CHARLES DENNIS v. THE STATE OF ILLINOIS (2015)

ORDER

THIS MATTER is before the Court on a Complaint filed by the Claimant, Charles Dennis, seeking damages for injuries that he alleges occurred as a result of a slip and fall at the University of Illinois Medical Center located at 1740 W. Taylor Street, Chicago, Illinois on or about August 7, 2010. A hearing was held on December 17, 2014. Claimant and Connie Pikes, R.N., appeared and testified. Evidence depositions were submitted for Marcia Hymon, R.N., Joseph P. Tansey, M.D., and Sherwin Ho, M.D. Additional exhibits include a stipulated medical bill summary, an incident report prepared by Ms. Hymon, Dr. Hos C.V., and a case review prepared by Claimant.

Claimant maintains he slipped and fell as a result of a large puddle of water outside his room while a patient admitted to the hospital for a condition unrelated to this case. Claimant argues that the State failed to exercise reasonable care to protect Claimant from a dangerous condition. Claimant asserts that his injuries were proximately caused by the States negligence. The State asserts that it exercised due care with respect to the water on the floor and Claimant breached his duty to act with ordinary care for his own safety by failing to avoid the water on the floor near his hospital room which presented an open and obvious danger and in returning to that area of the danger after staff removed him from the area.

The State further asserts that Claimant did not sustain his burden of proving he sustained injuries and damages causally related to the alleged fall.

Claimant testified that he became aware of the leak “within a day or so” before he fell August 7, 2010. He stepped in the water. He alerted nursing staff. Hospital employees mopped the area, but the leak continued and water again pooled. After staff mopped it, he stepped in the water a second time. Staff then covered the puddle with blankets. A maintenance man came twice but did not fix the leak. The leak was within five feet of his room. The water leak extended all the way across the width of the hallway. There were towels and blankets all the way across the width of the hall. At approximately 7 to 7:30 a.m., as he was going to breakfast and vitals, he noticed staff had placed a blue bed pad on one side of the hall which Claimant perceived to be the “point to cross” for the barrier of towels and blankets. As he attempted to step over the blue pad, his foot fell short of clearing the pad. His foot got wet and his foot slipped from under him. He fell forward onto his face, wrist, forearm, shoulder. He immediately felt pain. Claimant received treatment from Respondent's staff including x-rays, CT Scans, and an MRI Claimant's primary complaint in this matter is his left shoulder. Claimant stated that he was moved to a different room after the fall.

Dr. Tanseys testimony affords a chronology of Claimant's clinical course. For about two years prior to the incident, Claimant was under the care of Board Certified Orthopedic Surgeons and partners, Dr. Joseph Thometz and Dr. Joseph Tansey, for shoulder pain. On his first visit to Dr. Tansey on July 29, 2008, Claimant presented with complaints of neck and left shoulder pain. On physical exam, Claimant had pain with rotation of rotator cuff on left compared to right shoulder. X-rays showed mild degenerative changes in the left shoulder in the acromioclavicular joint. He saw Dr. Tansey again August 12, 2008, complaining of pain to the left shoulder.

The next visit was July 23, 2009, to Dr. Thometz which led to surgery by Dr. Tometz on the right shoulder August 25, 2009.

About two weeks before the incident, on July 22, 2010, Claimant returned to Dr. Tansey for sharp pain in his left shoulder. Claimant had a positive impingement sign in the left shoulder which Dr. Tansey surmised as a subacromial or labral issue. Dr. Tansey obtained an MRI on July 30, 2010, which Dr. Tansey indicated: supraspinatus tendinosis and degenerative changes involving the AC joint with a subacromial osteophyte predisposing to subacromial impingement.

According to Claimant, he could tolerate the pain with pain medication before the fall. After the fall, the pain was sharp and constant. Claimant went to see a Chiropractor within a couple of days after leaving the hospital for treatment. The Chiropractor treated Claimant three times a week for four to six weeks. Claimant also returned to his Orthopedist, Dr. Tansey on September 3, 2010, who discussed therapy and according to Claimant felt the Chiropractic treatment was acceptable therapy.

Dr. Tansey reviewed the prior MRIs of July 30, 2010 and August 12, 2010. He testified that the only difference was that the later film showed minimal tendinosis of the biceps tendon which was an inconsequential finding to him at that time.

Claimant did not seek additional treatment for the shoulder until February 24, 2011, when he returned to Dr. Tansey. Dr. Tansey ordered another MRI which was performed March, 2011. Dr. Tansey performed shoulder surgery January 11, 2012.

Dr. Tansey testified that he felt that the fall caused a slight irritation to the tendon of the biceps, but that did not contribute to his pain. Dr. Tansey opined that the cause of the left shoulder rotator cuff tendonitis and impingement was likely due to chronic wear and tear due to his age and activities. Dr. Tansey felt that the fall exacerbated some of the chronic degenerative changes in the acromioclavicular joint.

Claimant seeks $33,402.20 in medical expenses incurred in treating his shoulder after the fall, and $66,597.80 for pain and suffering.

Nurse Connie Pike testified that she had worked at this hospital as a staff nurse since 1997. She and Nurse Hymon were working 11:00 p.m. to 7 a.m. shift August 7 to August 8. Near the beginning of the shift, she noticed there was a leak in the ceiling that was traveling down a wall and pooling on the hall floor. The pool extended about a couple of inches out from where the wall met the floor. She alerted the Charge Nurse, Marcia Hymon, and gathered blankets to mop it up.

Pike testified that the Claimant was the only patient up at that time. Claimant was staring at the puddle. Pike directed him to return to his room so that the area could be secured, but Claimant kept “staring and staring.” Claimant then told her “Thats a lawsuit, you know. Someone can slip and fall in it. Thats a lawsuit.” She reinforced that he needed to return to his room so staff could deal with the matter.

Pike testified that Nurse Hymon and a Mental Health Counselor, Keith, assisted in drying up the hall. Staff contacted Housekeeping and an Engineer and staff waited for their arrival. During this time, “Mr. Dennis was still in that area observing the leak, and we put in mode that we moved him immediately, because I had a sense that he may -I just didn't feel comfortable with him out there.”

“He kept staring and staring and kept, you know, trying to get involved in something he shouldnt, so I said, you know, we are going to move you. We had a couple of empty rooms. We moved him up closer to the nurses station, as well as we moved the other individuals that was [sic] a couple of doors from him up and away from the area to secure the area and prevent any falls or injuries.” They moved him and all of his belongings past the leak and to a room closer (three doors) from the nursing station. They explained to him that he was not to return to that area, as staff was trying to take care of the matter.

Nurse Pike testified that after the water was dried up and Engineering and Housekeeping had come, Nurse Pike returned to the nursing station. By then Housekeeping had also placed “the little yellow sign there” a warning that the area was wet.

Nurse Hymon also testified that after Nurse Pike notified her, Engineering and Housekeeping were notified and came to the area. The puddle was less than half of the width of the hall. The nursing staff secured the area: by covering the spill, making calls to Housekeeping and Engineering, and by moving Claimant and other patients to different rooms, away from the area. They advised the patients that all of their belongings had been moved to their new rooms, and they should not return to that area. While they moved the patients, a member of the staff stood next to the puddle.

Both nurses testified that they witnessed the incident. Nurse Hymon said that she was at the nursing station when she saw Claimant coming out of his room (after he had been moved and told not to return) walking toward the puddle. She yelled at him to stop walking. He did stop. Then he proceeded to walk again. “And then he went down on the floor.” “He laid down more than he slipped.”

Nurse Pike testified: “I looked up, and thats when I saw Mr. Dennis sit down in the puddle of water….” “[H]e was by the puddle crouching down on the floor and landed on his butt and yelled up, I just slipped and fell.” “[H]e eased his self down on the floor in the puddle.”

Both Nurses testified that they asked him why he had returned to that area after they told him not to do so, and he replied that he returned to his room to see if anything had been left there. The Nurses then obtained a stretcher and put him in the care of the Resident on Duty.

Nurse Hymon filled out a report later on the shift at 5:30 a.m.. In the report she noted “Fall-Ambulating without permission.” “Patient continued to walk in area after instructed to stop.” “Area wet to dry where their [sic] is leakage from roof, resulting in patient falling, patient did not hit his head nor slip or slide.” “[N]o bruising, swelling or discoloration noted.” “Patient moved closer to nurse's station, patient instructed to call nurse for assistance.” “[P]atient again walked to wet area without assistance of staff. Patient stating I forgot something, oh I forgot to ask.”

Dr. Sherwin Ho, a Board Certified Orthopedic Surgeon, testified as an expert for the State. He is the Director of the University of Chicago Sports Fellowship Program, an Associate Professor, Department of Orthopedic Surgery and Rehabilitation Medicine at University of Chicago, and Founding Member, and on the Editorial Board of the Orthopedic Journal of Sports Medicine. He did not examine the patient, but did review Claimants medical records, including available films and reports.

Dr. Ho reviewed Dr. Tansey's records which included physical examinations of the left shoulder about two weeks before and three weeks after the incident in question. Dr. Ho observed that Dr. Tanseys findings in these examinations “were essentially the same.” Dr. Ho testified that the MRIs taken before and after the incident (July 22, 2010, August 12, 2010, and March of 2011) are essentially the same: Claimant has had chronic, ongoing, degenerative disease in the left shoulder, arthritis of the acromioclavicular joint with a bone spur off the anterior edge of the acromion. There was some minimal fraying of the labrum which developed over time from the degeneration and the bone spur sitting above it. Dr. Ho reviewed Dr. Tanseys Operative Report of January 11, 2012, which refers to a Subacromical Decompression. During the surgery, Dr. Tansey shaved away part of the acromion and the bone spur. The spur was causing the impingement of the rotator cuff and the pain.

Dr. Ho asserted that based upon the records, physical examination findings, and MRI studies before and after the fall, Claimant's left shoulder problems were present at least two years before the fall. There was no exacerbation of his shoulder disease due to the fall. There was no aggravation to the labrum. The fall had nothing to do with his surgery. The clinical course of his shoulder was not altered by the fall.

For a claimant to recover in this matter, the claimant must prove by a preponderance of the evidence that the State breached its duty of reasonable care and that the States negligence proximately caused the claimant's injuries. If these two elements are established, the Court will consider whether the claimant was comparatively negligent. Samuelson v. State (1986), 38 Ill.Ct.Cl.257, 261.

In general, one lawfully on the premises has a responsibility for his own safety and must be held to be equally aware of all the obvious and normal hazards incident to the premises as the possessor of the land. Since the liability of a possessor of land is predicated upon his failure to expect that those lawfully upon the premises will not discover or realize the danger, Genaust v. Illinois Power Co. (1976), 62 Ill.2d 456, 343 NE2d 465, a landowner generally has no duty to warn one lawfully on the premises of a danger which is known to that person or is open and obvious. Dandurand v. Chebanse Recreation Center (1972, 3d Dist) 8 Ill.App.3d 508, 290 NE2d 276.

In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers he will encounter if he comes. True v. Greenwood Manor West, 737 NE2d 673, 677 (4th Dist. 2000) quoting Restatement (Second) of Torts §343A, Comment e at 219. In True for example, a jury had returned a verdict in favor of a visitor to a nursing home - who had tripped over a fan. The trial court denied the nursing home's Motion for Judgment Notwithstanding Verdict. The Appellate Court reversed holding that the nursing home was not liable for injuries to Plaintiff who tripped over a fan while visiting her sister. The Court reasoned that the fan was an open and obvious danger given the evidence: the fan was plainly visible: Plaintiff saw the fan when she entered her sisters room, Plaintiff initially walked past it without any problem, and nothing obstructed her view at the time she tripped over it.

This Court finds that Claimant in this case has failed to sustain his burden of proof. Claimant failed to produce credible evidence that he slipped and fell due to negligence by the State.

The credible evidence demonstrates that the Claimant was aware of the open and obvious condition and intentionally encountered the condition despite the staffs reasonable preventative efforts. He admitted that he was aware of the condition. He had stepped in the wet area two times without any problems before a third incident where he allegedly fell. There was credible evidence that the area only covered a portion of the width of the hallway, but half of the hallway width had no pooling hazard. The credible evidence demonstrates the Claimant participated in the staffs action of removing him and other patients from that area and staff direction not to return to that area. Staff placed a yellow warning sign. Yet he returned to that area after being moved. When Nurse Hymon observed him in that area, she shouted to him to stop, so she could provide assistance. Claimant heard her and stopped. But then thereafter proceeded to lower himself into the puddle area.

Further, considering Claimant's statement before he was evacuated that the leak condition presented the potential for a lawsuit, it is apparent that Claimant knew of and appreciated the nature and extent of the hazard.

The Court further rejects Claimant's argument that the nurses credibility is undermined by their recollection as to the timing of the event when considering times listed on the medical records. Claimant said this fall occurred at 7 to 7:30 a.m. on his way to breakfast and vitals. He testified vitals and breakfast occur 7 to 7:30 a.m. Nurse Hymons incident report notes 5:30 a.m., but she testified that may have been when she sat down to input the information. Exhibit A of Claimants Closing Statement and Argument lists the time Dr. Gomall ordered the X-ray: 5:35 a.m.. Claimant therefore fell before 5:35 a.m.. The Doctor's Order is consistent with the Nurse's recollection, and contrary to the Claimants explanation/justification as to why he needed to walk down that hall at that time.

Claimant has failed to prove that he suffered injuries as a result of negligence by the State. Therefore, the claim is denied.

MCGLYNN, J.