Robert Patis v. State of Illinois

This matter comes before the Court on the joint stipulation of Claimant and Respondent for the entry of an award in this case. The parties stipulated additionally to the facts alleged in Claimant’s complaint, to wit: that Claimant was a judgment creditor of one Lee Roy Calvin, an employee of the Illinois Department of Transportation as of December 17,1974, the date of service on Respondent of wage deduction summons in case No. 72-M1-110082 in the circuit court of Cook County, Illinois (which summons was returned February 4, 1976, and continued to July 8, 1976), that Respondent failed to withhold any sums from Calvin’s wages while Calvin remained in its employ, and that Calvin left Respondent’s employ on August 7, 1976.

The Court being otherwise fully advised, it is hereby ordered that an award be and is hereby entered in favor of Claimant in the amount of $125.00 (one hundred twenty-five dollars) in full satisfaction of his claim.

[*80] ( No . 76-CC-2279-Claimant awarded $1O,OOO.00.)

KATHLEEN MARTENS, Claimant, v . THE BOARD OF TRUSTEES OF

SOUTHERN ILLINOIS UNIVERSITY, Respondent.

Opinion filed October 29, 1981.

CHARLES E. HAMILTON, for Claimant.

D ONOVAN, HATCH & CONSTANCE (HAROLD

A. DONO

VAN, of counsel), for Respondent.

NEcLJcENcE-hndowner’s duty to invitee. The possessor of land has a duty to use reasonable care to protect invitee against a known, dangerous condition if it constitutes an unreasonable risk of harm to the invitee and if possessor should expect invitee will not discover or realize danger or will fail to protect himself against danger.

SAME-hdOWneT’S duty to protect invitee from acts of third persons. Landowner has duty to guard an invitee against actions of third persons, whether negligent or criminal, but that duty will not be extended to the owners unless there is knowledge of previous incidents or special circumstances which would charge the owners with knowledge of the danger and the duty to anticipate it.

SAME-rock concert- fireworks- personalinjury- award granted. State had a duty to protect persons attending outdoor rock concert on State property from possible injury due to fireworks being set off by other persons attending the concert and an award was granted Claimant for injuries sustained when she was hit by a rocket, as the security staff had knowledge of the danger and anticipated problems at the concert, but failed to take any action to prevent the fireworks being set off inside the premises except for cursory searches prior to allowing people to enter the concert grounds.

POCH,J.

On August 19,1975, the Claimant, Kathleen Martens, then age 20, and two friends attended a rock concert at the Mississippi River Festival, a program of summer entertainment held on the grounds of Southern Illinois University at Edwardsville (SIU-E). Ushers, security personnel and such services are provided by full- or parttime employees of SIU-E. The three attended as ticketpurchasing customers.

The River Festival is held in a natural amphitheatre. There is a stage under a pavilion at the front of the [*81] amphitheatre with chairs arranged for seating within the pavilion. Above this, on the slopes of the bowl that forms the amphitheatre, patrons sit on the grass in the open.

Claimant and her two companions arrived at the site at about 4:30 p m . ; the concert was scheduled to begin at 7:30 p.m. They initially picnicked outside the festival site and entered when the gates opened at 6:30 p.m. They took seats on the grassy hillside near and to one side of the pavilion. The SIU-E personnel at the gates checked their cooler and blankets for drugs and alcoholic beverages; no inquiry was made as to fireworks. .

At about dusk fireworks began to be set off by various unknown - persons in the crowd attending the concert. These consisted of firecrackers that merely explode and “bottle rockets”, which shoot into the sky and produce vivid colors without sending any sort of hard projectile into the crowd. During this activity there were no public address requests that the fireworks cease, nor were there any signs or warnings in evidence anywhere prohibiting or referring in any way to fireworks. No witness was able to testify as to any action taken by SIU-E personnel in response to the fireworks, although Gary Gunter, chief of police for SIU-E (who was not present at the festival site on the date in question), testified that their policy was to confiscate any fireworks his men found in any patron’s possession.

The crowd for this particular River Festival performance, Jefferson Starship, numbered about 20,000 persons, which was considered to be as large a crowd as would be expected to attend any River Festival event. Gunter testified that the number of SIU-E personnel on duty, both ushers and regular security people, for this night was between 200 and 250. He also testified that trouble is to be anticipated at a rock concert such as was [*82] held that night because of the nature and size of the crowd.

Claimant testified she had been to rock concerts before this night at the River Festival and had witnessed fireworks at every one. However, she had never seen any that involved the firing of any projectiles into or over the crowd.

At about 8:15 p.m., a bright pink, large flare caught the attention of Paula Lehman, one of the Claimant’s companions. It went up from the rear of the amphitheatre within the festival area and flew over where Claimant and her companions were seated. Miss Lehman testified that it reminded her of a signal flare, and she thought it would pass beyond them. Claimant’s attention also was drawn to this bright flare, and she commented that “this is going to hit someone.” The next thing either witness remembered was Claimant’s being struck in the forehead by the flare’s projectile.

This projectile, admitted into evidence, consists of a metal tubular body about eight inches long and 1% inches in diameter. About three inches of the body was solid; the remainder, hollow. A collar with fin-like projections is attached to and slides along the solid end.

No witness could testify as to who set off this flare or whether any SIU-E personnel were in the area from which the flare was set-off.

Claimant was cut on her forehead just above the bridge of her nose. She was taken by ambulance to the emergency room of a local hospital, where the laceration was sutured. She subsequently lost three days from her employment, an income loss of $63.84. She incurred a bill of $100.00 from the emergency room physician, a bill [*83] of $73.00 from the hospital and a bill of $47.00 from the ambulance.

Thereafter, Claimant was treated by Dr. Donald Buser, her local physician. He testified that he first saw her on September 10,1975, for injuries resulting from the August 19 accident. His examination revealed a suture line above the nose and along the midline of the nose extending from the area above the inside of the left eye to the area above the inside of the right eye, three-fourths of an inch long. There was also a one-inch laceration along her nose. She was complaining of constant headaches. X-rays and an EEG were taken, both of which failed to disclose anything. He prescribed medication to relieve her headaches.

Dr. Buser saw Claimant for more time in the next nine months, during which time the frequency of her headaches had been reduced to once a month. Dr. Buser’s bill for his treatment during this period was $73.00 and the EEG exam at the hospital cost $45.00.

Claimant testified that her eyes were swollen shut for three to four days following the accident and that she had bruises for about three weeks.

Claimant still has a noticeable half-moon shaped scar over the bridge of her nose plus a scar running vertically below it onto the bridge of her nose.

The possessor of land has a duty to use reasonable care to protect an invitee against a known, dangerous condition if it constitutes an unreasonable risk of harm to the invitee and if the possessor should expect that the invitee will not discover or realize the danger or will fail to protect himself against the danger. (William v . Wiewel (1976),36 Ill. App. 3d 478,344 N.E.2d 34.) It is undisputed [*84] that Claimant was an invitee of Respondent. The issues to be determined are therefore: (1) Was the situation enough to constitute a “known, dangerous condition”?

(2) Did Respondent have reason to believe that Claimant would not realize the danger or would fail to protect herself from the danger? and (3) Did Respondent use reasonable care to protect Claimant from the actions of third persons?

According to testimony, the launching of fireworks or projectiles was a common occurrence at concerts hosted by SIU-E. The legislature has seen a situation. (Ill. Rev. Stat., ch. 127?h, par. 128). The legislation was specifically designed to protect human life and property. It evidences a clear legislative expression that lighted, exploding, and flying objects are dangerous to the public. Moreover, as more persons are exposed to such dangerous objects, the risk of injury is proportionately increased. The situation at the festival on August 19, 1975, was clearly dangerous; and since testimony indicates that occurrences of fireworks at rock concerts hosted by Respondent were the rule rather than the exception, Respondent should have been aware of the dangerous situation.

The second question, then, is whether Respondent should have expected that Claimant would not discover or realize the danger or would fail to protect herself against the danger. Testimony indicated that there were between 200 and 250 ushers and regular security people on duty the night of the incident. Claimant had every reason to believe that these people were there for her protection and would take necessary steps to eliminate any dangerous situation-especially a situation which was prohibited by State law. Respondent was the person [*85] charged with enforcing this law, and it cannot transfer to Claimant the duty to protect herself any more than she did in such a large public gathering.

The final question is whether Respondent used reasonable care to protect Claimant from the actions of third persons. The rule of law regarding a landowner’s duty to guard an invitee against the actions of a third person, whether negligent or criminal, is that the duty will not be extended to the owners unless there is knowledge or previous incidents or special circumstances which would charge the owners with knowledge of the danger and the duty to anticipate it. (Manchu v. Field Museum of Natu~alHistory (1972), 5 Ill. App. 3d 699,283 N.E.2d 829.) It has already been determined that Respondent had knowledge of the danger, and testimony confirms that it did anticipate the danger. Gary Gunter, chief of police for SIU-E, testified that on a night such as the night in question trouble was always to be anticipated because of the nature and size of the crowd. Respondent therefore is charged with the use of reasonable care to protect Claimant from danger. Respondent failed in this respect. There is nothing in the record to show any action by Respondent other than a cursory search prior to entering the premises. Respondent presented no testimony that its employees took any steps to prevent the fireworks after they began being set off inside the premises. Because of the statutory prohibition, Respondent has an affirmative duty as a State agency to enforce the law or suffer the consequences of its inaction. The failure to even warn those violating the law after the fireworks began bespeaks to the violators at least tolerance of their actions by SIU-E. Such encourages rather than discourages the illegal and unsafe activity.

We believe an award of $10,000.00 for lost wages, [*86] for pain and suffering, hospital, doctor and ambulance bills, and for permanent scars is a just and fair award.

Claimant is hereby awarded the sum of ten thousand dollars ($10,000.00).

( No . 76-CC-2461-Claim dismissed.)

P AUL G. HOLLIS, J R ., Claimant, 0. T HE STATE OF ILLINOIS,

Respondent.

Opinion filed August 6,1981.

P ATRICK J. M ORAN , for Claimant.

TYRONE C. FAHNER, Attorney General (KEVIN J. CAPLIS, Special Assistant Attorney General, of counsel), for Respondent.

NEGLIGENCE-proximate cause must be shown in negligence claim. In order to recover on a claim of negligence, the Claimant must establish that there was negligence on the part of the State, that the negligence was proximate cause of injury and that Claimant was not contributorily negligent.

HlcHwAYs-!hte is not insurer of persons travelling on highways.

SAME-bicyclist-pothole-personal injury-award denied. Claimant was denied recovery for injuries sustained when his bicycle struck a pothole causing him to be thrown from the bicycle, as there was no showing that State had actual or constructive knowledge of the defect, and the testimony also showed that Claimant was not looking ahead at the time and therefore could possibly have avoided the pothole if he had been watching the road.

HOLDERMAN, J

This is a claim for personal injuries arising out of a bicycle accident on a State highway. Claimant alleges that he was injured on October 10, 1975, at the overpass of St. Charles Road and the 1-90 Expressway. Claimant alleges he was riding a bicycle which struck a pothole in the pavement causing him to be thrown from the bicycle which resulted in the injuries complained of.

[*87] Claimant, a young man of 18 years of age and an experienced bicyclist, was operating a 10-speed bicycle eastbound in the right hand lane of St. Charles Road at or near the bridge overpass over the 1-90 Expressway. He had been over the road in question approximately six months prior to the time of the accident.

The overpass bridge had a severe incline and as Claimant reached a point about three quarters of the way toward the crest of the incline, he glanced to his left for a few seconds to look for traffic coming up behind him. He then felt a jolt and remembers nothing further until he awoke in the hospital. He never saw the pothole in the pavement which he claims caused his bicycle to fall. The pothole was approximately four feet square and about three inches deep.

The accident occurred on a clear day at about noon. Claimant alleges he did not know what speed he was going at the time of the accident .but there were no obstructions to his vision except for an automobile travelling about 30 feet ahead of him in his lane of traffic.

A local police officer testified that, after being called to the scene of the accident, he found Claimant’s body 22 feet west of a pothole in the pavement. Claimant’s bicycle was found by the officer to be 38 feet west of the pothole. He further testified that the size of the pothole was as heretofore indicated. He testified that he had travelled the area of the accident within a few weeks prior to the accident but had not noted any potholes nor had he reported any potholes to the State Department of Highways.

Before Claimant can recover, he must establish the fact that there was negligence on the part of Respondent, that said negligence was the proximate cause of the [*88] injuries, and that he was not guilty of contributory negligence.

The record is devoid of any actual knowledge on the part of Respondent as to the existence of the pothole and the only constructive knowledge would be the result of the testimony of the attorney for Claimant who qualified as a civil engineer. He stated that the pothole, in his opinion, was in existence between 30 and 90 days prior to the accident.

There are conflicting stories as to how the accident occurred. A nurse from Memorial Hospital of Du Page County testified, from hospital records, that Claimant stated, on his arrival at the hospital, that a wheel had come off the bicycle throwing him on his face, thereby causing the injuries complained of.

Claimant’s bicycle was collapsible. His testimony was to the effect that he turned to his left for a period of 10 seconds and was not watching the road ahead of him and therefore did not see the pothole in the pavernent. He testified that he remembers hitting the pothole and that his next recollection is waking up in the hospital.

The evidence shows the pavement was dry and there were no obstructions to Claimant’s vision.

This Court has repeatedly held that the State is not an insurer of persons travelling upon its highways but that it does owe ordinary care in the maintenance of its highways. See 27 111. Ct. C1. 342.

It is the Court’s opinion that Claimant has not proven that the State had actual or constructive knowledge of the defect in the highway and therefore was not negligent in the maintenance of said highway. Claimant must also prove that he was free from contributory [*89] negligence at the time of, or immediately prior to, the accident.

This Court has held that if Claimant looks but does not see the defect that caused his accident, the State is not responsible.

In this case, the testimony of Claimant is to the effect that he, for a period of 10 seconds or more, was not looking ahead and did not see the defect in the pavement which was approximately four feet square.

This Court has previously held that “where evidence showed that Claimant could have avoided hole in pavement had she been watching, freedom from contributory negligence was not proven.” See Schnell 2). State of Illinois, 24 111. Ct. C1. 257.

In the case of McAbee 2). State of Illinois, 24 Ill. Ct. C1. 374, this Court held as follows: “As we have held many times, and as have other courts, this Court will not tolerate one testifying that they looked and did not see something, which appeared from their testimony would be very apparent.”

In this case, a four-foot-square hole in the pavement would have been evident to anyone who had been watching the road ahead. The McAbee case is nearly identical to the present case. A bicyclist was injured on a clear day with no obstructions to mar the visibility and Claimant did not see the hole in the highway that caused the accident.

It is the Court’s opinion that Respondent did not have actual constructive knowledge of the defect in question and the only attempt to prove such knowledge was by the testimony of Claimant’s attorney. The supreme court of the State of Illinois, in the case of M c K e y v . McKean (1943), 384 111. 112, 51 N.E.2d 189, used the [*90] following language where the attorney for one of the parties testified in the cause he was trying: “This practice has been repeatedly condemned by this court. The testimony of an attorney in a case under such circumstances is entitled to little or no weight or credit.”

The testimony by the attorney for Claimant being the only evidence as to actual or constructive knowledge by the Respondent, Claimant has failed in his proof in that respect and also in his failure to prove he was free from contributory negligence.

This cause is dismissed.