Marylin a. Thompson v. Illinois Department of Agriculture

OPINION

Burns, J.

This claim is before the Court upon a recommendation from Commissioner Patricia Murphy following an evidentiary hearing.

Claimant, MARYLIN A. THOMPSON, is seeking reimbursement in the amount

of $100,000.00 for compensation for injuries she received as a result of a fall from a

golf cart at the Du Quoin State Fairgrounds on August 25, 2006.

The Claimant filed

her Complaint on August 24, 2007.

An evidentiary hearing on this matter took place

on April 15, 2010.

FACTS

Marylin Thompson, the Claimant, attended a George Jones concert on the evening of August 25, 2006 with her now deceased husband.

Claimant entered the [*148] Du Quoin State Fairgrounds at Gate 5.

At that time, a courtesy golf car approached the Thompsons and offered them a ride to the concert.

The Thompsons accepted the offer.

While attempting to board the six-person golf cart, the Claimant fell and injured her left knee.

The fall was witnessed by Illinois State Police Trooper Brian Lewis.

After the fall, the Claimant stayed for the concert and then required assistance to leave at the end of the concert.

Claimant declined the assistance of an ambulance, and instead drove herself to Carbondale Memorial Hospital.

At the time of the fall, her husband did not have a valid driver's license.

That evening at the hospital, x-rays were taken and the Claimant followed up later with her treating physician, Dr. Tom Davis.

Dr. Davis diagnosed the Claimant with a left tibial plateau fracture, aggravation of arthritis and she was given a knee immobilizer through November 2006.

Claimant complains that she still has pain from time-to-time.

Summary of Relevant Testimony Trooper Brian Lewis testified, in summary, as follows:

Trooper Lewis is employed by the Illinois State Police and was working at the Du Quoin State Fair Ground at the relevant time.

Trooper Lewis was stationed at Gate 5.

Gate 5 was one of the main entranceways for pedestrians.

Trooper Lewis witnessed Claimant attempting to sit on the courtesy golf cart.

Although the golf cart was several feet away from him, he witnessed the entire incident.

Trooper Lewis stated that the Claimant was not completely seated on the golf cart when the driver accelerated.

The Claimant's feet were on the cart, but she [*149] was not completely seated when the cart accelerated.

When the cart accelerated, the Claimant fell off of the cart.

Trooper Lewis assisted the Claimant in standing back up, and provided her with a chair.

The Claimant declined an ambulance.

On cross-examination, Trooper Lewis testified that he wrote a field report of the incident, which occurred at approximately 6:35 p.m.

The field report was written at or around the time the Claimant fell and contains the sum and substance of Trooper Lewis' observations.

On re-direct examination, Trooper Lewis testified that the Claimant told him at the time he came to her aid that her left knee was in pain.

The Claimant

additionally told Trooper Lewis that she heard a "pop" as she fell to the ground.

The Claimant, Marylin Thompson, testified, in summary, as follows:

The Claimant, now widowed, lives in Blairsville and is on disability due to her weight.

She does not work due to the disability and this condition existed long before August 25, 2006.

On August 25, 2006, the Claimant drove to the George Jones concert at the Du Quoin State Fair with her husband.

After parking their van, the Thompsons entered one of the main pedestrian gates.

At that time, a shuttle golf cart came by and the driver asked the Thompsons if they wanted a ride.

The Thompsons accepted the ride.

Mr. Thompson was on the left side of the cart, and the Claimant was on the right side.

The Claimant had her right leg up, getting ready to step up, when the cart began accelerating.

This caused the Claimant to fall backwards, causing a "pop" in [*150] her leg.

The Claimant testified that she was not seated at the time the cart began to accelerate.

Mr. Thompson yelled to the driver to stop, and the driver did so.

The

Claimant testified that the driver did not get off to see if the Claimant was hurt.

The

Claimant testified that the driver was not looking at her when this occurred, and she does not remember the driver saying anything before accelerating.

After the fall, Mr. Thompson and Trooper Lewis helped the Claimant into a chair.

At that time, the Claimant was not in severe pain and she believed the injury to only be a "sprain."

Therefore, the Claimant went to the concert as planned.

She

recalls taking an elevator to her seat.

However, as the concert proceeded, her knee began to feel worse.

She could not put her weight on her knee after the concert so she was put onto a stretcher.

Two emergency medical technicians, and her husband, then assisted her up and into her van, while she pulled on the steering wheel to pull herself into the van.

During

the drive, the Claimant used her right leg and her left leg was "killing her."

Mr.

Thompson did not have a valid driver's license at that time, so he did not drive.

The

Claimant drove herself to Carbondale Memorial Hospital, where she used a wheelchair.

The Claimant selected Carbondale Memorial Hospital because that is where Dr. Tom Davis has an office.

At the hospital, x-rays were taken and the Claimant was discharged without pain medication.

Mr. Thompson had to drive home because the Claimant could not get back into the driver's seat.

Instead, they opened the middle door and she pulled herself up by the seats and laid down.

When the Thompsons arrived home, they [*151] stayed in their van and slept until her husband could get some plywood for a ramp and borrow a wheelchair to get into the house.

After returning home, the Claimant was in pain, so she called Dr. Davis to get

the next available appointment.

During her appointment, Dr. Davis took x-rays and

put her leg in an immobilizer, which extended from the top of her foot to above her

knee.

Dr. David prescribed pain medication and restricted Claimant from any

weight-bearing activity.

Occasionally, the Claimant receives an injection in her right knee due to a

prior injury and has arthritis in both knees that pre-exists her fall on August 25,

2006.

After the Claimant's fall on August 25, 2006, she testified that some of the activities limited by her injury include working in the yard and going to yard sales.

Pain medication helped ease the pain and she continued her follow-up care with Dr.

Davis.

Claimant could not participate in physical therapy because of her heart condition.

The Claimant also was under the care of her primary care doctor, Dr. Kelly Evans.

Dr. Evans prescribed medication for depression, because the Claimant was aggravated with her limitations and her anxiety and depression was worsened after her fall on August 25, 2006.

The Claimant believes that her left leg injury caused problems with her right hip.

Dr. Davis told Claimant that her fracture had healed.

The swelling and bruising of the left leg is also gone, but the Claimant stated that she still has problems with it today.

However, the Claimant testified that she is still [*152] miserable because she cannot walk like she did prior to her fall.

The Claimant

cannot stand for more than five minutes; which limits her cooking and cleaning.

On cross-examination, the Claimant testified that she was not using a cane at the time she was walking into Gate 5 and her husband was not assisting her walk.

The Claimant accepted the ride in the golf cart due to the distance to the venue.

When the Claimant attempted to board the golf cart, other people were on the cart at the time, and she was attempting to take a seat facing away from the driver.

Just before the fall, the Claimant had her right foot on the cart and was attempting to pull herself up when the driver began to accelerate the cart.

The

Claimant does not recall hearing the driver say anything before accelerating.

The

acceleration caused the Claimant to fall backwards on her tailbone.

At this time she called out, "Oh, my leg."

Her left leg burned and popped at the same time.

After the fall, when the Claimant was seated in a chair, the Claimant's husband helped her onto a different cart.

She did not think that she was seriously injured at this time.

The Thompsons purchased their tickets.

However, during the concert, the Claimant's pain worsened and Mr. Thompson attempted to get a wheelchair.

However, they stayed for the entire concert because the Claimant testified that she had waited fifty years to see George Jones.

When the Claimant did attempt to stand up, she was unable to put weight on her left leg, so she was put onto a stretcher.

The emergency medical technicians helped get her into her own van and the Thompsons drove to the hospital.

The

hospital personnel did not tell the Claimant whether she had a fracture in her left [*153] leg.

The Claimant saw Dr. Davis on August 31, 2006, which was the first available date.

Currently, it is difficult for the Claimant to get one foot in front of the other and she experiences pain in her right hip and tailbone.

The Claimant now uses a wheelchair to vacuum.

At one time the Claimant's daughter lived with her, she no longer does and the Claimant's husband is now deceased.

Therefore, Shawnee

Alliance provides assistance to the Claimant in her home four days a week.

Prior to the events of August 25, 2006, the Claimant had previously experienced episodes of depression.

In early 2006 the Claimant was involved in a motor vehicle accident and bruised her left hip and left knee.

She was treated by the same doctors at that time.

The Claimant has also experienced vertigo after she suffered a heart attack, which required a change in the dosage of her medication.

Additionally, the Claimant also had a previous fall in May 2006, in which she injured her left hip, which required a cortisone shot.

During October 2009, the Claimant underwent surgery in Springfield, Illinois, to receive a different pacemaker.

At that time, the x-ray technician let the Claimant slip and fall and she fractured her right leg.

As a result, the Claimant was placed in a nursing home for two weeks and given a leg brace.

Currently, the Claimant does not suffer pain as a result of that injury.

On re-direct examination, the Claimant testified that prior to the August 25, 2006 fall, she did not have any problems with her left knee, and was able to get around.

Dr. Tom Davis testified, in summary, as follows:

[*154] Dr. Tom Davis, an orthopedic surgeon, testified at his evidentiary deposition that the Claimant suffered a depressed lateral tibial plateu fracture as well as advanced degenerative arthritis of her knee, aggravated by the fall.

The fracture did not require surgical treatment, according to Dr. Davis.

Instead, Dr. Davis

recommended that the Claimant remain non-weight bearing in a wheelchair with the leg elevated.

Dr. Kelly Evans testified, in summary, as follows:

Dr. Kelly Evans, M.D., also testified on behalf of the Claimant, as her family doctor, reciting the Claimant's medical history.

Dr. Evans deferred to Dr. Davis for treatment of Claimant's injuries at issue.

According to Dr. Evans, the Claimant's injuries sustained in this fall aggravated Claimant's arthritic condition, as well as her anxiety.

Exhibits 1 through 16 were admitted into evidence without objection, including the evidence depositions of Dr. Davis and Dr. Evans.

Thomas George testified, in summary, as follows:

The Respondent called Thomas George as a witness.

Mr. George testified

that on August 25, 2006 he was working at the State fairgrounds in Du Quoin as a

golf cart driver.

He would pick up passengers between 11 a.m. and 11 p.m.

He had

a valid driver's license and was otherwise qualified for the position with no

experience in transportation.

Prior to this job, Mr. George had never driven a golf

cart.

He was shown how to start, stop and operate the brakes on the golf cart, as

well as how to use the forward and reverse gears.

Applying the brake automatically [*155]

shut off the golf cart.

The golf cart was not equipped with a rearview mirror.

The

previous year, Mr. George drove a tractor and a tram at the fair.

On the date of the occurrence, Mr. George was driving a six-passenger golf cart, used to transport elderly and handicapped persons.

The golf cart had three rows to seat two persons.

The last row faced the rear.

The passengers were taken to wherever they wanted to go.

The golf cart did not have seat belts, but did have rails on the side.

Mr. George testified that he recalled that he was coming from the parking lot and had two passengers on board when he heard someone say they had two passengers for him, so he stopped and put on his brake which then locked.

Then, Mr. George asked if everyone was on board and someone replied "yes."

Mr. George

does not recall whether the response was from a man or a woman.

There was no rearview mirror and Mr. George did not turn around to make sure that everyone was seated.

Mr. George testified that when he started the golf cart, he believed that everyone was on board.

However, after beginning to accelerate, he heard someone call out, "stop," so he stopped, locked the brake, and got out of his golf cart.

Mr.

George saw the Claimant sitting on the ground.

A state trooper put her in a chair and she sat there for a few minutes.

Mr. George testified that he then helped her back on the golf cart and gave the Thompsons a ride to the venue.

Mr. George was facing forward at the time with many people in front of him heading to the concert.

He was not impaired at the time of his driving and recalls helping the Claimant onto the golf cart after she had fallen, and making sure they [*156] were all seated at that point.

Mr. George observed the Thompsons go up the steps and into the venue.

The Claimant did not complain to him about pain, and he did not observe any injuries.

On cross-examination, Mr. George testified that he was employed by the Respondent to drive the golf cart to transport people to the fair.

His golf cart was assigned to elderly and handicapped people.

When Mr. George stopped to pick up the Thompsons, he understood that they would occupy the two seats in the rear, which faced backwards.

Mr. George did not know whether or not the Thompsons were on the golf cart prior to the fall; nor how the Claimant fell.

However, Mr. George did testify that he remembered someone calling out "all aboard," before he began to accelerate, but he did not look for himself.

Next, someone yelled, "stop," so Mr. George stopped and went to the back of the golf cart, where he saw the Claimant sitting on the ground.

Surrounding the Claimant, was her husband, as well as Trooper Lewis, who were helping the Claimant onto a chair.

Mr. George testified that he waited and then the Thompsons re-boarded the cart and were driven to the concert.

Respondent's Exhibit 1 was offered and admitted into evidence without objection.

LEGAL ANALYSIS

There are three elements to recovery surrounding tort: (1) a legal duty by respondent to claimant; (2) a breach of that duty; and (3) damages proximately caused by the breach.

Ondes v. State, 43 Ill. Ct. Cl. 272, 275 (1991).

A legal duty exists when there is more than a possibility of occurrence and only when the harm [*157] is legally foreseeable.

Ma v. State, 45 Ill. Ct. Cl. 180, 187 (1993).

Furthermore, the claimant has the burden of proving by a preponderance of the evidence that respondent's employee was negligent by failing to use reasonable care, and that such negligence was the proximate cause of the claimant's injuries.

Evans v. State, 40 Ill. Ct. Cl. 140 (1988) (citing Brockman v. State, 31 Ill. Ct. Cl. 53 (1975)).

In the case before this Court, the Claimant has established by a preponderance of the evidence, that the Respondent's employee, Mr. George, failed to use reasonable care when he admittedly pulled the golf cart forward, without looking to see if the passengers were seated.

As the driver of the golf cart, Mr.

George was charged with the duty of exercising reasonable care; i.e., checking to see that all passengers were properly boarded.

It is foreseeable that a patron, such as the Claimant, could be injured if not fully on board when the golf cart began to accelerate.

Therefore, the injury was foreseeable.

The golf cart operated by Mr.

George was a relatively small vehicle.

Therefore, a turn of the head to look over his shoulder would have allowed the driver to determine whether all passengers were seated.

The driver's failure to ensure that all passengers were on board before accelerating was negligent.

This omission caused the Claimant physical injury.

Additionally, Trooper Lewis corroborated the Claimant's testimony that she fell when the golf cart accelerated as she was still boarding.

These testimonies, in addition to his written report, support the Claimant's Complaint.

The medical testimony also establishes that the Claimant suffered damages as a result of the Respondent's breach of its duty.

[*158] The expenses for the Claimant's medical care, diagnostics and treatment total were approximately $3,735.00, which were established by a preponderance of the evidence.

The additional amount of $7,470.00 is awarded for pain and suffering.

For the forgoing reasons, this Court finds in favor of the Claimant, MARYLIN THOMPSON and against the Respondent, in the sum of $11,205.00 (eleven thousand two hundred and five dollars).