Joan Gillespie v. State of Illinois

Joan Gillespie, claimant, filed her complaint in this Court on March 1, 1961 in which she seeks an award of $25,000.00for the fracture of her right ankle, which required two surgical operations. The injury resulted from a fall, which she experienced when she stepped over a curb into an asphalt parkway in a crosswalk in Evergreen Park, Illinois, which was maintained and controlled by the State of Illinois.

From the evidence it appears that claimant is a white female, thirty-two years of age, a housewife, and mother of three children. She testified that on February 23, 1959 she was crossing 95th Street in a southerly direction in the west crosswalk of South Kedzie Avenue, which intersection was located in Evergreen Park, Illinois. When she arrived at the southwest corner she stepped over a small slanting curb into an asphalt parkway in said crosswalk. The lighting at the intersection was poor, and, as she stepped into the area, her right foot was caught in the hole or cracked asphalt area, which caused her to be thrown to the pavement. As a result, she sustained a fracture dislocation of the right ankle. She was taken by ambulance to the Little Company of Mary Hospital. Subsequently, under a general anesthetic, the fracture was reduced by open surgery, and a cast was placed on her right leg. She remained in the hospital for approximately two weeks, and then was confined to her home with her right leg in a cast. Claimant further testified that she re-entered the hospital on May 31, 1959 and again on June 2, 1959, and, under a general anesthetic, had additional surgery on her right foot for the removal of the screw, which had been inserted in her ankle in the reduction of the fracture. She stated that she still has swelling, pain, and [*311] cramps in her foot and toes, and that she has an occasional limp. She testified that her medical expenses and specials totalled $1,175.43.

Medical testimony elicited the fact that the cast remained on her leg for approximately three months, and that, when removed, it was found necessary to remove the screw in her ankle. The condition of pain, discomfort, and swelIing of the ankle, as a result of the injury, was believed by the doctor to be permanent.

A disinterested witness who assisted claimant into the drug store, which was located at the intersection where the accident occurred, testified as to the defective condition of the parkway in the crosswalk at the southwest corner of 95th Street and Kedzie Avenue. He stated that this condition had existed for at least four months prior to the date of the accident, and that the lighting at the intersection was poor.

Claimant was also examined by a medical doctor on behalf of respondent. His report confirms claimant’s injury, and likewise finds some loss of use of the right ankle.

Claimant had previously filed a common law action against the Village of Evergreen Park in the Circuit Court of Cook County, Illinois. The Village of Evergreen Park defended itself in the said lawsuit on the grounds that it did not have jurisdiction over the area where claimant allegedly fell. The lawsuit was dismissed by stipulation, and claimant received $400.00 in settlement thereof on a covenant not to sue the Village of Evergreen Park.

Numerous pre-trial motions were filed by the State of Illinois in this cause, which dealt primarily with the jurisdiction of the State over the area where claimant fell. The motions were supported by various affidavits, plats, and charts, all of which have been read, and examined closely by this Court. From such examination, and from the testi[*312]mony at the hearing, we are of the opinion that the area where claimant fell was a part of the highway system of the State of Illinois, and was under the jurisdiction of respondent and its agents.

From the evidence, photographs, plats, and charts, we find that a defective condition was present in the parkway and crosswalk, and that there was negligence on the part of the State of Illinois in the maintenance of the parkway in the crosswalk in question, which negligence was directly responsible for the injuries sustained by claimant. Knowledge of the condition was had by the State by reason of the lapse of more than four months, which was certainly sufficient time within which to make repairs or to barricade the same from use by pedestrian traffic. Visco vs. State of Illinois, 23 C.C.R. 149.

Claimant had made a purchase in the commercial area, and was using the west crosswalk to return to her parked automobile. She was crossing with the green light. She had not traversed the intersection on a prior occasion, and found the intersection dimly lighted. Claimant was watchful of the stopped traffic, and was looking ahead as she walked across 95th Street. She was wearing flat, heavy-soled shoes, and the ground was dry. Upon arriving at the south curbing, which was slanted and several inches higher than the adjoining pavement, she placed her right foot over the curbing, and immediately caught it on the cracked section of the parkway, which was just on the other side of the curbing. She fell in a heap with her right foot directly beneath her. Certainly nothing in her actions immediately before or at the time of the occurrence would give rise to any question as to due care for her own safety. We find no evidence of any contributory negligence on the part of claimant.

Claimant has sustained a serious fracture of her ankle, and has undergone multiple operations thereon. She' has a [*313] disfiguring scar on her ankle, and the evidence indicates that she is unable to wear high heels for normal walking or when driving an automobile. Her ankle continues to swell several times weekly, which causes cramps. These conditions are permanent, as is a loss of motion in the ankle, a permanent scar, and a grating sound on circumduction. We are of the opinion that claimant is entitled to just and fair compensa-' tion for said injury.

The question now remaining for the Court to decide is the amount of claimant's damages. The medical expenses, as previously indicated, totaled $1,175.43. The Court believes claimant is further entitled to an additional award of $5,000.00 for pain, suffering and impairment to her ankle, less the sum of $400.00, which she received from the Village of Evergreen Park.

An award is, therefore, made to claimant, Joan Gillespie, in the sum of $5,775.43.

(No. 5 2 S Case partially dismissed.) JACK L. MUNCH, Claimant, os. STATE OF ILLINOIS, Respondent.

Order filed May 10, 1966.

H. EDWARDS, JR., Attorney for Claimant.

WILLIAM

WILLIAM G. CLARK, Attorney General; GERALD S. GROBMAN, Assistant Attorney General, for Respondent.

P RACTICE AND PRocmuux-mtice of intent to sue for personal injuries. The notice requirements of Sec. 22-1 are a condition precedent to the filing of a complaint against the State, and where complainant fails to show complete compliance, the claim will be summarily dismissed.

SAME,WOP&Y damage. There is no statutory notice requirement with regard to property damage, although suit must be filed with the clerk of the Court within two years after the action first accrues.

SmE-constructwn of statute. Where the last day of the two year limitation is Sunday or a holiday, it shall be excluded and suit for property damage may be filed on the following day.

[*314] PERLIN,

C. J.

ORDER

On November 8, 1965, claimant filed a complaint with the Court of Claims seeking $10,000.00 from respondent as a result of personal injuries and property damage incurred in an accident, which allegedly involved a car owned by respondent. The accident occurred on November 7, 1963.

Respondent has moved to dismiss the action because of the failure of claimant to file notice within six months from the date of his alleged injury as required by Sec. 22-1 of the Court of Claims Law. The pertinent sections of the Court of Claims Law (Chap. 37, Sec. 439, 1963 111. Rev. Stats.) provide as follows:

“Seo. 22-1. Within six months from the date that such an injury was received or such a cause of action accrued, any person who is about to commence any action in the Court of Claims against the State of Illinois for damages on account of any injury to his person shall file in the office of the Attorney General and also in the office of the clerk of the Court of Claims, either by himself, his agent, or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, and the name and address of the attending physician, if any.

“Sec. 22-2. If the notice provided for by Sec. 22-1 is not filed as provided in that section, any such action commenced against the State of Illinois shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further action in the Court of Claims for such personal injury.” It should also be noted that Rule 5B of the Court of Claims requires the following procedure :

“Where a claim alleges damages as a result of personal injuries, claimant must attach to his complaint copies of the notices served by him as required by Chap. 37, Sec. 439.22-1, 1963 111. Rev. Stats., showing how and when such notice was served.”

There appears to be no question but that claimant has failed to comply with any of the above statutory notice requirements. However claimant asks denial of respondent’s [*315] motion to dismiss on the grounds that claimant had notified at least two agencies of the State of Illinois of the accident within thirty days after it occurred. The complaint states that claimant had no intention of suing the State of Illinois until the insurance company, which insured the driver of respondent’s car, became insolvent.

This Court has long held that the notice requirements of Sec. 22-1 are a condition precedent to the filing of a complaint against the State of Illinois, and that, where claimant does not show complete compliance, this Court has no jurisdiction to hear the claim.

In Thomas vs. State of Illinois, 24 C.C.R. 137, 139, the Court held that the burden is on claimant to give the notice required by the statute, and that notice given to a State employee will not constitute compliance. In that case, a report of the accident, which was filed with the Department of Conservation, was not regarded as a notice to the Attorney General and the clerk of the Court of Claims.

In Frey vs. State of Illinois, 24 C.C.R. 338, the case was dismissed because statutory notice was not filed in either the office of the Attorney General or the clerk of the Court of Claims until 7% months after the date of the alleged accident.

The Court in Telford vs. The Board of Trustees of Southern Illinois University, 24 C.C.R. 416, 418, held:

“The patent purpose of notice requirements is to afford respondents an opportunity to promptly and intelligently investigate a claim and prepare a defense thereto, and to thereby protect governmental bodies from unfounded and unjust claims.”

Where a claimant does not allege that he has filed a notice, as provided by the statute, the Court has ruled that such a complaint does not state a cause of action, which would entitle the claimant to recover from respondent. ( M c - Donald vs. The Teachers College Board, 24 C.C.R. 438.)

[*316] All claims on account of personal injury must be summarily dismissed where, as in the instant case, the statutory notice requirements have not met with exact compliance.

It appears from the complaint, which was submitted in the instant case, that there is an element of property damage as well as that of personal injury. There is no statutory notice requirement with regard to property damage, although Sec. 22 of the Court of Claims Law requires the filing of a suit with the clerk of the Court within two years after the action first accrues. Respondent contends that two years had already passed before the complaint in this case was filed. We cannot agree with respondent.

Sec. 22 of the Court of Claims Law (Chap. 37, Sec. 439.22, 1963 Ill. Rev. Stats.) provides that “every claim . . . cognizable by the Court and not otherwise sooner barred by law shall be forever barred from prosecution therein unless it is filed with the clerk of the Court within two years after it first accrues . , .” The interpretation of this section of the statute may be found in Chap. 131, “Construction of Statutes,” Sec. 1.11, 1965 Ill. Rev. Stats., which provides as follows:

“The time within which any Act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Sunday or is a holiday . . . and then it shall also be excluded.”

In the instant case, therefore, the fact that November 7, 1965 fell on a Sunday would extend the filing deadline to Monday, November 8, 1965. Since claimant’s action was timely, he may prosecute his claim as to property damage in this Court.

Accordingly, claimant’s action for damages incurred as a result of personal injury is dismissed, but the action for alleged property damage will be allowed to remain in this tribunal.