LEONARDO MARTINEZ v. STATE OF ILLINOIS (2013)

ORDER

THIS MATTER is before the Court on a Complaint filed by the Claimant, Leonardo Martinez, seeking damages from Respondent, the State of Illinois, as compensation for injuries he sustained on the sidewalk in front of the Administrative Office Building of the University of Illinois at Chicago (UIC).

On the evening of January 28, 2011, Claimant was walking westbound along the sidewalk on the south side of the 1700 block of Polk Street. The sidewalk is elevated above street level on this block, and is connected to the street by a sloping strip of brick pavers. A handrail runs between the sidewalk and the bricks on the eastern half of the block, ending at a short set of stairs leading down to the street. Trying to cross the street, Claimant stepped off the sidewalk onto the bricks. At the place where Claimant stepped off the sidewalk, there was a drop of 3 inches between the sidewalk and the bricks, and no handrail. Unaware of the drop, Claimant slipped and fell backwards. The accident occurred directly in front of the UIC Administrative Office Building located at 1 737 W. Polk Street, Chicago, Illinois.

Claimant's back, head and right elbow hit the pavement. He was taken to the hospital where x-rays revealed a fractured right elbow and his arm was placed in a splint. Shortly thereafter, Claimant underwent surgery to treat his injuries. Even after the surgery, his right arm has a very limited range of motion. Claimant was told that he needs a second surgery, but the surgery was not scheduled after his health insurance was cancelled. Claimant struggles to complete daily tasks such as showering, shaving, getting dressed and eating. Claimant seeks the maximum damages authorized by law. Respondent does not dispute the damages claimed by Claimant.

Claimant filed his Complaint on August 8, 2011. Trial was held on June 5, 2013, and both parties submitted post-trial briefs on August 23, 2013.²

In its post-trial brief, Respondent argues for the first time that the claim should be dismissed because Claimant failed to exhaust remedies as required by the Illinois Court of Claims Act and implementing rules. Section 25 of the Court of Claims Act requires claimants, before filing in this Court, to “exhaust all other remedies and sources of recovery, whether administrative or judicial ….” 705 ILCS 505/25. The Illinois Administrative Code provides that a failure to exhaust remedies “shall be grounds for dismissal.” 74 Ill. Adm. Code 790.90. Respondent maintains that Claimant was required to sue the City of Chicago, which is the governmental entity responsible for maintaining city sidewalks, before proceeding in this Court Respondent does not explain why this matter was not raised prior to the trial either in a Motion to Dismiss or as an affirmative defense.

This Court has recognized that the issue of exhaustion can be waived in some instances if not raised before trial. In Gipson v. State, 51 Ill.Ct.Cl. 54 (1999), the Court explained that exhaustion of administrative remedies is a jurisdictional prerequisite to adjudication in the Court of Claims, and the issue cannot be waived. However, the requirement that a claimant exhaust all other “sources of recovery”D' is a “creature of statute”D' and can be waived. Id. at 62. Accordingly, this Court has, on occasion, declined to dismiss claims in which the claimant failed to pursue another potentially liable party when the issue was not raised prior to trial. See Escobar v State, 55 Ill.Ct.Cl. 433 (2003): Wilson v State. 46 Ill. Ct. Cl. 20 (1994). In this case, Respondent failed to raise Claimant's failure to pursue recovery from the City in a timely manner, and the issue is deemed waived.

Proceeding to the merits of the claim, this Court finds that Respondent is not responsible for maintaining and repairing the sidewalk in front of the UIC Administrative Office Building and, thus, cannot be held liable for the injuries sustained by Claimant. Both parties agree that the sidewalk where the accident occurred is a public sidewalk owned by the City of Chicago. Pablo Acevedo, the Associate Director for Facilities Management for UIC testified for the Claimant. As part of his duties, Mr. Acevedo oversees the Grounds Department, which is responsible for maintaining UIC grounds including snow and debris removal, landscaping, lawn care, and the installation and maintenance of railings. According to Mr. Acevedo, UIC generally installs new handrails only as part of a larger construction project or at the written request of a member of the University community. UIC replaces brick pavers if it removes them in the course of constructing or repairing University property. As it does around all University buildings, UIC grounds staff shovels the sidewalk in front of the Administrative Office Building and cleans debris from the brick pavers. Mr. Acevedo knew of no complaints regarding the stretch of sidewalk where Claimant's accident occurred. He assumed that the City installed the bricks which had been present at least since the early 1980's. Mr. Acevedo did not know who installed the railing or when it was installed, and did not believe that a railing had been installed west of the stairs either before or after the accident.

Generally, Chicago bears the duty to maintain its sidewalks, and the State is not liable for injuries that occur on sidewalks owned and maintained by a municipality. Tilloison v. State, 35 Ill.Ct.Cl. 353 (1981); Carlon v. State, 18 Ill.Ct.Cl. 167 (1949). Claimant argues that Respondent assumed liability for the condition of the sidewalk along Polk Street because it removed snow and debris, and replaced bricks that it removed during construction projects. According to Claimant, Respondent breached its duty of care by failing to correct the drop from the sidewalk to the brick pavers, and failing to install a rail extending west of the stairway.

Owners and occupiers of premises are not liable for personal injuries that occur on public sidewalks adjoining their premises unless they have appropriated the sidewalk for their own use or caused the dangerous condition. Evans v. Koshgahan, 234 Ill. App. 3d 922, 925 (1992). The State has the same liability for sidewalks bordering its property as a private owner or occupier of land. See Lichter v. State, 44 Ill.Ct.Cl. 17 (1991). There was no evidence that UIC appropriated the sidewalk in front of the Administrative Office Building for its own use or created the dangerous condition.

Owners and occupiers of abutting premises do not incur additional liability when they undertake routine maintenance of the sidewalks such as sweeping debris. Schuman v. Pekin House Restaurant and Lounge, 102 Ill. App. 3d 532, 534 (1981), mowing the grass, Evans v Koshgarian, 234 Ill. App. 3d at 926, or shoveling snow, Burke v. Grille 227 Ill. App. 3d 9, 15 (1992). See also Dodd v. Cavett Rexall Drugs, Inc. 178 Ill. App. 3d 424, 433 (1988). By maintaining the sidewalk and the brick pavers in front of 1737 W. Polk Street, Respondent did not incur liability for Claimant's injuries. Cf. Freeman v. State, 35 Ill.Ct.Cl. 242 (1981) (State not liable for injuries caused by tree root that remained imbedded in municipal sidewalk after State removed the tree which had fallen onto the roadway). Even assuming that installing a handrail along a portion of sidewalk may create a duty to continue the rail to the end of the sidewalk, there was no evidence in this case that UIC installed the existing railing.

Claimant has failed to prove that the State had a duty to maintain the sidewalk or handrail where his injury occurred. The claim is denied.

FOOTNOTES

2.  With his post-trial brief, Claimant submitted a document entitled A Report On. Fall Down Accident on a Sidewalk prepared by Michael J. Jedrzejewski, a licensed architect with Architectural Investigation, P.C. There was no joint stipulation regarding the report, and Claimant did not seek lo call Mr. Jedrzejewski as a witness or to introduce the report at trial. Because the report was not properly admitted into evidence, the Court has not considered it in this decision.

HARTIGAN, J.