty exception is trumped by the statutory immunities of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10) (the Tort Immunity Act); hence the judicial application of the special duty exception to impose liability is unconstitutional as a violation of the sovereign immunity clause (Art. XIII,/4) and the separation of powers clause (Art. II,/1) of the 1970 Illinois Constitution (judicial intrusion into an area of legislative supremacy). Harinek v. 161 North Clark Street, Ltd., 181 Ill. 2d 335, 692 N.E.2d 1177 (1998); Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 697 N.E.2d 699 (1998). The special duty exception has thus been statutorily abolished in the Illinois -- except in this court. This is because the Tort Immunity Act and its supplanting statutory immunities do not apply to the State (see, 745 ILCS 10/1-206), thus leaving the common law special duty exception applicable against the State in this court.

2.  After her visit to the emergency room, Mrs. Thomas did not see a doctor for several days. She went to a chiropractic clinic on August 22, 1994, where she was treated by Drs. Triplett and Wenneborg. Mrs. Thomas stated she had not seen any other doctors after the emergency room visit. She testified that she was treated for over a year and did have some improvement. She did not continue to get headaches every day, and although she still occasionally gets migraines, she does have a range of emotional problems. She was subsequently in an automobile accident in October 1995, when she was rear-ended by a service truck while stopped at a stoplight. In April 1997, she was rear-ended by a truck while a passenger in an automobile. Mrs. Thomas testified that she attempted to work but that she lost wages when she was too ill to work and she gave up her job in early 1995 because she was pregnant, had a high risk pregnancy, and because her suffering and pain was just too much.

3.  Both claimants had previous chiropractic treatment approximately 10 years earlier. Mr. Thomas had an automobile accident in 1992 that resulted in treatment. Documentation was admitted into evidence detailing the chiropractic treatment, charges for care and lost wages.

EPSTEIN, J.