JUAN ESQUIVEL 018115 v. STATE OF ILLINOIS (2015)

OPINION

This claim is before the Court upon a recommendation from Commissioner Herbert B, Rosenberg following an evidentiary hearing.

Claimant, Juan Esquivel, is seeking damages from the State in the amount of $100,000.00 for personal injuries, medical expenses, pain and suffering, and disability. Claimant alleges that on September 11, 2009, he suffered multiple fractures to his right foot and ankle when his foot went into a hole created from an ajar sewer cap located along the east shoulder of northbound Harlem Avenue near the bridge that passes over 95th Street. This section of Harlem Avenue is part of Illinois Route 43 at this location. Attorney James E. Coogan of Dwyer, McCarthy & Associates, Ltd. filed a complaint on behalf of the Claimant on September 10, 2010. An evidentiary hearing on this matter took place in the Court of Claims. Ms. Lisa A. Kotrba, a certified-shorthand reporter, was present and created a record of the proceedings.

FACTS

An evidentiary hearing was conducted before Commissioner Herbert B. Rosenberg. Claimant provided testimony regarding this incident. Claimant alleges that on September 11, 2009 at approximately 9:00 p.m., he was traveling northbound along Harlem Avenue (Illinois Route 43) in Bridgeview, Illinois with Ms. Jennifer Draper. Claimant was walking his bicycle along the east shoulder of Harlem Avenue. There was no sidewalk at this location, but a path had been worn into the dirt of the highway shoulder. When Claimant was walking his bicycle along the dirt path, he stepped with his right foot into a hole created by a sewer cap that was ajar. Photographs taken subsequent to this incident by Ms. Draper and Ms. Draper's mother were admitted as Exhibits. As a result of stepping into the hole, Claimant's foot and ankle sustained several fractures which subsequently required surgery for treatment. Claimant and Respondent stipulated to Exhibits with respect to Claimant's medical bills and records. Claimant has requested $100,000 in total damages, of which $38,283.26 is for medical expenses, $51,716.74 is for pain and suffering, and $10,000 is for disability. Counsel for Claimant also called Ms. Draper who provided testimony regarding the incident.

Counsel for Respondent culled Ronald Hayes, the Lead Lead Worker at the Illinois Department of Transportation Alsip Transportation Yard, who provided testimony regarding sewer gates and the State's role with regard to the maintenance of sewer grates along State highways. Counsel for Respondent also called Christine Ridge, an Illinois Department of Transportation Region One claims manager as a witness to provide testimony about the Respondent's departmental report, which was submitted into evidence as an Exhibit. The departmental report indicated that no records regarding hazards along Harlem Avenue near 95th Street were noted since June 1, 2009 prior to the Claimant's incident; on September 11, 2009.

LEGAL ANALYSIS

The State has a duty to the public to maintain highways in a reasonable safe condition by using reasonable diligence in the course of maintenance. State Farm Mutual Insurance Co. v State, 53 Ill. Cl. Cl. 232 (2001). However, the State is not an insurer against all highway conditions. State Farm Mutual Insurance Co. v. Stale, 53 Ill. Cl. Cl. 226 (2001). When a dangerous condition exists on a State highway, Claimant bears the burden of establishing by a preponderance of the evidence that the State had actual notice or constructive notice of the dangerous condition. Scroggins v. State, 43 Ill. Ct.Cl. 225(1991).

At the evidentiary hearing, Claimant testified under oath that on September 11, 2009, he was traveling northbound on a dirt path on the east side of Harlem Avenue (Illinois Route 43) and stepped into a hole with his right foot. He fell in up to his hip. There is no evidence to dispute that Claimant's injuries were caused by anything other than falling into a hole along Harlem Avenue.

The State argued that the Claimant has not met the burden of proof for showing that the State had actual or constructive notice of any hazard so that Respondent's negligent maintenance was the proximate cause of the injuries sustained by Claimant.

In review of the facts in the record, Claimant failed to provide any credible evidence that Respondent had actual knowledge of the alleged hazard prior to the Claimant's incident on September 11, 2009. Claimant did not present any evidence or provide any testimony that the hazard was reported to Respondent at any time prior to 9:00 p.m. on September 11, 2009. Also, the testimony of Christine Ridge and Respondent's departmental report submitted as evidence do not indicate that any hazards were reported along the east shoulder of Northbound lanes of Harlem Avenue from June 1, 2009 to September 11, 2009 prior to Claimants incident. Based on the lack of evidence in the record there is nothing to indicate that Respondent had actual knowledge of any hazard in the area until 9:59 p.m. on September 11, 2009 as stated in Respondent's departmental report.

Claimant also failed to provide sufficient evidence to establish that Respondent had constructive knowledge of a hazard prior to Claimant's incident on September 11, 2009. To find that Respondent had constructive notice, Claimant must show that the defect was substantial enough and had existed for such a length of time that reasonable person would conclude that immediate repairs should be made or that warning signs be posted. Bowley v. State, 52 Ill. Ct. Cl. 18 (1999).

While Claimant did produce photographs of the hole and the sewer cap that Ms. Draper took before the hazard was remedied on September 14, 2009, Claimant did not provide any testimony or evidence to explain how the scenes depicted in the photographic Exhibits taken by Ms. Draper would lead a reasonable person to conclude that the hole existed for a substantial length of time. Unlike a pothole which is created over time from a freeze/thaw cycle, an ajar sewer cap could be created instantly from being struck by a mower or other large vehicle. Where there is an absence of proof as to how long a dangerous condition existed, there is no evidence to charge the State with notice of its existence. Baker v. State, 42 Ill. Ct. Cl. 110 (1989). Without any affirmative evidence presented, Claimant has failed to meet this burden. Claimant's failure to establish Respondents constructive notice of an alleged dangerous condition precludes recovery.

Besides negligent maintenance, Claimant also alleges ordinary negligence on the part of Respondent in creating a hazardous condition. Counsel for Claimant implies that due to the weight of the sewer frame at 70-90 pounds, the testimony of Mr. Hayes that a mower from mowing grass might shift a sewer frame, and the testimony of Mr. Hayes that vegetation in a photographic Exhibit of the sewer grate in question appears to have been recently mowed, that the only reasonable theory for how the sewer cap became ajar was that a Department of Transportation employee negligently operated mowing equipment. Claimant's argument is not supported by case law. The burden of proof is on Claimant to show how the dangerous condition occurred.

It is worth noting that Claimant produced an Illinois Department of Transportation maintenance report that showed that there was mowing in the area of the incident on September 4, 2009. However, the report stated that the mowing occurred on the west side of Harlem Avenue and the location of hazard in question is along the east side of Harlem Avenue. Without any additional evidence in the record, there is nothing to show that the hazard in question was created through any negligence of an agent of the Respondent. Claimant has failed to meet the burden of proof.

Claimant's failure to establish actual or constructive notice of the dangerous condition precludes recovery under a negligent maintenance theory of relief. Claimant's failure to show that the dangerous condition in question was created by Respondent precludes recovery under a negligence theory of relief.

IT IS HEREBY ORDERED that Claimants claim is denied.

SPRAGUE, J.