PERRY FRANKLIN v. STATE OF ILLINOIS BOARD OF TRUSTEES UNIVERSITY OF ILLINOIS (2012)

OPINION

This claim is before the Court upon a recommendation from Commissioner George Argionis following an evidentiary hearing. Claimant, PERRY FRANKLIN, seeks damages in the amount of $12,492.07 due to an injury allegedly caused by the negligence of the State. The following witnesses and evidence were presented:

Claimant testified that on Thursday, January 20, 2005, he attended a basketball game at the University of Illinois-Champaign Urbana (“U. of I.”) with his friend, Lawrence Moore, where he suffered a closed fracture and sprain of his left ankle as well as bruising to much of the left side of his body. Claimant alleges that his injury occurred when he was walking down a flight of concrete steps and his left foot became caught in some loose cables, which he claims the State negligently allowed to come loose from duct tape that was meant to hold the wires flat at the back of the stairwell.

Claimant stated that Mr. Moore's brother-in-law provided free tickets to the game. Mr. Moore picked Claimant up from his home in Chicago around 3:30 p.m. on the day of the incident. When they arrived at Champaign, the game had not yet started. After purchasing some team merchandise and picking up their tickets at will call, Claimant and Mr. Moore realized their tickets were for floor seats, and they traveled into the Assembly Hall to get seated. Claimant stated this was his first visit to the U. of I. An usher led them along an aisle partway down the seating area, where a large, concrete-edged entrance into the stadium interrupted the lower rows of seating from below. An operating booth replaced regular seating in the area above the entranceway. The aisle led to a wide set of steps, at a right angle to the aisle, and the steps led to the floor. The two men turned right from the aisle into the stairway to descend to the floor, encountering a low concrete wall with a banister on their right side, between them and the operating booth, and seating on the left.

Claimant stated that he followed Mr. Moore as they walked down the steps to their seats on the floor. Claimant stated that he was carrying a bag by the handle in his left hand and was wearing new winter boots, laced up. His right hand was free. He stated that he does not wear corrective lenses. Claimant was not sure how many stairs he descended before his foot was caught by a cord. When his foot was caught, he reached for the banister along the wall but fell three or four stairs before he was able to stop himself. He stated that he twisted as he tried to stop himself, and Claimant believed his twisting caused the wires to wrap completely around his ankle. He stated that he struck his shoulder, hip and ankle on the concrete, and ended up on his back lying on the stairs. Claimant stated that there were several wires around his foot, and that the wires resembled a television cable, being clear and smaller in circumference than a dime. Claimant also testified at a previous time that only one wire caught his foot, and that it was black. Claimant stated he did not see or feel the wires until the wires caught him around the ankle.

Claimant stated that after he fell and was lying on the stairs, a man nearby wearing an orange jacket came to the scene and called for help using a walkie-talkie. A technician arrived within a few minutes and untangled Claimant's ankle from the wires. Claimant believed both men were employed by the U. of I. Claimant stated that the technician then taped the wires to the concrete from where the wire entered the stairwell on the right, in the first row of seats above the short wall, to where the wire exited the stairwell into the row of seats on the left of the stairs. Claimant stated he was on the stairs after the incident for about 10 minutes before some people dressed in white came to him, helped him stand, and took him down the stairs to a medical facility within the Assembly Hall. Claimant believed one of these people was a medical practitioner. During this time Mr. Moore stayed with Claimant; the game had not yet begun.

At about this time, as testified to by Kevin Ullestad, assistant director of the Assembly Hall, a Property Damage/Public Injury Report was filled out by U. of I. employees and filed with Mr. Ullestad and other authorities. The report indicates that the incident was reported via radio, and that the incident occurred in the aisle of section A37. Under “Description of Accident/Damage,” a handwritten note read as follows: “Patient stated: ‘I tripped on cables and fell down the stairs.’ Patient indicated L ankle pain. Patient denied head, neck or back pain. Patient ambulatory with assistance. Patient denied loss of consciousness…”

Claimant testified that he experienced sharp pain at a level of 8 on a 10 point scale in his left ankle when he was taken to the medical facility. He stated that the technician showed him that his ankle was starting to swell. For about 20 minutes, the technicians put ice on his ankle before paramedics came to the Assembly Hall and took a report from Claimant about what happened and where the pain was located. The paramedics then placed Claimant in a wheelchair and transported him by ambulance to nearby Provena Hospital (“Provena”).

At Provena, Claimant's left ankle was x-rayed and he received an “air boot” that supported his ankle and allowed him to walk if he used crutches. Claimant stated that he wore the boot continuously for about a month and a half, except while sleeping and bathing. Provena also administered pain medication to Claimant, which gave him partial relief.

After this care, about 80 minutes had passed since the incident, but the basketball game was still in progress and Claimant was returned to the Assembly Hall. He stated that Assembly Hall employees provided a wheelchair for him, and he sat in the handicap area for the remainder of the game. Mr. Moore drove Claimant home.

The next day, Claimant did not go in to his job as a hair dresser because he was experiencing pain in his left shoulder, the left side of his neck and his left hip, as well as his ankle. Claimant rested all day and could not move his left arm without pain. For the next week, Claimant stayed off his foot and elevated his left leg. He used crutches with the boot for about 3 months, and the boot alone for an additional 2 months. Claimant also obtained heated massage treatment for the left side of his body from Dr. Kanagaraju about a week after the incident. Claimant stated that the treatment relieved much of his pain and he felt much better by the time of his next massage appointment the following week.

Claimant stated that he still experiences pain in his neck and left shoulder while sleeping, exercising or working, which he attributes to his fall at the Assembly Hall. Claimant stated his shoulder has never been injured before or after the incident, and that his neck is constantly in a low level of pain. Claimant stated that his neck pain keeps him from exercising. Claimant stated that prior to the incident he worked out every day with weights or aerobic exercise, or by playing sports such as basketball, baseball and tennis at his health club, Lifetime Fitness. Claimant stated that he was not able to exercise at all for about a year after the incident because he could walk for only short periods of time, and even this exertion caused him pain. He attempted to play baseball and basketball after his injury but pain forced him to quit. He stated that he did not try again to play in five years following his injury because he was afraid of injuring himself further.

Claimant also stated that prior to his accident he worked full time at a hair salon, Dazzle's, where the duties of the job required him to be on his feet all day. Claimant stated that after the accident he stayed away from work for about 4 weeks and that when he returned, he could not engage in the physical aspects of the work and merely prepared solutions for the other stylists. As an average income, Claimant stated he earned $500 to $1,000 per week prior to his accident, and also was required to pay $200 per week to keep his place at the salon, regardless of how many days he worked. Claimant therefore believed he had lost about $4,000 of wages, due to his injury.

Lawrence Moore, Claimant's friend and a witness of the accident, also testified. Mr. Moore stated that he received free tickets to the game from his brother-in-law, who is an assistant coach for the U. of I. team. Mr. Moore, like Claimant, had never entered the Assembly Hall before this time. Mr. Moore stated they arrived early because they were not sure whether he would need to find his brother-in-law or take extra steps to obtain the tickets. Because they arrived early, only a few people were in the Hall at the time of the incident.

Mr. Moore stated that as they were finding their seats, when they were about halfway to the floor, he preceded Claimant down the stairway and did not notice the wires until after Claimant had fallen. Mr. Moore stated he heard Claimant utter an expletive right before he fell, causing Mr. Moore to turn around in time to watch Claimant tumble 2 or 3 steps, come to rest, and grab his ankle while grimacing in pain. Mr. Moore stated that when he looked at the cable, he could see it “sticking up between the steps.” He recalled the cable was across the steps and taped to the steps, and that it was a dark color. He stated that after Claimant fell and some U. of I. staff members arrived, he heard one of them tell another to “retape it or tape it down more, the cord.” Mr. Moore recited the same version of events as Claimant had done regarding the minutes following Claimant's fall. He stated that Claimant called him from the hospital after Mr. Moore had sat down, and that Claimant returned part way through the game; Mr. Moore could see him in the handicap seating. Mr. Moore stated he drove Claimant home after the game.

Physician Assistant Allen Thomas testified to Claimant's injuries in the hours following the incident. Mr. Thomas stated that he had worked at Provena Covenant Hospital for about two years prior to the incident, and had finished his training and certification in 1996. Mr. Thomas stated that medical forms from the time of the incident indicated that the mechanism of Claimant's injury was tripping down stairs, that Claimant reported tenderness at his left ankle, and that an x-ray showed a simple, closed fracture of the lateral malleolus, i.e. the bone of the ankle on the outside of the leg broke but did not penetrate the skin. Mr. Thomas stated that Claimant was given Ibuprofen for mild pain, and was taught to use the walking boot with crutches.

Kevin Ullestad, the direct of the Assembly Hall, also testified. He stated that the Hall is a multipurpose arena used for concerts, circuses and ice shows, as well as sports games. He stated that the Hall has been used consistently for the 15 years he has worked there. He described the Hall as having three sections labeled A, B and C, with A closest to the floor and C furthest from it. Mr. Ullested stated that many cables are used in the Hall, and some of them cross an aisle in the section of the Hall labeled as A37, where Claimant allegedly fell. This cable is used for the scoreboard at basketball games, and runs from the scoreboard to the scoreboard operator's booth, also located in A37. Mr. Ullestad stated that the basketball season runs from October to early March, so that the cable is taped down at the beginning of each season and not removed until the end of the season. He stated that a single cable is the only one that crosses the stairs, that it is completely taped down, and that it does not cross stairs anywhere else. He stated that the duct tape holding down the cable would suffer weathering from mopping.

Mr. Ullestad testified to the process of preparing for a large event like a basketball game. He stated that at least 15 minutes to an hour before opening the doors to the public, the Assembly Hall staff would perform a walk-through inspection to ensure the aisles are clear and safe. Mr. Ullestad stated that the U. of I. maintains an incident report system that allows staff to report the time, place and manner of accidents that occur on U. of I. property. He stated that he has seen 12 or 13 incidents per year in the Assembly Hall, beginning in 1996 when he joined the U. of I. staff. Mr. Ullestad stated that he had never received notification, prior to Claimant's fall, that a cable caused someone to fall. He also stated that he worked the game at which Claimant fell, and that when he inspected the cable area the day after the incident, he observed the cable properly taped to the back of the stairway and did not see any new, unweathered tape in Section A24.

Another U. of I. employee, Richard Mingee, also testified. Mr. Mingee stated that the Assembly Hall is a circular, self-supported structure. He confirmed that a lower crosswalk separates the A and B seating sections, which are also bisected longitudinally by aisles of stairs. Mr. Mingee stated that in the section at issue, two cables run across the length of the stairway - a coaxial cable and a multi-conductor cable - one of which has a diameter of a quarter inch and the other of which has a diameter of three-eighths of an inch. He stated that the coaxial cable is flexible, unlike standard cables. He stated further that the cables are tucked up to the riser of the stairway, that they are laid down before the season starts, and that they are not removed until the end of the season. Mr. Mingee did not know positively who had taped the cables in the 2005 season. He stated that the cables would be periodically checked by several people, mainly ushers, as part of a general safety inspection, but no inspection of the cables in particular was carried out. Mr. Mingee stated that although he repaired cable issues two or three times in the 15 years before this accident, he did not repair any problems with the cables involved in this incident.

LEGAL ANALYSIS

To state a cause of action for negligence, Claimant must allege facts establishing the existence of a duty, breach of that duty and an injury that proximately resulted from the breach. Ondes v. State, 43 Ill. Ct. Cl. 272, 276 (1991). The existence of this legal duty “is a question of law which is determined by the Court.” Id. Although State employees owe visitors a duty of reasonable care to maintain the premises, the State is not an insurer of the safety of persons who visit State buildings. Steger v. State, 46 Ill. Ct. Cl. 262, 266 (1993).

To prove the duty element of negligence, a claimant must show by a preponderance of the evidence that the State had actual or constructive notice of the defect. Scroggins v. State, 43 Ill. Ct. Cl. 225, 227 (1991). The standard for proving constructive notice requires a claimant to prove that a defect was “substantial enough, and exist[ed] for such a length of time that reasonable persons would conclude that immediate repairs should be made or warning signs posted.” Stege v. State, 27 Ill. Ct. Cl. 399, 403 (1972); Kling v. State, 54 Ill. Ct. Cl. 305, 309 (2001). Even if a hazardous condition exists on State property, the State must be given actual or constructive notice of it and a reasonable opportunity to remove or remedy the hazard before a legal duty will arise. Ott v. State, 47 Ill. Ct. Cl. 231 (1994). Catherine Carlson v. Board of Regents, 47 Ill. Ct. Cl. 171 (1994) (where a student slipped on a wet bathroom floor, constructive notice was shown by evidence that numerous students had complained about the condition causing the slippery floor); Netter v. State, 55 Ill. Ct. Cl. 317 (2003) (actual notice shown).

In closing argument, Claimant asserted that the facts of this case are ““akin to” res ipsa loquitur. This doctrine allows proof of negligence by circumstantial evidence when something that caused the injury is shown to be under the exclusive control or management of the party charged with negligence and the occurrence is one that, in the ordinary course of things, would not have happened if the person so charged had used proper care. Durbin v. State, 52 Ill. Ct. Cl. 236, 243 (1965). However, because Claimant did not set forth evidence proving Respondent had exclusive control over the cables, we find this doctrine inapposite.

Claimant did show that his fall and his injuries were caused by the loose cables. However, Claimant has provided no evidence that the defect of the loose cables existed for any length of time prior to the moment of his injury. This case is similar to one in which a claimant who slipped on an orange juice spill in a State building failed to show that the State had notice of the spill prior to her fall. Stimage v. Ill Dept. of Pub. Aid, 52 Ill. Ct. Cl. 173 (1999). In another case with similar facts, Byrd v. State, 50 Ill. Ct. Cl. 280, 285 (1997), a claimant failed to show evidence that the managers of a State-owned building had actual or constructive notice of debris on stairs that allegedly caused her to slip and fall down the stairs.

Mr. Ullestad testified that the cables are laid at the beginning of the sports season, around October, and are not taken up again until the end of the season in March, some six months later. He stated that many kinds of events occur in the Assembly Hall, that the Assembly Hall holds 16,000 to 17,000 people, and that Assembly Hall staff carry out a safety inspection prior to every event to ensure walkways are in a safe condition. However, he also stated that no incident reports exist from 1996-2005 documenting a trip or fall over loose cables at the Assembly Hall. Richard Mingee, the electrician in charge of laying the cables each year, testified that he has dealt with cable problems only two or three times during his 15-year tenure at the U. of I., and has never repaired problems with these particular cables. This testimony shows that despite the frequent attendance of tens of thousands of people at the Assembly Hall in the past ten seasons, many of whom have presumably walked up and down the stairs in Section A37, the Assembly Hall had not received notice of an injury caused by the cables, or a need to repair them. Although the lack of reports testified to by Mr. Ullestad and Mr. Mingee does not prove that the defect did not exist, Claimant has not provided any proof that Respondent had actual knowledge of the defect, or that it existed in such a blatant form or for such a length of time that knowledge could be imputed to Respondent.

Claimant's burden of proof required him to show by a preponderance of the evidence that Respondent owed him a duty to protect him from loose cables. To prove that this duty arose, Claimant was required to provide evidence that Respondent had actual or constructive notice that the defect existed. Because Claimant did not provide any evidence that Respondent was on notice of the loose cables, his claim must be denied.

IT IS HEREBY ORDERED that this claim be denied.

KUBASIAK, J.