Larry D. Reichert v. University of Illinois

ORDER

JANN, J. This cause is before the Court on Respondent’s Motion to Dismiss First Amended Complaint or in the Alternative, to Strike Prayer for Damages and Claimant’s response.

IT IS HEREBY ORDERED:

1. Respondent’s Motion to Dismiss First Amended Complaint is denied. 2. Respondent’s Motion to Strike Prayer for Damages in an amount in excess of $100,000 is granted. 3. Respondent’s request for sanctions is denied.

OPINION

JANN, J. Claimant filed a Complaint in tort for personal injury. The Complaint alleges that the University of Illinois, Respondent, (1) negligently failed to maintain an auger and power takeoff shaft (hereinafter PTO), (2) negligently operated an auger and PTO; and (3) failed to warn Claimant of the defective PTO, causing him severe personal injuries. A hearing was held before Commissioner Ysursa on December 12, 2005. Mark S. Johnson and Gary Stark represented Claimant, and Barbara J. Mann and Traci Nally represented Respondent.

I. Preliminary Issues

Prior to the start of the hearing a number of preliminary issues were addressed. Respondent filed its Third Motion to Dismiss First Amended Complaint or for Sanctions on May 23, 2005. The Motion was denied on June 23, 2005.

[*232] Prior to the start of the hearing Respondent moved to add affirmative defenses. Claimant orally moved to deny the motion to add affirmative defenses. Respondent’s mot ion to add affirmative defenses was granted.

Respondent filed four motions in limine. The first motion in limine sought to bar the use of photographs that were not disclosed to Respondent by Claimant. Respondent asserted that it requested the photographs in discovery, requested that any photos be brought to Claimant’s discovery deposition, and sent Claimant a Supreme Court Rule 201(k) letter on the subject. Claimant asserted that the photographs were made available for inspection by Respondent but Respondent failed to avail itself of the opportunity. Claimant sent a supplemental response to interrogatories and stated that he would produce the photographs, but never did (see Respondent’s Exhibit 2). For failure to properly disclose the photographs Respondent’s first motion in limine is granted and the photographs are barred from evidence.

The second motion in limine sought to bar any medical bills not disclosed in discovery. Claimant claimed he produced the medical bills he intended to introduce into evidence. Respondent claims Claimant did not. The parties pre-marked some exhibits for clarity on the motion in limine.

Respondent concedes it received Plaintiff’s Exhibit 12, which includes bills from Lourdes Hospital, from the insurer’s claims representative, but not from Claimant. Claimant asserted that he produced Plaintiff’s Exhibits 13 and 14, which are detailed billings from Claimant’s insurance company, but Respondent denied ever receiving them. Since Respondent had a copy of Plaintiff’s Exhibit 12 well prior to the hearing, there is no potential prejudice. Therefore, the motion in limine is denied as to Plaintiff’s Exhibit 12. As for Plaintiff’s Exhibits 13 and 14, Claimant could not demonstrate that he, in fact, produced these bills. Therefore, the motion in limine as to Plaintiff’s Exhibits 13 and 14 was granted.

The third motion in limine seeks to bar the presentation of evidence of lost income of Claimant. Claimant stated that he had no intention of seeking lost income. Therefore, the motion in limine, while moot, was granted.

The fourth motion in limine sought to bar the presentation of damages in excess of $100,000. The Court has previously ruled that this particular action is subject to the statutory cap of $100,000, (705 ILCS 505/8(d)). While no potential award in this case will be in excess of $100,000, nothing in the rules or statute limits the presentation of damages in excess of $100,000. Respondent’s fourth motion in limine was denied.

II. Facts

Claimant testified at hearing. Claimant was a forty-six (46) year old farmer on the date of the accident with a high school education. He has worked as a farmer his entire life, and is very familiar with farm equipment including augers and PTO’s.

[*233] On October 8, 1996, Claimant went to the Dixon Springs Agricultural Center, (DSAC), to deliver a load of corn. He arrived in his truck with approximately 600 bushels of corn around 9:30 a.m. It was a cool fall day and Claimant was wearing jeans, an undershirt, and an untucked flannel shirt worn like a jacket. When he arrived at DSAC he went to the headquarters, then to the scales to weigh his load, and was directed to a grain bin to unload his truck by Respondent’s agent. The grain bin contained a hopper in front of an auger and a PTO powered by a tractor. When Claimant arrived at the hopper, the auger and tractor were running and he was directed to dump his truck load into the hopper in front of the auger. During this entire process Brian Bremer, an employee of Respondent, directed Claimant’s activities. Claimant testified that the set up of the tractor, PTO, auger and hopper was done prior to his arrival.

After the truck was aligned to unload, Claimant and Bremer began to unload the corn. Periodically, Claimant would go to the cab of his truck to raise the truck bed in order to get all of the corn out. The rear corners of the truck bed collected corn that was not sliding out of the truck. In order to get the corn from the corners of the truck bed Claimant stated that he and Bremer would have to use a crank to roll back the tarp covering his truck bed and then get into the truck bed to manually shovel the corn from the bed corners into the hopper.

Bremer began cranking the tarp on the side of the auger opposite the tractor. Claimant stood on the same side of the tractor used to power the auger and in between the truck bed and the PTO. At a certain point Bremer could not crank any further and passed the crank handle to Claimant. The crank handle was passed over the running auger to Claimant. As Claimant reached for the crank handle his flannel shirt, which was un-tucked, got caught in the PTO.

Claimant testified that he knew immediately what had happened and slammed his body into the PTO for fear that he would be tugged into the PTO if he pulled away. Claimant testified that both his flannel shirt and his undershirt ripped off and burned his arm in the bicep area. The shirt stopped the PTO and Claimant realized that his left arm was broken because the bone was pushing against his skin. Claimant got into a pick up truck with Bremer and was driven to the main building at the facility. From there, he got into a vehicle with Frank Ireland, an employee of DSAC, and was taken to a hospital in Harrisburg.

Claimant stated that the pain after the incident was extreme and during the 45 to 60 minute drive to the Harrisburg Hospital the pain was worst. He testified that he had to undergo physical therapy in order to learn how to use his arm again after the injuries, and that his arm is not the same as it once was. He cannot carry much weight with his elbow bent, and cannot lift things that involve bending his elbow. His range of motion is limited and he can only reach behind his head to the hairline on his neck. Claimant testified that he previously enjoyed fishing and hunting, but cannot do either activity as before and now rarely tries to participate. He stated that he has two grandchildren and cannot pick them up like before the injury. We realize the grandchildren are now too large to lift but accept the restriction at the time of injury. Claimant’s arm affects other daily activities such as driving but he adjusts to accommodate.

[*234] Claimant claimed that he has trouble sleeping on occasion thinking about the accident.

Claimant testified that in his experience a PTO with the properly installed and operational safety guard would prevent clothes from getting caught in the PTO. On the date in question Claimant could not see whether the guard was damaged because when he arrived the PTO was operating. When running, the guard spins so fast one cannot tell if there are defects. Claimant testified that he asked Bremer to turn off the PTO while the two unrolled the tarp off the truck bed, but Bremer did not do so or even respond. It appears Bremer did not hear the request.

On cross-examination, Claimant stated that he has worked with farm equipment including PTO’s for years. He conceded that he was aware of incidents where clothes got caught in farm equipment including PTO’s.

Claimant testified that his shirt was unbuttoned at the time it got caught.

Claimant was presented his deposition transcript wherein he never testified that he asked Bremer to turn off the PTO. He stated that he personally did not turn off the PTO even though the lever was near him. Claimant conceded that his knowledge of the payment of the medical bills is from insurance company information and that he personally did not pay the medical bills.

Brian Bremer was next to testify. Bremer is an employee of the DSAC.

On the date in question he assisted Claimant to unload the corn from his truck.

Bremer testified that the protective guard on the PTO was the same one in use since the PTO was acquired at DSAC years earlier. Bremer testified that he started the auger, PTO and tractor on the date in question, but he did not inspect the PTO protective guard for defects. Bremer stated that when the PTO guard is moving it spins so fast defects cannot be detected by the naked eye. Bremer described the PTO guard as “old and weathered”. Bremer testified that he has had years of experience in dealing with farm equipment including PTO’s. He stated that while any PTO is dangerous, a properly functioning guard makes the PTO safer. Bremer stated that if working properly, the protective guard should prevent loose clothing from getting caught in the PTO. Respondent reserved the right to question Bremer for its case in chief.

Claimant next called Frank Ireland as a witness. Ireland was the supervisor of the animal science department at DSAC. On the date in question he was in the main building when Claimant arrived with Bremer. Ireland stated that Claimant appeared to be in considerable pain. Ireland testified that he does not recall the PTO protective guard being replaced during his tenure at DSAC beginning in 1990. He stated that in 1996 the University implemented its policy that all equipment is to be inspected prior to use. He stated that the responsibility to inspect the PTO in this case would have been Bremer’s.

Respondent reserved the right to question Ireland for its case in chief.

Claimant presented the testimony of Dr. Richard Morgan via evidence deposition taken on June 24, 2005. Dr. Morgan is a board certified orthopedic surgeon who has been licensed in the State of Illinois since 1976. Dr. Morgan first came to see Claimant in connection with his injuries suffered during the [*235] DSAC incident on October 24, 1996. Claimant had seen Dr. Morgan prior to his injury for other complaints. Claimant had already undergone surgeries under the care of a Dr. Mayo in Paducah, Kentucky when he saw Dr. Morgan for this injury. Dr. Morgan testified that he reviewed the records of Dr. Mayo and Dr.

Mayo performed a “humeral rodding” procedure on Claimant. In that procedure, a rod is drilled into the humerus. Dr. Morgan stated that he reviewed x-rays of the humerus prior to, during and post humeral rodding surgery, and concurred with dr. Mayo’s diagnosis and treatment per the records reviewed.

Dr. Morgan reviewed notes pertaining to the injuries suffered by Claimant to his brachial artery. The brachial artery is the principal conduit that carries blood into the arm. The brachial artery was damaged so severely it was not amenable to surgical repair. Therefore, the vascular surgeon had to perform an “interposition graft” in the segment area. Dr. Morgan stated that this care had to be performed immediately to prevent further damage to the arm, and the surgery was reasonable and necessary to treat Claimant’s injuries.

Dr. Morgan became the primary physician for Claimant’s injuries. Dr.

Morgan stated that aside from the break and the vascular problem, Claimant’s muscle and skin envelope in the front of his arm was torn. He stated that Claimant’s bicep was essentially torn in half and threadbare. The soft tissue injuries cause problems in the healing of the humerus due to lack of blood flow and oxygenation of the tissues and bone marrow for cellular growth and detoxification.

Dr. Morgan stated that in December 1996 he noticed that Claimant’s humerus was not closing together at the break. To rectify this, Dr. Morgan performed a surgery replacing the rod placed in his humerus by Dr. Mayo with a different rod intended to bring the humerus together and close the gap where the break occurred. In January 1997 he performed corrective surgery, called a “nail exchange.” The nail exchange surgery required hospitalization.

In May 1997 the gap was still not completely narrowed, so Dr. Morgan performed a “grating by marrow aspiration” procedure. This procedure involved injections into the remaining gap of bone marrow and white blood cells. This was an outpatient procedure.

In August 1997, the gap remained so Dr. Morgan performed more extensive surgery on the humerus. The August 1997 surgery involved removing the existing hardware and attaching with nine screws an eight inch long and one inch wide compression plate to the humerus. Along with the plate, a bone graft was performed by taking bone from Claimant iliac crest. Finally, an internal stimulator was inserted to trigger bone re-growth. The procedure was successful and the humerus healed. Eventually the stimulator was removed, but all other hardware remains in Claimant’s arm.

In February 2000, Dr. Morgan stated Claimant reached the maximum medical improvement he could offer, and he released him from his care.

Despite reaching the maximum medical improvement, Dr. Morgan opined within a reasonable degree of medical certainty that Claimant’s arm is and will be disabled. He stated that Claimant’s shoulder motion has been limited due to [*236] the repeated surgeries of the upper arm, wherein the rotator cuff was violated in order to perform the procedures. He stated that Claimant’s bicep is basically “gone” and the remaining muscles have limited function. He testified that Claimant can only lift approximately 10 to 15 pounds while bending his elbow, while his other arm can hold about 70 pounds at bent elbow. He expects that Claimant will continue to suffer pain associated with the arm, and future care and medication are probable.

In conclusion, Dr. Morgan opined within a reasonable degree of medical certainty that Claimant’s injuries were caused by the PTO incident on October 8, 1996.

At the close of his case, Claimant moved to admit into evidence Plaintiff’s Exhibits 1 through 9 and Plaintiff’s Exhibit 15. Plaintiff’s Exhibits 1 through 4, 8 and 15 were admitted without objection. Plaintiff’s Exhibits 5 through 7 were barred per the Court’s ruling on Respondent Motion in Limine.

Plaintiff’s Exhibit 9, the bill of particulars, was admitted over the objection of Respondent. We find the admission of Claimant’s Exhibit 9 was erroneous and reverse the Commissioner’s finding as to Exhibit 9.

At the close of the Claimant’s case, Respondent moved for a directed verdict. In order to defeat the motion for directed verdict, a claimant must have established a prima facie case Baker v. Jewel Food Stores, 355 Ill.App.3d 62, 66 823 N.E.2d 93, 99 (1st Dist. 2005). A claimant has established a prima facie case when he has presented evidence supporting his position on each essential element of his cause of action. Baker, 355 Ill.App.3d at 66, 823 N.E.2d at 99.

As will be expounded upon in the Analysis section, Claimant has established a prima facie case that Respondent owed a duty to Claimant, Respondent breached the duty, and Claimant suffered damages. The directed verdict was denied at hearing and is affirmed.

Respondent’s first witness was Frank Ireland, its employee at DSAC.

Ireland testified that the University initiated a safety inspection at the DSAC facility in 1994 and 1995. He stated that all equipment in need of repair was listed in this report. There was no reference to the auger or PTO in the report.

Ireland stated that he had no knowledge that the PTO needed any repairs.

Ireland testified that in his experience one never wears loose clothing around moving equipment. He stated that he learned this in a vocational agriculture class in high school. On cross-examination, Ireland conceded that he had no personal knowledge of any inspection of the PTO guard.

Respondent next recalled Brian Bremer. Bremer testified that he had been farming for 50 years and he concurred with Ireland that general rules of safety indicate that one does not wear loose clothing around moving equipment.

He also stated that he learned this safety tip in vocational agriculture class in high school. He stated that he was unaware of any dangerous condition of the PTO and that he did not turn the PTO off when the tarp was being rolled back.

He testified that nothing prevented Claimant from turning off the PTO by moving the lever behind the seat of the tractor, which Claimant could reach from where he was when his shirt got caught.

[*237] Respondent moved to admit Respondent’s Exhibit 3 into evidence which was admitted without objection.

III. Analysis

Claimant has stated a claim for negligence. In order to prevail, Claimant must establish a duty owed to Claimant by Respondent, a breach of that duty by Respondent, and damages resulting proximately from that breach.

Chandler v. Illinois Central Railroad Co., 207 Ill2d 331, 340, 798 N.E.2d 724, 729 (2002). Respondent owes a duty of reasonable care to entrants it allows on its property and the use of its property. Entertainment Specialist Ltd., Inc. v.

State of Illinois, 51Ill.Ct.Cl. 254 (1998). Among these include duties to (1) maintain its equipment in reasonably safe condition, (2) operate its equipment in reasonable safe manner; and (3) warn of dangerous conditions in its equipment.

Entertainment Specialist, Ltd., Inc. v. State of Illinois, 51Ill.Ct.Cl.254 (1998).

The duty of reasonable care arises out of the superior knowledge possessed by the Respondent if the facts support such a finding. The duty is not meant to make Respondent a guarantor of safety, but does cover foreseeable harms based upon superior knowledge when an invitee is in an inferior position to discover a risk on the premises Entertainment Specialist, Ltd., Inc. v. State of Illinois, 51 Ill.Ct.Cl.254 (1998).

In this case, Respondent invited Claimant, as well as other farmers, to DSAC to sell grain. Respondent then directed Claimant to unload his grain at an auger and PTO supplied by Respondent. In doing so, Respondent is responsible to provide a reasonably safe environment in which the operation is conducted.

This entails ensuring that its equipment is maintained and operated in reasonably safe condition. Rosario v. State of Illinois, 43Ill.Ct.Cl. 282 (1991), Malone v.

State of Illinois, 4 Ill.Ct.Cl. 354 (1994). Respondent’s duty is enhanced in this case due to the fact that Bremer, an agent of Respondent, testified that he set up and started the auger and PTO prior to the arrival of Claimant. Bremer stated that once the PTO is in operation an observer cannot tell if the PTO guard is damaged because a non-damaged PTO guard spins at such a rapid speed that it is a blur. Through its agent, Respondent had a duty to maintain and operate the PTO guard in a reasonably safe condition. Ireland also stated it was Respondent’s duty to inspect the PTO.

Claimant asserts that there was a defective PTO guard and therefore Respondent had breached its duty to maintain and operate the PTO in a reasonably safe manner. Respondent countered that Claimant had not proved the defect by a preponderance of the evidence. Respondent is correct that there is no definitive testimony from any witness of actual knowledge of the condition of the PTO guard prior to the incident. The consistent testimony of Claimant, Bremer and Ireland was that an undamaged PTO guard is intended to prevent clothing from being caught in the shaft while it is in operation.

The next question raised by the Complaint is whether Respondent breached its duty to warn Claimant of the allegedly defective condition. The [*238] duty to warn rests within the knowledge of the Respondent. In order to trigger the duty to warn the Respondent must possess actual or constructive knowledge of the defect. Entertainment Specialist, Ltd., Inc. v. State of Illinois, 51 Ill.Ct.Cl.254 (1998). Respondent argued that it had no knowledge of the condition of the PTO guard. Bremer admits that he did not know the condition of the PTO guard on that day because he failed to inspect it. Ireland testified that Bremer should have inspected the guard prior to operating the PTO. This testimony establishes that Bremer breached his responsibility to inspect the PTO guard. The proofs demonstrate the guard was in poor condition after the incident, and had not been replaced in at least 6 years. The weight of the evidence favors a conclusion that a defect existed on the whole of the evidence.

The next issue is Respondent’s affirmative defense of contributory negligence. Respondent bears the burden of establishing contributory negligence by a preponderance of the evidence. Madison-Kedzie, Inc. v. State of Illinois, 39Ill.Ct.Cl.11 (1986). If Claimant’s negligence is greater than 50% then Claimant’s claim fails. 735 ILCS 5/2-1116, Akerberg v. Metropolitan Rail, 733 F.Supp.111 (N.E.Ill.1991).

In this case, Respondent alleges that Claimant was negligent by (1) wearing loose clothes that could get caught in the PTO, and (2) failing to turn off the PTO prior to reaching over it to receive the tarp crank from Bremer.

Testimony from Claimant, Bremer and Ireland established that you do not wear loose clothing around moving farm equipment. Claimant violated this safety rule. Testimony also established that Claimant could have turned off the PTO prior to reaching over the PTO to receive the tarp crank. Claimant even testified that he asked Bremer to turn off the PTO prior to reaching over for the crank and despite knowledge that the PTO was running, he still reached over it, exposing himself to danger. Despite Claimant’s argument to the contrary Claimant’s testimony indicates his knowledge of the specific risks involved, and his clear understanding that he could have refused to accept the risk.

The next question is Claimant’s and Respondent’s proportionate share of the total negligence. While Claimant was negligent, all testimony indicates that Respondent failed to exercise ordinary care to inspect its equipment or properly direct Claimant for safe unloading of the grain. Claimant’s negligence, while significant, was less than 50%. Claimant is 49% at fault and any award will be adjusted accordingly.

Claimant suffered significant injuries due to the PTO. Respondent argues that Claimant should be limited to pain and suffering because Claimant failed to prove that his medical bills were reasonable for like services in the area. In order to admit medical bills into evidence a claimant must establish that the medical services were necessary to treat his injuries and that the bills were reasonable for like services in the area in which they were provided. Arthur v.

Catour, 216 Ill.2d 72, 82-83, 833 N.E.2d 847, 853-54 (2005). A claimant can prove medical bills are reasonable by either (1) presenting testimony that the bills were paid, or (2) presenting medical expert testimony that the bills were reasonable. Arthur, 216 Ill.2d at 82-83, 833 N.E.2d at 853-54.

[*239] In this case, Claimant testified that the medical bills were paid, however, cross-examination established that he had no personal knowledge of who paid, or how much was paid. His testimony lacks the foundation to establish the medical bills were actually paid. Claimant’s expert’s testimony is not determinative of the amount of bills and his expert testimony failed to establish the bills attributable to the care actually testified to and admissible.

Respondent is correct in arguing Claimant has failed to prove the amount of his medical bills, or prove payment or economic loss arising from an obligation to pay the bills.

Claimant has demonstrated that he suffered severe injury requiring successive surgeries., pain and suffering past, and present, disfigurement and loss of use of his arm in normal daily activities. We find his reasonable damages total at least $250,000.00 based upon the excruciating pain he endured while en route to medical care for at least 45 to 60 minutes, the reasonably expected pains of healing and successive surgeries through most of 1997, as well as the disfigurement he exhibited at trial with obvious and demonstrated loss of use of his arm which is proved permanent by the testimony of record.

The Court has previously held comparative negligence is to be applied to total damages in Siefert v. State (1989, 42 Ill.Ct.Cl. 8, 16-17. The statutory maximum is then applied to damages after reduction for comparative negligence as opposed to set-offs. In this claim Claimant has demonstrated entitlement to an award after application of comparative fault which exceeds the $100,000.00 maximum award available under 705 ILCS 505/8.

Claimant is hereby granted $100,000.00 in full and final satisfaction of his claim.