THERESA MILLER v. BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS (2013)

OPINION

Factual Background

Claimant Theresa Miller, as Special Administrator of the Estate of her father Leroy Miller, deceased, brought this claim in tort for $20,427.98 against Respondent, Board of Trustees of the University of Illinois, for head, neck, scalp, and face injuries he sustained on October 25, 2006 at a building owned and operated by Respondent in connection with The University of Illinois Chicago when he fell from an escalator that had stopped after his walker got stuck in it.

On the aforementioned date, Mr. Miller was at the building in question to make transactions at his credit union, which was located on the second floor. Claimant testified at the hearing that as of October 25, 2006, Mr. Miller had been going to the credit union at that location for about two years. Joseph Phillips testified at the hearing and described witnessing Mr. Miller's injury. Currently a facility manager at the University of Illinois Hospitals and Health Sciences, Phillips was supervisor of university unions at the time of Mr. Miller's injury.

Phillips recalled that as he was about to ascend on the escalator going up, he saw Mr. Miller with his walker on the escalator to his left about half-way down. Shortly thereafter, Phillips saw Mr. Miller shift his walker to the right. This shift caused the walker to come into contact with both sides of the escalator and become stuck. As soon as this happened, the escalator came to an immediate stop as it was programmed to do if something was stuck.

No one was in front of Mr. Miller, who was a few steps away from the bottom of the escalator. There was a loud screeching noise, and the few people behind Mr. Miller jolted forward as the escalator came to a sudden stop. Mr. Miller also jolted forward, but then fell back. Phillips ran to assist Mr. Miller and remove the walker from the escalator. He recalled that Mr. Miller was bleeding from his head and that it appeared he had hurt his leg.

Phillips stated that the other people on the escalator were holding on to the hand rails but Mr. Miller was gripping his walker. Phillips noted that there were warning decals on the top and bottom of the escalator that stated “avoid sides” and “hold hand rails.”

Claimant testified that Mr. Miller had started using the walker to get around in about 2005. She stated that he used the walker constantly, in and out of the house. The one time prior to the accident that she went to that credit union with him, he used the walker and went up the escalator with it, and based on what he would tell her this was his custom once he had started using the walker. She also stated that the elevators on the first floor were not easily visible.

Claimant argues that Respondent was negligent because it failed to post proper warnings on the escalator regarding the usage of walkers and because Respondent did not make the elevators easily accessible.

Analysis

To prevail in a cause of action sounding in negligence, a claimant must prove facts establishing the following: the existence of a duty that respondent owed him; the respondent's breach of that duty; and that the breach proximately caused the claimant's damages. Estate of Johnson by Johnson v. Condell Memorial Hosp, 119 Ill.2d 496 (1988). Generally, one owes a duty of ordinary care to guard against injuries to others that may result as a reasonably probable and foreseeable consequence of negligent conduct. Karas v. Strevell, 369 Ill.App.3d 884, 889 (2nd Dist. 2006).

At the hearing, Claimant averred that an escalator should be treated as a common earner. In Illinois, a common earner has a heightened duty to exercise the “utmost diligence and care” and is liable for even slight negligence. DiChristofano v. Neiman Marcus Group, Inc. 2007 WL 2028162, 1 (N.D.ILL. 2007) However, courts in Illinois have long held that escalators are not common earners. See Tolman v. Wieboldt Stores, Inc., 38 ILL.2d 519, 524, 233 N.E.2d 33, 36 (1967). DiChristofano v. Neiman Marcus Group, Inc. 2007 WL 2028162,1 (N.D.Ill. 2007). Further, Claimant does not offer any case law refuting this proposition.

Thus, Claimant's Decedent was simply a business invitee, and Respondent owed him the general duty of care owed to by landowners to keep the premises safe for invitees. Shannessy v. State, 50 Ill.Ct.Cl. 198 (1997). This duty does not include a duty to warn invitees of obvious dangers or risks. Ward v. K-Mart Corporation 136 ILL.2d 132, 143(1990) (Noting, “[c]ertainly a condition may be so blatantly obvious and in such position on the defendant's premises that defendant could not reasonably be expected to anticipate that people will fail to protect themselves from any danger posed by the condition”).

Claimant offers two instances of negligent conduct by Respondent: 1. The warnings on the escalator were inappropriate because they did not expressly forbid or otherwise expressly address use of the escalator with a walker; 2. The elevator in the building was hard to get to and not easy to find.

With regard to warnings on the escalator, Claimant offers no evidence through expert testimony or otherwise that the design of the escalator was such that it was dangerous for walkers to be used on the escalator, In fact, the evidence indicates that Mr. Miller had used the escalator with his walker without incident on prior occasions. And there are no incident reports offered or mentioned that indicate other people on walkers had been injured on that escalator or similar ones on Respondent's property.

We find that there was nothing in particular about walkers being used on the escalator that warranted the posting of any warnings or prohibitions. The escalator was open and obvious, and its width and moving nature were obvious conditions of which an adult passenger should have been aware. Further, one of the decals posted at the bottom of the escalator clearly stated, “avoid sides.” Under these circumstances, Mr. Miller was on notice to use caution in preventing the panels of his walker from coming into contact with the sides of the escalator. Had he not moved the walker to the right in such a manner that it came into contact with the sides of the escalator, the escalator would not have stopped and caused him to lose balance and fall backward.

This then leads us to Claimant's other argument regarding the elevators being hard to find. Implicit in this argument is that Mr. Miller should have been prohibited from getting on the escalator with his walker. However, as just discussed, Claimant has not established by a preponderance of the evidence that it was unsafe for Claimant to have used his walker on that escalator. Just because Mr. Miller was injured while using the walker on the escalator, it does not mean that such an activity was unsafe.

Further, it is undisputed that Mr. Miller had been going to the Student Union on a regular basis for two years before he fell. In those two years, he certainly must have been aware of the elevator at some point. This is even more likely given that Joe Phillips testified that in order to get to the escalator from the entrance which he observed Mr. Miller use off Halsted St., one must walk past the elevator on the first floor. Thus, it is more likely than not that Mr. Miller knew that an elevator existed but nonetheless elected to take the escalator instead. Thus, even if signs were posted illustrating where the elevator was, it is speculative at best whether they would have deterred Mr. Miller from using the escalator. It is well established that liability in Illinois cannot be based upon mere speculation, conjecture, or argument without any basis in fact. Sameer v. Butt, 343 Ill.App.3d 78, 796 N.E.2d 1063, 277 Ill.Dec. 697 (5th Dist. 2003).

For all the above mentioned reasons, Claimant's claim is denied.

STORINO, J.