SHARON SMALARZ v. STATE OF ILLINOIS (2013)

OPINION

This claim is before the Court following evidentiary hearings on April 20, 2012, May 7, 2012, September 27, 2012, upon a recommendation from a Commissioner.

Sharon Smalarz (“Claimant”) brings this negligence action against the Respondent, State of Illinois, for injuries she sustained on October 15, 2005, due to the alleged negligence of Respondent. Claimant filed the present Complaint with the Court of Claims on October 15, 2007.

FACTS

Claimant filed her claim seeking an award of fifty thousand dollars ($50,000.00) for injuries sustained after falling at a State of Illinois facility known as Tinely Park Mental Health Center (“TPMHC”). TPMHC is comprised of several buildings. After Hurricane Katrina, many of the victims became displaced from their homes and TPMHC, located at 183rd and Harlem in Tinley Park, was being used to house between one hundred and one hundred twenty survivors of Hurricane Katrina.

Claimant is an avid crocheter and called TPMHC to donate some of the afghans that she had crocheted to Hurricane Katrina victims. Claimant received a call back and was asked to bring two of her afghans for two little girls celebrating their birthdays at Spruce Hall located at TPMHC. After receiving the request, Claimant packed up two afghans and went to Walmart to pick up and outfit for each of the girls. On October 15, 2005, at approximately 12:30 p.m. Claimant arrived at Spruce Hall for the girl's birthday parties. The weather on that day and at that time was clear. This was Claimant's first visit to Spruce Hall and she used the main entrance to enter the building.

Upon leaving the building, Claimant exited from the same door that she used to enter the building. Two other women and one maintenance man stood near the exit as Claimant exited the building. Unbeknownst and unnoticed to Claimant upon entering the building there is a two and three fourths inch (2 3/4″) change of elevation from Spruce Hall's foundation to the sidewalk/walkway which leads to the building. There is no significant color contrast in the cement walkway leading up to Spruce Hall. Photo images introduced at the hearing differ from the date of the incident only in that a paint stripe has since been added to demarcate the foundation of the building from the walkway.

As Claimant approached the area where the foundation of the building met the walkway it looked like flat cement. However, as she walked towards her car, her foot went over the edge, and she fell, hitting her breastbone and popping ribs on both sides. The fall also caused Claimant to break her left hand. At the time Claimant fell, there was no warning, marking, or signage to notify Claimant that there was such a great change of elevation in that area.

Immediately after her fall, Claimant drove herself to the hospital and sought medical treatment. Claimant's undisputed medical records reflect that Claimant suffered a broken left hand and two fractured ribs. Claimant incurred medical expenses in the amount of $7,653.85 as a result of her emergency room treatment, follow up visits with her orthopedic doctor, and medical supplies and prescription medications which she required during her six week recovery.

During her recovery, Claimant was physically incapable of living her normal life. She was unable to clean, cook, or even get out of her chair, she had to sleep in a recliner, she needed a lift to use the toilet, and she could not care for her young granddaughters. In addition, she was unable to work her data entry job resulting in lost wages of $2,415.00. Claimant has since made a full recovery.

Sergio Cappello, the station engineer chief of TPMHC testified that Spruce Hall was constructed in 1965, and that Claimant fell where the foundation of the building and the sidewalk meet. Furthermore, Cappello testified that the concrete at issue has always been part of the building. Respondent offered testimony that the foundation of Spruce Hall could not be changed to meet the sidewalk, but did not offer any testimony of why the sidewalk/walkway leading up to the foundation of Spruce Hall could not be altered to meet the foundation of the building to eliminate the drastic change in elevation at the point where Claimant fell.

Cappello further testified that there has never been an incident regarding the “step” at issue in the past and that he was unaware of any state or municipal building violations for Spruce Hall. Likewise, Cappello is unaware of any ordinance or rule that would require Respondent to paint the concrete for the change of elevation between the building and the sidewalk.

Cappello further testified that at the time of Claimant's fall, Spruce Hall was being used as a shelter for between one hundred and one hundred twenty survivors of Hurricane Katrina, and that everyone used the entrance at issue to enter and exit Spruce Hall unless a ramp was needed to enter the building. Those requiring a ramp used the entry at the back breezeway of Spruce Hall.

Rennie R. Smith, III, is the public service administrator and directs administrative services for the Department of Human Services. He worked at TPMHC and testified that the main entrance to Spruce Hall was a high volume entrance during the time at issue. He confirmed that there were no other records of anyone else ever falling at Spruce Hall.

LEGAL ANALYSIS

A. Duty of Reasonable Care to Maintain Property.

The State owes a duty of reasonable care in maintaining its properly. Stewart v. State, 47 Ill. Ct. Cl. 324 (1995). For Claimant to be successful in negligence claims, she must prove by a preponderance of the evidence that Respondent breached its duty of reasonable care in maintaining its properly, and that the negligence of Respondent was the proximate cause of both Claimant's injury and Claimant's damages. Noonan v. State, 36 Ill. Ct. Cl. 200 (1983). In order to establish a breach of such a duty, Claimant must prove by a preponderance of the evidence that: (1) a dangerous condition existed; (2) the State had actual or constructive notice of the condition; and (3) that the State's negligence was the proximate cause of Claimant's injury. Ewing v. State, 59 Ill. Ct. Cl. 302 (2007).

B. Respondent Had Actual or Constructive Notice of a Dangerous Condition.

To prevail, Claimant has the burden of proving that Respondent had actual or constructive notice of the dangerous condition, and a failure by the state to remedy the condition effectively and efficiently. Carlson v. Board of Regents, 47 Ill. Ct. Cl. 173 (1994). The very fact that Spruce Hall contained a separate entrance for handicapped invitees reflects that Respondent had both actual and constructive knowledge of the change in elevation from the sidewalk to the foundation of Spruce Hall. The requirement for the ramp was born from the dangerously uneven surface leading up to Spruce Hall. But for such a dramatic change in elevation, Respondent would have no reason to construct an entrance wholly separate from the main door.

C. Respondent Failed to Warn Invitees of the Dangerous Condition which was not Open and Obvious

A landowner is subject to liability for physical harm caused to his invitees by a condition on the land where he: (a) knows or by exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to invitees, (b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against danger. Premises Liability Act (740 ILCS 1302); Waters v. City of Chicago, 966 N.E. 2d 560 (App. Ct. 1st Dist. 2012). Furthermore, a landowner such as Respondent owes invitees on the premises such as Claimant, a duty to warn them of any danger of which it knows, or should know of, and of which invitees are not aware. Geraghty v. Burr Oaks Lanes, 5 Ill. 2d 153 (1955); Burns v. Addison Golf Club, Inc., 161 Ill. App. 3d 127 (2nd Dist. 1987). The factors used to determine the existence of a duty include: (1) the likelihood of injury; (2) the reasonable foreseeability of such injury; (3) the magnitude of the burden of guarding against injury and (4) the consequences of placing that burden on the defendant. Bucheleres v. Chicago Park Dist, 171 Ill. 2d. 435, 456 (1996). The duty to warn will be imposed where the landowner has unequal knowledge of the hazard and only if it knows or should know that an injury may occur if no warning is given. Hodges v. St. Clair County, 263 Ill. App. 3d 490 (5th Dist. 1994). The landowner need not anticipate every conceivable distraction that invitees may succumb to, and has a duty to warn against a hazard only where he or she should reasonably anticipate injury to patrons on the premises who are generally exercising reasonable care for their own safety. Id.

The open and obvious doctrine is an exception to the general duty of care owed by a landowner in Illinois. 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, at 447-48. For a condition to be open and obvious, an invitee must reasonably be expected to discover it and protect herself against it. Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 434-35 (1990). The term “obvious” has been held to denote that both the condition and the risk are apparent to and would be recognized by a reasonable person in the position of Claimant, exercising ordinary perception, intelligence, and judgment. See Prostran v. City of Chicago, 349 Ill. App. 3d 81, 85-86 (1st Dist. 2004). Whether a condition is open and obvious depends on the objective knowledge of a reasonable person, not the claimant's subjective knowledge. Id.

The color images of the area where Claimant fell in front of Spruce Hall, which were introduced at the hearing, depict an area that is of the same color and material and also appears to be even from the direction in which Claimant was approaching moments before her fall. Claimant testified that as she walked towards her car, she was unable to appreciate the change in elevation from the building's foundation to the sidewalk below. Claimant did not know there was a “step”; otherwise, as she credibly testified, she would have stepped over the “step.”

The change in elevation from the sidewalk in front of Spruce Hall to the foundation of Spruce Hall is not an open and obvious danger. The evidence contained in the record reflects that the almost three inch drop off was difficult to discover due to its lack of visibility. There was no significant color contrast in the cement walkway leading up to Spruce Hall, making the drop off difficult to see until a person exiting the building was directly above the change of elevation. Claimant testified that she did not notice the defect when entering Spruce Hall. In fact, she did not observe the defect until after her fall. As a result of the defect not being open and obvious, Respondent had a duty to warn those entering Spruce Hall of the abrupt change in elevation. The Respondent breached this duty by failing to post any warning of the dangerous condition of the premises prior to Claimant's accident. Claimant's injuries could have been avoided by Respondent having employed a simple technique to distinguish the elevation change or to warn of the elevation change, i.e. paint or signs. Either of these methods would have been minimal in effort and cost to Respondent, especially when compared to Claimant's injuries.

D. Claimant Proved by a Preponderance of the Evidence that her Injuries were Proximately Caused by Respondent's Actions.

No liability can exist unless Claimant can establish that the State's negligence was a proximate cause of her injuries. Ewing v. State, 59 Ill. Ct. Cl. 302 (1997). The facts of this case reflect that the State's negligence was the proximate cause of Claimant's injuries. Before Claimant's visit to Spruce Hall on October 15, 2005, she had never sustained any injuries to her ribs or left arm. When she exited Spruce Hall after dropping off the birthday gifts, Claimant could not see the dangerous change in elevation from the building's foundation to the sidewalk/walkway that caused her to fall, break her left hand, and fracture two ribs. Claimant's injuries were a direct result of Respondents negligent failure to warn her of the precarious condition that existed on the path from Spruce Hall to its parking lot.

There is no dispute to the reasonableness of Claimant's medical care, her wage loss of $2,415.00 or her medical expenses of $7,653.85. As a result of the foregoing, Claimant has proven by a preponderance of the evidence that Respondent is liable for her injuries. As such, Claimant's six week incapacitation and loss of normal life entitle her to a judgment in the amount of $30,500.00.

IT IS HEREBY ORDERED that this claim is granted in the amount stated above.

STORINO, J.