FRED ROBINSON v. STATE OF ILLINOIS DEPARTMENT OF TRANSPORTATION (2012)

ORDER

THIS MATTER is before the Court upon a recommendation from Commissioner Argionis following an evidentiary hearing held on January 7, 2011. Claimant, Fred Robinson, filed his Complaint sounding in negligence on August 6, 2007 arising from an August 11, 2006 incident. Claimant's claim is for personal injuries he received due to falling concrete from an overpass while driving a truck on an Illinois highway. Specifically, Claimant seeks damages in the amount of $100,000, including reimbursement for two surgeries, physical therapy, pain and suffering and lost wages.

Facts

On August 11, 2006, Claimant was driving his delivery truck as an employee with Interstate Wrapping. Among other duties, Claimant was in charge of making deliveries of paper goods to stores, bakeries and car washes throughout the Chicago-Land area. On the morning of August 11, 2006, Claimant had traveled from 107th and Cicero to Interstate 290 before merging on to Interstate 55 traveling southwest toward St. Louis. After traveling for approximately 10 minutes on Interstate 55, Claimant passed under the bridge overpass of County Line Road (Illinois Department of Transportation, “IDOT” bridge structure 016-0587). Claimant testified he was traveling in the middle lane and that traffic was light on the highway. While driving the truck under the overpass, a piece of concrete measuring about six inches long and six inches thick fell from the underside of the overpass deck shattering Claimant's windshield and striking Claimant on his left shoulder. As a result of the falling concrete brick, the windshield on the driver's side of the truck was shattered. Subsequently, Claimant was taken to Hinsdale Hospital via an ambulance. At this point, he testified he was experiencing pain in his left shoulder at a level of 10 on a 10 point scale. The hospital staff put Claimant's arm in a sling and sent him for x-rays of his left clavicle. The x-rays revealed a transverse fracture of the distal fourth of the left clavicle along with a cephalad displacement of the proximal fracture fragment by approximately 5 mm. (See Group Exhibit A, Hinsdale Hospital Records 3-21). Additionally, the hospital staff suctioned glass from Claimant's head and stitched his lip before releasing him with pain medication. In the first month or two after the injury, Claimant testified he had difficulty falling asleep at night as he was unable to sleep on his left side due to the shoulder injury. Additionally, he required assistance with daily living activities such as bathing, cleaning his house and getting dressed. He could not play with his grandchildren.

Approximately a week after the incident, Claimant met with Dr. Pfantz, a doctor at the University of Illinois Medical Center at Chicago (“UIMC”). Dr. Pfantz referred Claimant to a bone specialist, Dr. Goldberg, who diagnosed a fracture of Claimant's left clavicle. Prior to the August 11, 2006 incident, Claimant testified he had not sustained any injuries to his left clavicle and had full range of motion in his arm. Dr. Goldberg recommended a treatment plan consisting of physical therapy, which Claimant began in September of that year at Maximum Rehabilitation Services, Limited (“Maximum Rehab”). Additionally, Claimant testified Dr. Goldberg recommended a lifting restriction of 30 to 35 pounds and told Claimant not to work for a period of time. Because of these restrictions, Claimant was forced to abstain from his usual 40-hour workweek. On September 5, 2006, Claimant began his physical therapy at Maximum Rehab where it was recommended he have approximately three physical therapy sessions a week, for four weeks. (Maximum Rehab Records, P. 144-145). Respondent stipulated at the January 7, 2011 hearing that Claimant's clavicle injuries at the emergency room following the accident, and Claimant's physical therapy up through the date Claimant was assaulted were specifically caused by, and related to, the accident.

In addition to Claimant, the witnesses who testified at the hearing were Illinois Department of Transportation employees Sarah Wilson and Christine Ridge. Ms. Wilson holds the position of Bridge Maintenance Engineer for the Chicago metropolitan area, “District One”. In that capacity she oversees maintenance of its 1,450 bridges. Specifically, she coordinates the operation and maintenance by directing forty to fifty engineers, technicians, maintenance workers and two bridge inspection engineers who report directly to Ms. Wilson. Ms. Wilson also stated that her position includes the formation of an action plan for bridge repair and rehabilitation. For example, Ms. Wilson testified that an action plan may involve the “patchwork type of repair” such as ““scaling”, in which case an IDOT crew would safely chip off loose pieces of visible concrete. Alternatively, Ms. Wilson stated that inspectors may make initial repair work recommendations at their discretion, without waiting for Ms. Wilson's review of the report.

Ms. Wilson provided general information regarding the three main components of a bridge: the driving bridge deck, the substructure and the superstructure. The substructure consists of all aspects of the bridge leading up to the steel beams, the superstructure. The superstructure is a set of weight-bearing steel beams which supports the deck. The deck is the portion of the bridge that sits on top of the superstructure and consists of rebar just below the surface of the road and a bottom concrete portion. This bottom portion of the deck is called the “soffit” and sits directly upon the superstructure. Ms. Wilson testified that soffit is the visible material on the bottom of the deck. Specifically for the County Line Road Bridge, Ms. Wilson stated that IDOT is responsible for maintaining and improving the superstructure and the substructure, along with the portion of the deck that is below the wearing and top surface. She testified that delamination is the cracking of the concrete or the separation of the soffit from the reinforcing steel. When the soffit falls off or is removed from the bridge, as in this matter, the process is entitled “spalling”.

Concerning inspection, Ms. Wilson testified that each bridge in District One is to be inspected approximately every two years. Inspectors give the bridges condition ratings on a scale from 1 to 9, with a rating of 9 meaning the bridge was brand new and a rating of 1 meaning the bridge was in the worst condition and would necessitate its closing. These ratings are based upon criteria from the State and Federal government. Among other factors, the condition ratings are based on the percentage of bridge deck soffit square footage that exhibit spalls and delamination. For example, a condition rating of (6) is satisfactory based upon the amount of spalls and further delamination, while a condition rating of (5) denotes that additional spalls and further delamination occurred. Specifically, the County Line Road Bridge was rated as a (4), or as in poor condition, on June 28, 2005, a year before Claimant's accident. This low rating was due in part to the spalling of 29 percent of the soffit. Specifically, IDOT reports from 2003, 2004 and 2007 state similar shorthand inspection notes regarding the County Line Road Bridge condition: “Deck-29% of soffit spalled w/exp. Corroded rebar; 45% chloride contamination; hvy haunch crcking; deck is lifting on both ends +/- %. Random crcking throughout wearing surface w/num pop-outs & sm spalls exposing cathodic grid.”

Ms. Wilson agreed that a rating of (4) would “send up some flags in the department”, and would qualify the bridge in question for placement in the Illinois Multi-Year Program. The Multi-Year Program is designed to provide funding for all major IDOT projects, including road widening, traffic signals and bridge repairs. Specifically, Ms. Wilson testified that although the County Line Road Bridge in question had been rated as a (4) since 2000, it was not placed into the Multi-Year Program until approximately 2007, the year after Claimant's accident. She reasoned that although the bridge was a candidate for the Multi-Year Program due to its condition rating of (4), budget and other priorities had precluded these repairs.

The second witness from IDOT, Ms. Christine Ridge, is the Claims Manager for District One. She oversees a staff of six claims representatives and clerical staff. Specifically, Ms. Ridge stated that as a matter of policy, she checks records during the three months prior to a reported incident to determine whether similar accounts were reported. For the present matter, Ms. Ridge testified that no reports regarding the County Line Road Bridge were processed in the three months preceding Claimant's accident.

Although Ms. Ridge testified regarding the lack of incidents in the three months preceding Claimant's accident, the witnesses and exhibit evidence provide information of reports of concrete spalling at the same location in previous years. The first incident report was made on April 23, 1996, by the Elgin State Police. The report indicated a brick sized piece of concrete debris fell from the County Line Road Bridge onto the 1-55 expressway. A second report was made from a police officer on May 8, 2001, which reported concrete on the shoulder of 1-55 appearing to have fallen from the bridge. In addition to the 2001 observation from a police officer, a 2001 Bridge Inspection Report prepared by a bridge inspector included several recommendations for significant repair to the County Line Road Bridge deck. Lastly, on September 24, 2003, a claimant in a separate action in this Court alleged a chunk of concrete fell from the bridge and damaged his vehicle while that claimant was traveling on Interstate 55. After the September 24, 2003 incident, Ms. Wilson testified a field inspector was called to inspect the bridge on November 6, 2003, and later reported that although there was no evidence of loose concrete, there were spalled areas visibly indicating where previously concrete had fallen. At that time, IDOT sent a crew to do some scaling work. However, at trial, Ms. Wilson testified that scaling “does not help keep the bridge from continuing to deteriorate”.

Analysis

While the State is not an insurer against all accidents which may occur by reason of the condition of its highways, it has a duty to utilize reasonable diligence in maintaining highways in a reasonably safe condition. Scroggins v. State, 43 Ill. Ct. Cl. 225 (1991); Wing v. State, Ill. Ct. Cl. 473 (1997). To recover under a negligent highway maintenance claim, a Claimant must show by a preponderance of the evidence that the State had actual or constructive notice of the defect, and that the State had breached its duty. Piggot v. State, 26 Ill. Ct. Cl. 262 (1968); Scroggins v. State, 43 Ill. Ct. Cl. 225 (1991).

Here, Claimant has presented sufficient uncontroverted evidence to prove that his August 11, 2006 injury was caused by the concrete that fell from the County Line Road Bridge. Thus, in analyzing the present claim, the threshold question is whether the State had actual or constructive notice of the falling concrete and failed to take reasonable steps to correct or warn of the dangerous condition. We have previously held that notice can be proven through testimony of bridge inspectors relating to a continuous or worsening condition of falling concrete. Robinson v. State, 35 Ill. Ct. Cl. 185 (1981). In the instant case, we find that Claimant has demonstrated by a preponderance of the evidence that the State had actual and constructive notice that the County Line Road Bridge over Interstate 55 was in a dangerous condition and failed to repair the bridge to a reasonably safe condition, in breach of its duty to motorists on its highways.

Specifically, the testimony from witnesses at the hearing before the Commissioner and evidence of prior IDOT reports, demonstrate a history of incidents involving falling concrete at the bridge in question. As held in previous bridge negligence cases, once concrete begins spalling, the vibrations of traffic will contribute to the bridge's continual deterioration unless repairs are made to the concrete itself. Id. The aforementioned reports in the years preceding Claimant's accident indicate the State had actual notice that the bridge was in a dangerous condition and that minor repairs, such as the scaling work after the 2003 incident, would not prevent the bridge from deteriorating further.

Additionally, this Court concludes the State had constructive notice of the dangerous condition at the County Line Road Bridge. The precedent for proving constructive notice requires a Claimant to prove the defect was substantial enough and existed for such a length of time that a reasonable person would conclude that immediate repairs should be made or warning signs posted. Stege v. State, 27 Ill. Ct. Cl. 399 (1972); Carlson v. Board of Regents, 47 Ill. Ct. Cl. 171 (1994). Whether the State had constructive notice of a condition depends on the facts of each specific case. Stills v. State, 41 Ill. Ct. Cl. 60 (1989). In this case, a 2001 inspection report provides a list of recommendations from the inspector including the recommendation to remove and replace the deck and repair the concrete overlay. Additionally, the report had an assigned priority code of “1”, indicating that the action should take place within the year. Ms. Wilson testified that IDOT, apparently ignoring this report, failed to order substantial repairs until 2007, the year after Claimant's accident, when the bridge was finally entered into the Multi-Year Program. IDOT's second witness, Ms. Ridge, testified that IDOT had no notice of problems with the County Line Road Bridge in the three months leading up to Claimant's accident. However, IDOT incident reports from 1996, 2001 and 2003 present evidence showing an ongoing history of falling concrete at this location. Thus, the evidence supports a finding that a defect existed at this location for several years and the State had knowledge of that defect.

While Respondent acknowledges that it knew of the deteriorating conditions, they allege the inspection reports and evidence of accidents did not give notice of the need for immediate attention and repair. Thus, Respondent argues they acted within the reasonable standard of care. Notwithstanding the Respondent's argument, IDOT knew that the condition, if unrepaired, would continue to worsen since delamination and spalls increase over a period of time. In conclusion, the inspection reports preceding Claimant's accident provide significant evidence of Respondent having notice of the dangerous condition and their failure to repair the bridge to a reasonably safe condition.

Having concluded Respondent had notice of the dangerous condition of County Line Road Bridge and is subsequently liable for Claimant's injuries; this Court turns its attention to the issue of damages. Claimant has the burden of proving his damages with certainty. Gildehaus v. State, 46 Ill. Ct. Cl. 176 (1993). Claimant testified that he was physically assaulted on October 7, 2006, some two months after the accident at Country Line Road Bridge, by a group of men while buying gas. At the hearing Claimant testified that during the assault, several parts of his body were hit or kicked, but that his left shoulder was not touched and the incident had no effect on the clavicle injury he sustained in the County Line Road Bridge accident. The evidence does not support this assertion. Specifically, records from Claimant's physiotherapists at Maximum Rehab show that throughout September 2006, Claimant rated his pain as decreasing. For example, on September 5, 2006, Claimant rated his pain as 6-7 out of 10 while on September 29, 2006, Claimant decreased his pain rating to 3 out of 10. However, at his first physiotherapy appointment following the October 7, 2006 assault, Claimant reported his pain had increased to 8 out of 10. Additionally, an October 10, 2006 note recorded by Dr. Jason Zook, M.D., indicates Claimant reported that “he was assaulted by multiple men who struck him on the side of his injury of his clavicle,” and further, that “his deformity has increased over what it was previously.” Dr. Zook's examination of Claimant's post-assault x-ray showed further displacement of the clavicle: “a halo of bony callous demonstrating that this fracture was likely healing prior to his [assault] injury.” More importantly, Claimant's doctors at UIMC opined that the injuries to Claimant's clavicle prior to the October 7, 2007 assault would likely heal, “without need for surgical treatment”.

Claimant has proven that the Respondent's negligence was the proximate cause of the initial injury to his left clavicle. But the conclusion that Respondent's negligence was also the proximate cause of Claimant's increased pain in his left clavicle and surgery on February 14, 2007, is doubtful. Courts have held that an intervening injury may limit Claimant's recovery. Stojentin v. State, 53 Ill. Ct. Cl. 82 (1999). In this case, Claimant's own statements regarding his increased pain to Maximum Rehab, the medical evaluations with Dr. Zook, and the opinions of the UIMC Doctors lead this Court to the reasonable conclusion that Claimant did not meet his burden of proving that Respondent's negligence was the proximate cause of the surgery following the October 7, 2006 assault. However, the medical records also indicate on October 5, 2006, two days before the assault, Claimant had been prescribed to continue another four week period with his physical therapy at Maximum Rehab, until November 5, 2006. (Maximum Rehab Records, P. 156-166). As evidenced by the medical records and Claimant's statements regarding decreasing pain levels, this Court will award damages for Claimant's treatment between August 11, 2006 and November 5, 2006, including lost wages, loss of normal life and pain and suffering.

Claimant's medical costs between the aforementioned applicable dates total $14,774.22. Specifically, this cost includes $2,937.36 for Claimant's emergency room visit on August 11, 2006; $754.86 for x-rays from UIMC on August 23, 2006; and $11,082.00 for physical therapy at Maximum Rehab from September 9, 2006 to November 5, 2006. Additionally, this Court awards Claimant $8,472.00 for 12 weeks of lost wages at the rate of $17.65 per hour, 40 hours per week. Claimant testified that between August 11, 2006 and November 5, 2006, he experienced a moderate loss of daily activities, such as playing with grandchildren and independent bathing and dressing. He also testified that he endured acute pain for a few days after the accident, which within a month became decreased and manageable. Relying on past pain and suffering awards, this Court finds that Claimant's non-severe injury and recovery entitles him to the award of $4,000 for pain and suffering. Durbin v. State, 52 Ill. Ct. Cl. 236 (2000).

IT IS HEREBY ORDERED that for the above reasons, damages be awarded to Claimant FRED ROBINSON in the amount of $27,246.22.

BIRNBAUM, J.