Dexter Chism v. State of Illinois

ORDER

STORINO, J. Claimant, Dexter Chism, was incarcerated at Logan Correctional Center at the time of the accident. On July 9, 1999, during the morning roll call, Claimant and another inmate were given the assignment of cleaning the windows at the Security Building, which was a two-story building. Claimant had not had a previous window-washing assignment and had not received any safety training prior to that time. Claimant testified that he did not refuse the work assignment because if he had refused it, he could have faced disciplinary action.

Upon being given the assignment, Claimant was instructed by Officer Silveus, the supervising officer, to go to the garage and get a ladder, spray [*214] bottle, squeegee and a roll of paper towels. Claimant retrieved the cleaning supplies and began cleaning the outside windows at the front of the building.

When Claimant had to clean the windows on the second level of the Security Building, he initially stood on the roof of a porch to reach the windows.

However, he was instructed by another officer to get down because the building had been condemned and the roof was unsafe.

In the afternoon, Claimant was washing the outside windows at the back of the building. Claimant testified that he and Officer Silveus positioned the ladder. Claimant wanted to position the ladder, which was approximately 16 feet when fully extended, outside a row of concrete blocks that were lying on the grass in order to get more of an angle. However, Officer Silveus instructed him to put the ladder on the inside of several concrete blocks, which were approximately 2 feet from the building, resulting in a steeper angle. When Claimant expressed concern that the angle was too steep, Officer Silveus told him not to worry because he would hold the ladder.

When Claimant climbed the ladder to wash the second-floor windows, he was holding the spray bottle, the squeegee and paper towels. He did not have a tool belt in which to place these items. When Claimant was near the top rung of the ladder, he asked Officer Silveus if the window was clean. He turned around and saw that Officer Silveus was between 20 and 40 feet behind him.

Officer Silveus told him that there was a spot in the upper left hand corner of the window that needed to be cleaned. When Claimant extended himself to reach the spot, the ladder came off the wall. Claimant was holding onto the window screen, but because the screen was dry rotted, the nails holding the screen in place came out and the screen fell. At that time, nobody was holding the ladder.

Claimant was placed off-balance and fell approximately 20-25 feet to the ground.

When Claimant fell, his right foot hit the corner of a cement block that was on the ground and his left foot struck the ground. Officer Silveus ran up and told him to stay down. When Claimant looked at his leg, he passed out.

When he came to, he was in great pain. Someone cut his clothes and his shoes off and placed a neck brace on him. At that point, Claimant went into shock.

Claimant was transferred to Lincoln Hospital but, because there was no surgeon, he was transferred to Springfield Memorial Hospital. The entire time Claimant was screaming from the pain, but was not given any pain medication. When he arrived at the hospital in Springfield he was given morphine and Dr. Watson, an orthopedic surgeon, performed surgery on both his ankles. Screws and plates were placed in his ankles and he remained in the hospital for three to four days.

He was then returned to Logan Correctional Center. Claimant had casts on both ankles and traveled back and forth to see the orthopedic surgeon.

Approximately three to four months later, he had the screw removed from his [*215] ankle. Claimant continued to wear the casts on his ankles for several months.

Claimant developed complications in his right foot whereby his toes bent forward and locked up underneath his foot. This condition was diagnosed as hammer toes and Dr. Parker, a podiatrist, performed surgery to correct the condition.

Claimant was released from the Illinois Department of Corrections around March 15, 2000, and in June, 2000 had to receive additional treatment for his feet. His family physician referred him to Dr. Romano, an orthopedic surgeon, who shaved bone spurs and removed hardware from his right ankle.

Claimant testified that, from the time of the accident, he had constant pain in his right ankle and occasional pain in his left ankle. He had stiffness and swelling in both ankles. The pain and swelling increased when he stood or performed his job as a porter at Hill Correctional Center.

In 1999, Terry Silveus was employed as a correctional officer at Logan Correction Center. On July 9, 1999 he was supervising Claimant while he was washing the windows at the Security Center. He testified that the inmates were given supplies consisting of a bucket, some sponges a screwdriver and a 30-foot extension ladder. The ladder had two steel plates, ” and 1” long, with rubber grips on the bottom, to keep the ladder from slipping. Claimant was not provided with any safety harness or scaffolding. Silveus was never trained in the safe use of ladders and was not aware of any safety training that was provided to the inmates.

After lunch, Claimant was required to wash the windows on the south side of the Security Building. He helped Claimant position the ladder on a 20 foot by 8 foot concrete pad. They placed the bottom rung and feet of the ladder against some concrete foundation blocks that were on the ground 6 to 7 feet from the building, so that the ladder would not move. They did not place the ladder on the other side of the blocks to prevent slipping. Claimant climbed the ladder while holding his tools and, as he began to remove the screen from the window, the screen gave way and he fell from the ladder. The ladder itself did not move.

Silveus testified that he was standing on the cement pad when Claimant fell and that Claimant would have fallen on him had Silveus not moved. He was not sure if he was holding the ladder at the time Claimant fell but because the ladder was on the concrete pad and he did not believe that it would move. If he was not holding the ladder, he was approximately 1-2 feet away from it. After Claimant fell, his legs were mangled and he was screaming in pain. He told Claimant not to move and called for medical assistance.

[*216] Dr. Michael Watson is a board certified orthopedic surgeon. He testified that he treated Claimant in July of 1999 after a fall of approximately 18 feet while washing windows at the Lincoln Correctional Center. Both sides of Claimant’s ankles were fractured. Claimant had a right bimalleolar ankle fracture and the left distal tibia fracture was impacted into the talus, meaning that the leg was fractured slightly above the ankle itself and the end of the tibia bone, which is the main bone of the lower leg, had been pushed into the ankle causing a disruption of the ankle cartilage in the joint itself. This is, basically, an impact injury where the lower leg is driven into the ankle and broken into small pieces.

He performed surgery on Claimant using plates and screws to piece together the broken bones. After surgery, Claimant’s legs were placed in plaster splints, which were later converted to casts. Several months later Claimant developed numbness on the bottom of his right foot and clawing in his toes which means that the tip of the toes were starting to draw up and the tendons were pulling his toes in an upward direction. He referred Claimant to Dr.

Parker, a foot specialist for surgery. Dr. Watson testified that, in his opinion, the fractures of both of Claimant’s lower extremities were causally related to his fall from the ladder. He also believed that Claimant would develop arthritis in his ankles due to the loss of the articual cartilage in the ankle.

Dr. Mitchell Parker is a podiatrist with an emphasis on forefoot and reconstructive surgery. He testified that he first treated Claimant in October 1999. Claimant had been referred by Dr. Watson for evaluation of a clawfoot deformity that he had developed after an injury. After he had sustained bilateral ankle fractures when he fell from a ladder, Claimant had prolonged swelling and nerve damage and developed scolia contracture for the clawfoot deformity of the great toe and the lesser digits of his right foot. In December 1999, Dr. Parker performed a Hibbs-Jones type procedure on Claimant, which involved fusion of the interphalangeal joint of the great toe and the second, third, and fourth toe. In his opinion, the clawfoot deformity was secondary to the injury and whatever nerve damages that occurred with the severe ankle fracture.

Peter Cucuz, a safety and health expert, testified that in his opinion, the State violated accepted industry customs and practices and Occupation Safety and Health Administration (“OSHA”) standards and failed to exercise ordinary care for Claimant’s safety. He testified that Claimant should not have been using a ladder to clean the windows but should have been performing the task on a scaffold and with fall protection. He further testified that the ladder Claimant was given was too short for the task because Claimant could not properly hold on. If the ladder had been longer it would have been more stable, it could have been placed at a proper angle of approximately 76° and could have been secured at the top and the bottom. It was also his opinion that Claimant and the guards [*217] were not properly trained in the proper length of the ladder, how to set up and secure a ladder, and with respect to the nature of the hazard and fall protection.

This opinion was based upon his knowledge of the custom and practice of the construction industry and OSHA standards. Mr. Cucuz further testified that, in his opinion, Claimant was not negligent because he was not involved in the decision-making process since he was required to do what the guards instructed him to do.

The State has objected to the admission of Mr. Cucuz’s opinion into evidence, arguing that OSHA regulations do not apply to governmental entities such as the Illinois Department of Corrections (“IDOC”). First, we note that the State has not provided this Court with a citation to a case, which holds that OSHA regulations do not apply to IDOC. Further, Claimant has established a breach of the standard of care even if OSHA regulations do not apply to the IDOC. Mr. Cucuz testified that, apart from OSHA regulations, accepted industry customs and practices required that Claimant be provided with scaffolding and fall protection or a longer ladder. Since this opinion is based upon the custom and practice of the industry, it was properly admitted into evidence.

Based on the evidence, Claimant contends that the State failed to provide a safe work environment in which to perform his assigned task. In order for a Claimant to recover for personal injuries, he must prove that the State’s breach of this duty of care proximately caused his injuries Horton v State (1994), 46 Ill. Ct. Cl. 394. It is well-settled that the State is not an insurer of the safety of inmates in its custody. However, it does have a duty to inmates of its penal institutions to provide them with reasonably safe working conditions under which to perform their assigned work and to provide them with proper safety equipment to complete assigned tasks Branch v State (1992), 45 Ill. Ct.

Cl. 102, 104. The State is charged with this duty only when the harm is legally foreseeable. A legal duty requires more than a mere possibility of an occurrence Saulter v State (1995), 47 Ill. Ct. Cl. 152, 154. Here, the Claimant must prove that the apparatus was not set up in conformity with industry standards in effect at the time. See Saulter, 47 Ill. Ct. Cl. at 154.

We find that Claimant established that the State’s breach of its duty to provide Claimant with reasonably safe conditions caused his injuries. The evidence establishes that the State ordered Claimant to clean windows on the second story of a condemned building with inadequate equipment. An injury was clearly foreseeable since Claimant had been instructed by another officer to get down from the roof of the building because the building was unsafe. Neither Claimant nor the supervising officer had been trained in appropriate procedures for performing the job. As a result of either the inadequate training, inadequate [*218] equipment, or both, Claimant fell from the ladder on which he was working and was injured.

The State contends that any injury was due to Claimant’s own negligence. It argues that because Claimant had previously worked as a roofer and had used a ladder to get to the roof, he should be familiar with the use of ladders.

This Court has previously noted that prisoners and inmates do not ordinarily possess the freedom of choice inherent in doctrines of assumed risk and contributory negligence Branch 45 Ill. Ct. Cl. at 105. Here, Claimant testified that he had only worked on one-story homes, not on two-story structures. More importantly, Claimant had no voice in the decision-making process. Claimant testified, and Officer Silveus confirmed, that if Claimant had refused the work assignment, he would have faced disciplinary action. Thus, there was no comparative negligence on Claimant’s part.

We hereby award Claimant the amount of $70,043.17 for medical expenses, pain and suffering, disability and disfigurement. Claimant’s medical expenses resulting from the injury totaled $46,543.17. The State is entitled to a set-off for the amounts that it had paid toward the medical expenses; however, at the time of the hearing it was unable to determine those amounts. The State is given 30 days from the date of this order to submit evidence of the amounts it had paid toward Claimant’s medical expenses. If such evidence is not submitted within 30 days, the State will not receive a set-off, and at such time this matter will be deemed fully resolved and dismissed with each side to bear its own costs and attorney’s fees.