PETERSON v. ILLINOIS DEPARTMENT OF NATURAL RESOURCES (2009)

OPINION

Claimant Teresa Peterson, brings this claim in Tort for a left-leg injury requiring a cast. She injured her leg as a result of slamming her foot into a concrete parking block located at Illinois Beach State Park, which is owned and operated by the State of Illinois and the Illinois Department of Natural Resources (IDNR). Peterson, a lawful patron of the park at the time of her fall, asserts that her fall and the damages related to it occurred because Respondent breached its duty to her by failing to take proper measures to protect her from harm. Claimant seeks $50,000.00 in damages as well as costs related to this suit. This claim was heard before a Commissioner on Sept. 9, 2008.

Factual Background

Claimant testified that on July 14, 2006, she arrived at Illinois Beach State Park around 4:00 p.m., accompanied by her son, Dakota (then 9), her friend Vickie Hodo, and Vickie's daughter, Jasmine (then 13). After swimming a few hours, claimant and her companions headed to their campsite, campsite #136. Claimant stated that she camped near this site once before and that for the last seven years she and her family camped at the park twice a year.

Claimant testified that they were drawn to the instant campsite because the picnic tables were close together. This meant that she and her friend could relax at one picnic table while still being near their children at the other table. Claimant recalled that they were making dinner. Vickie was away from the tables and tents starting the fire while Claimant chopped onions at her picnic table. Both children were at the other table, which was to her left.

As she was chopping onions, Dakota yelled, “Mom, there is a man going through our stuff!” Claimant saw the backside of a man going through their belongings, standing a few feet away from the children. Frightened for her son's safety, she quickly got up to walk toward the man, and in the process of doing so, slammed her foot against the concrete parking block. She had not seen the parking block until she hit it. Despite her excruciating pain, she limped toward the man. As he turned around, she saw his badge and realized he was a park official.

Claimant stated that, unbeknownst to her, the park changed its alcohol policy two months ago, and alcohol was prohibited at her campsite. The official, Officer James Prater, had noticed alcohol at Claimant's campsite, which is why he was going through their belongings. Claimant testified that Prater issued her a citation for having alcohol in the park. Claimant told him about the pain in her foot, and he told her where to get ice but did not assist her in obtaining it. Consequently, Claimant suffered an injury to her left leg that required a cast. Vickie Hodo also testified at the hearing and corroborated Claimant's recollection of the incident.

Officer James Prater testified at the hearing, and did not have independent recollection of the incident other than remembering that Claimant had an aggressive attitude when he issued her the citation. Based on the citation, Prater testified that he saw a can of Miller beer at the campsite around 7pm and that he issued Claimant a citation several minutes later.

He was shown a picture of the campsite taken the morning after the incident, and asked if there was anything unusual about the positioning of the picnic tables. He replied that there was not, adding that campers were free to move the tables to suit their convenience as long as they did not remove them from the camp site. He was also shown a picture of the parking block, also taken the morning after the incident. When asked about the weeds surrounding the block, he acknowledged the weeds surrounding it, but added that they were not obstructing the block from view, opining that it was clearly visible. Prater, who had worked for the IDNR for nine years, testified that he did not recall any parking block related injuries like Claimant's prior to the date in question.

Greg Behm, the park's site superintendent testified at the hearing that he made the Significant Visitor Accident Report the day after Claimant's injury. He went with Claimant to campsite #136 to write the report. He and Claimant took pictures of the parking block and the picnic table she was sitting at when the incident occurred. When shown the pictures of the parking block, he noted that the surrounding weeds indicated that the block had been there a while and had not been moved. He later elaborated that the parking blocks had to be moved by a tractor with forks on it. He stated that the parking blocks (six to eight feet long; six to twelve inches wide; and six to eight inches tall) were installed at every campsite to ensure that vehicles remain in their designated areas where they have access to electric pedestals.

He testified that there were no regulations regarding how close campers could place picnic tables to the concrete parking blocks. Campers were free to move picnic tables anywhere within the campsite except over the fire-ring. Campers were not permitted to move tables outside the campsite. He testified that close to two million people visited the 4,100 acre park each year. He testified that he worked at IDNR for 33 years, and as of the hearing date, 40 months at Illinois Beach State Park. He did not recall any parking block related injuries like Claimant's prior to the date in question.

Analysis

To state a cause of action sounding in negligence, a claimant must assert facts establishing the following: the existence of a duty that respondent owed him; the respondent breached duty; and that as a proximate result of the breach the claimant suffered damages Estate of Johnson by Johnson v. Condell Memorial Hosp, 119 Ill.2d 496 (1988). Generally, one owes a duty of ordinary care to guard against injuries to others that may result as a reasonably probable and foreseeable consequence of negligent conduct Karas v. Strevell, 369 Ill.App.3d 884, 889 (2nd Dist. 2006).

Claimant asserts that Respondent was negligent on three levels: 1. Prater was negligent in his conduct because it was foreseeable that Claimant would become startled and hurt herself where Prater did not announce himself before going through Claimant's belongings at dusk and only her children and female friend accompanied her; 2. Respondent was negligent in its failure to have a policy regulating placement of the picnic tables at the campsite because it is foreseeable that Claimant might slam into a parking block because a previous camper placed her picnic table too close to it; 3. Respondent was negligent in allowing an overgrowth of vegetation around the block because it was foreseeable that Claimant would not see the block and injure herself.

We first address whether the vegetation covered the parking block, to the extent that it was foreseeable that Claimant would not see it and injure herself. The pictures of the parking block show the majority of the vegetation covering the base of the block, with some scant vegetation spanning slightly higher than the height of the entire block. However we find that the white parking block, six to eight feet long; six to twelve inches wide; and six to eight inches tall, was clearly visible amidst the brown and green vegetation. It could not have been foreseeable that someone would have injured herself because she did not see it. Thus, Respondent was not negligent in failing to rectify a condition that could not have foreseeable caused Claimant's injury.

As for Prater's actions, it may be foreseeable that someone alarmed or startled upon seeing a stranger rummaging through her belongings at her campsite, but such a reaction is less likely where the stranger, like Prater, is in uniform. Regardless, Claimant's reactions went beyond any foreseeable alarmed or startled response; she stated that she jumped from her picnic table and slammed her foot into a parking block about five feet away. Accordingly, Prater was not negligent in how he approached Claimant.

The picnic table policy warrants a more detailed discussion. With respect to the State and its parks, visitors of State parks are invitees to whom the State owes a duty of reasonable care in maintaining the premises (Heimann v. State (1977), 32 Ill. Ct. Cl. 111), and in protecting its invitees from harm (Jodlowski v. State (1967), 26 Ill. Ct. Cl. 66). However the State is not an insurer of the safety of all persons visiting its parks (Bahl v. State (1997), 49 Ill.Ct.Cl. 120); and accordingly, the State is not required to undertake extraordinarily burdensome inspections or maintain its parks in such condition that patrons may wander at will over each and every portion thereof Lyons v. State (1987), 39 Ill.Ct.Cl. 192; Pulizanno v. State (1956), 22 Ill.Ct.Cl. 234.

The resolution of Claimant's claim hinges on foreseeability; specifically, the relevant inquiry here is whether the State's duty of reasonable care in maintaining its premises and protecting its invitees from a foreseeable risk of harm included a duty to protect Claimant from the concrete parking block at the campsite.¹ The State can only be liable if it failed to protect Claimant from a risk of harm that was foreseeable. Thus, to establish that a respondent breached its duty to a claimant in premises liability cases, the claimant must establish that the State had either actual or constructive notice of the defect or dangerous condition that allegedly caused his injuries See Dunbar v. State (1992), 45 Ill. Ct. Cl. 175.

Here, notice of the condition is not at issue. Respondent had notice about the parking block because Respondent installed one at each of the campsites. Further, by virtue of its policy permitting campers to move picnic tables wherever they want within their campsites, Respondent was on notice that the picnic tables could be placed next to parking blocks. What this Court must determine, however, is whether this condition that Respondent had notice of created a risk of foreseeable harm, thus rendering it a dangerous condition.

In addressing whether a defect or condition is dangerous and constitutes a risk of foreseeable harm that a respondent has a duty to protect a claimant from, we have focused on the nature of the condition itself and whether the State had a reasonable reason for maintaining the condition or engaging in the underlying conduct creating it See van Der Heyden v. State (1996), 48 Ill.Ct.Cl. 341; Wilson v. State (1989), 41 Ill.Ct.Cl. 50).

In van Der Heyden, the claimant cut across established trails and tried to circumvent the entrance gate to get to his vehicle. In negotiating his way back to the parking lot, the claimant permanently injured his elbow after tripping over a cable connecting concrete-filled barrels as part of a barricade system, on the east side of the entrance.

This Court found that the barricade and cable system installed by the State of Illinois at Starved Rock Park near the main vehicular entrance and in four other areas of the park, did not constitute a dangerous condition. We reasoned that the State could not have known that the barricades represented a dangerous condition to park users since in the 12 years after installation of the barricade, and in the nearly five years after the injury but prior to the trial, there were no reported incidents. Further, the State had a reasonable purpose behind implementing the barricades: to ameliorate a serious problem of criminal trespass to park grounds after curfew See van Der Heyden at 345.

Here, to establish her claim, Claimant must prove by a preponderance of the evidence that the State had, or should have had, reason to believe that a picnic table next to a parking block constituted a dangerous condition and that the underlying conduct creating the condition—the Respondent's policy of not regulating picnic table placement with the campsites—was unreasonable. Here, claimant establishes neither element. Pursuant to van Der Heyden, the easiest way to show that the State had, or should have had, reason to believe that a picnic table close to a parking block constituted a dangerous condition, is by presenting evidence of prior injuries like Claimant's. However, the record does not contain any. Respondent had no reason to believe that a picnic table next to a parking block could be a dangerous condition. Two million visitors a year in a 441 acre park where every campsite has a concrete parking block and picnic tables that can be moved next to it, and no one has had an injury like Claimant's.

Nor can Claimant rely on common experience or common sense to assert that a picnic table next to a parking block constitutes a dangerous condition. An injury to a camper is not a foreseeable consequence of the juxtaposition of parking blocks and picnic tables, such that it constitutes a dangerous condition. If anything, the parking blocks in question are open and obvious; they are relatively large and unobstructed objects² that are six to eight feet long; six to twelve inches wide; and six to eight inches tall. Claimant has failed to prove by a preponderance of the evidence that the State had, should have had, reason to believe that the table next to the parking block constituted a dangerous condition.

Nor has claimant established that Respondent was unreasonable for failing to have a policy regulating picnic table placement. In Wilson v. State (1989), 41 Ill. Ct. Cl. 50, this Court analyzed the following factors in determining whether the conduct creating an allegedly dangerous condition was reasonable: the magnitude of the risk, the burden of requiring the State to guard against the risk, and the consequences of placing such a burden on the State Wilson at 55.

In Wilson, the claimant brought a wrongful death action against the State where decedent died in an automobile that suddenly left the pavement and struck a tree about 15 feet from the east edge of the paved portion of the roadway. One of the counts in the complaint asserted that the State was negligent in not removing the tree from the area within 15 feet of the edge of the roadway because it constituted a hazard for vehicles which may leave the roadway. Applying the factors discussed supra, this Court held that the State had no duty to remove the tree since the State was well within the applicable standards that only required a 10-foot clearance zone along that roadway.

In light of the minimal risk picnic table placement poses, the burden of requiring the State to regulate such placement seems quite unnecessary, especially since the burden would be onerous.

To guard the against this risk, the State would have to keep the picnic tables in a set configuration and prohibit campers from moving them. To ensure this regulation was followed, the State would have to either permanently affix the tables to the campsite or have its officers check a campsite every time a camper checks out.

This is too high a burden. As stated supra, the State is not required to undertake extraordinarily burdensome inspections. More importantly, the consequences of such a burden would greatly diminish campers' ability to enjoy their campsites. The high burden on Respondent in imposing regulation, as well as the regulation's negative consequences, far outweigh the minimal risk of injury that is possible with no such regulation in place. Accordingly, Respondent's policy permitting campers' unfettered movement of picnic tables within the campsite so that they can customize usage and maximize enjoyment, is reasonable.

Thus, the positioning of picnic tables near parking blocks did not create a risk of foreseeable harm constituting a defect or dangerous condition. Because Respondent only has a duty to protect Claimant from a risk of harm that is foreseeable, it did not have a duty to protect Claimant from this condition. Accordingly, we do not find Respondent negligent for failing to prevent a dangerous condition through its policy permitting campers to place picnic tables next to parking blocks and Claimant's claim is hereby DENIED.

FOOTNOTES

1.  The issues of duty, breach, and proximate cause are not completely separate. Foreseeability is a factor both in determining duty and in determining proximate cause. It is possible to deal with most of the questions which arise in a negligence case in terms of duty. (W. Keeton, Prosser & Keeton on Torts § 53, at 356 (5th ed. 1984).) Such an approach may in fact be helpful because it may direct attention to the policy issues which determine the extent of the original obligation, rather than to the mechanical sequence of events which goes to make up causation in fact Benner v. Bell, 236 Ill.App.3d 761, 765 602 N.E.2d 896, 899, 177 Ill.Dec. 1, 4 (Ill.App. 4 Dist., 1992).

2.  Since Claimant provides a picture of only the unobstructed parking block at her campsite, based on this evidence alone, we cannot find that all of the parking blocks at the park were unobstructed. However, this picture coupled with evidence that there were no reported parking block-related accidents at the park, allows us to safely find that the other parking blocks in the park are similarly unobstructed.

REID, J.