FOSS v. ILLINOIS DEPARTMENT OF TRANSPORTATION (2009)

OPINION

This matter came for hearing on December 7th, 2004 before Commissioner Joseph Cavanaugh on Claimant Leone Foss's claim for personal injuries arising from her fall on October 21st, 2002 at approximately 2:30 PM on a grassy parkway adjacent to Joliet Road in Countryside, Illinois.

FACTS

Leone I. Foss, claimant, age seventy-six, testified that on October 21st, 2002, at 2:30 PM, she was driving on Joliet Road, east of Wolf Road, in Countryside, Illinois, on her way home when she stopped her vehicle at the driveway of an entrance to a golf course to look for golf balls in the parkway. At that location there is a fence enclosing a golf course. Claimant has been collecting golf balls in the area on and off for several years. Between the fence and Joliet Road is a parkway where the accident occurred. Claimant's Exhibit 2 was admitted into evidence and shows the driveway where the claimant stopped her vehicle, the fence along the golf course, Joliet Road, and also the parkway where the fall occurred. Claimant's exhibits 3 & 4 were admitted into evidence and close-up photos of the parkway and the area of the depression where the claimant fell. The width of the parkway between Joliet Road and the golf course fence appears to be about twenty feet. The photos show that the parkway slopes gently from the golf course fence downward to Joliet Road and in the parkway there is a depression covered by leaves located next to a storm sewer.

Claimant testified that she had walked about six feet onto the parkway, looking at the ground for golf balls when her right foot stepped into a six-inch sinkhole, which was covered with leaves. She fell on her right side onto her right arm. A man driving by stopped to assist the claimant. However the claimant reported that she was able to get up without assistance before the man reached her. Claimant told the man she hurt her arm and requested his name and address. The man gave her his business card and offered to drive her home. She declined his offer and drove herself to her home, which was located approximately a half a mile away.

When she arrived home her arm hurt and she found that she could not raise it at all. She called her family physician and was able to get an appointment two days after the accident. At her appointment she complained of pain in her right arm and also that she was unable to raise her right arm. She later noticed a black and blue baseball-sized bruise on her right breast, which eventually went away. Her physician referred her for an MRI, which was performed on October 25 th, 2002. The MRI showed a rotator cuff tear in the right shoulder. Despite the claimant's denial of any previous injury to the rotator cuff, Dr. Bartolomeo reports that he suspects that the claimant's rotator cuff has probably been tearing for months or years and that the fall was the coup de grace that tipped it over the edge.

The claimant received a single cortisone injection and also received physical therapy at LaGrange Memorial Hospital for approximately three months. At trial she testified that the use of her arm is still limited and that she experiences range of motion limitations as well as pain in her arm. The medical records and bills, which totaled $6,026.65, were admitted into evidence by way of stipulation.

Tim Curran was called as a witness both by the claimant and respondent and testified that he is employed by the Illinois Department of Transportation. In 2002 he worked for IDOT as a highway maintainer and his duties included responding to complaints such as pavement buckles, pothole or sewer defects. On December 4th, 2003 Mr. Curran was requested to go to the parkway where the accident occurred to determine if the site was State right-of way property. Mr. Curran examined the site and determined that the parkway property was State owned and maintained. He examined the storm sewer in the parkway and found no evidence of cracks in the sewer. He then filled a small sinkhole located next to the storm sewer. He testified that he was unaware of any previous complaints about the sewer or small sinkhole. Mr. Curran surmised that a gradual erosion of the soil could create the sinkhole he filled with dirt and leveled off which was located next to the storm sewer. He believed the sinkhole could be a dangerous condition if one was not watching where they were walking or if leaves covered the sinkhole.

Christine Ridge, and IDOT litigation representative, testified that she examined IDOT records for calls or complaints for six months prior to the date of the accident and yard maintenance records for two years prior to the accident. Based upon her review of the IDOT records, she testified that there were no records of complaints or calls made during the six months prior to the accident about the sinkhole or the depression area located next to the storm sewer. The first communication to IDOT regarding the sinkhole was the investigation initiated after the complaint was filed in the Court of Claims in 2003. Ms. Ridge was unaware of any records of accidents or repairs made at this location for two years prior to October 21st, 2002.

LAW

The State owes a duty of reasonable care in maintaining its property. To recover, claimant must establish by a preponderance of the evidence that Respondent breached its duty of reasonable care and that the negligence of Respondent proximately caused her injury. (Acme Carrier, Inc. v. State (1977), 32 Ill. Ct. Cl. 83.) To show negligence, the Claimant must show that the State was negligent in the maintenance of the Parkway in that it had actual or constructive notice of a dangerous condition. (Noonen v. State (1983), 36 Ill. Ct. Cl. 200.); (Nolan v. State (1983) 36 Ill. Ct. Cl. 194.). The State is not an insurer of the safety of invitees, but must only exercise reasonable care for their safety. (Fleischer v. State (1983), 35 Ct. Cl. 799.)

The area in the Parkway where the claimant fell, identified by Claimant in Claimant's Exhibits 2, 3, & 4, shows an open and obvious sinkhole filled with leaves and adjacent to a sewer drain. The exhibits show the Parkway slopes downward from the fence to Joliet Road. The claimant testified that, after exiting her vehicle, she took approximately six steps before she fell. The driveway where she parked is about six feet from the sinkhole area where she fell. The claimant then necessarily walked from her car directly across the sewer or around it, onto the sinkhole area, and then fell. Claimant testified she was looking downward, and therefore with the exercise of reasonable caution, should have seen the slope, sewer, and sinkhole area even if it was covered with leaves. Claimant also testified that she has been collecting golf balls in the area for several years.

In Sepsey v. Archer Daniel Midland Co. (1981), 97 Ill. App. 3rd 867, 423 N.E.2nd 942, the Illinois Appellate Court held that a visitor is responsible to see any open and obvious dangers and thus is expected to discover them. A landowner is not required to give precautions or warnings where possible danger is evident in order to exercise the duty of reasonable care toward invitees. The claimant herein disregarded the open and obvious condition on the parkway, and walked onto the sinkhole area, which she testified was covered with leaves. Our Supreme Court cautioned, “Persons who own, occupy, or control and maintain land are not ordinarily required to foresee and protect against injuries from potentially dangerous conditions that are open and obvious.” Bucheleres v. Chicago Park District, 171 Ill.2d 435, 447-48, 216 Ill. Dec. 568, 665 N.E.2d 826, 832, (1996).

The claimant has also failed to prove actual or constructive notice of the defect. IDOT records and testimony indicate that no phone complaints were made about the sinkhole to IDOT for the six months prior to the fall. IDOT records and testimony revealed that no previous accidents or complaints were made about the sinkhole for the two-year period prior to the accident. Though the claimant testified she previously searched for golf balls in the parkway, she never testified that she made complaints about the sinkhole either before or after the accident. Claimant presented no evidence as to how long the sinkhole existed. The photographs of the parkway show an open and obvious depression next to the sewer. Neither the testimony nor the photographs are instructive as to the length of time the depression existed.

After the claim was filed in the Court of Claims IDOT went to the parkway to evaluate ownership, control, and maintenance issues. The parkway area is not a designated walkway designed by the Respondent and does not appear to be an area generally used by the public, though no restrictions existed prohibiting individuals from using the parkway as a walkway.

The Claimant urges the Court to find constructive notice based upon Stojentin v. State of Illinois, 55 Ill. Ct. Cl. 292 (1999). In Stojentin, however, the Claimant tripped and fell in a pothole on a street crosswalk. The Claimant here fell in a parkway. Parkways are not constructed with the intention of accommodating the kind of pedestrian traffic that is commonly associated with sidewalks. (Marshall v. City of Centralia (1991), 155 Ill. Dec. 802, 570 N.E.2d 315, 319.) The duty of care with regard to parkways is not identical to the care with regard to sidewalks. Pedestrians who leave the sidewalk cannot assume that parkways are free of defects or undulations as they otherwise could when traveling on the sidewalk supra, at 319. Municipalities cannot be held liable for parkway conditions, which are customary, even though such conditions may be slightly dangerous. The Illinois Supreme Court in Marshall, supra, at 319-320, citing (Schaut v. St. Marys (1940), 141 Pa.Super. 388, 392, 14 A.2d at 585).

To create a duty for the State to seek out and level every sinkhole or parkway depression on State property where persons might walk would make the State an insurer of the safety of all of those who walk on its property. The Case law has consistently held to the contrary and that the State is not an insurer of the safety of all who walk on its property.

For the foregoing reasons it is hereby ordered that this claim be, and hereby is, DENIED.

SPRAGUE, C.J.