Homer Rivera v. Illinois Department of Transportation

OPINION

[*219] Birnbaum, J.

Claimant, Homer Rivera (individually and as father and next friend of Paul Rivera), filed this two-count complaint sounding in negligence on June 21, 2004.

Claimant seeks damages for injuries that Paul suffered after being impaled on the left side of his neck by a broken wire chain link fence on property owned and maintained by the Illinois Department of Transportation (IDOT).

This injury occurred when Paul tripped onto said fence while jogging through the Cook County Forest Preserve (commonly known as LaBagh Woods) which runs along the Edens Expressway near Cicero Avenue and Foster Avenue in Chicago.

In Count I, Claimant asserts that IDOT negligently maintained the broken wire fence that was the proximate cause of Paul's injuries.

Claimant seeks $55,000 for pain and suffering, $27,000 for loss of normal life, and $3,000 for disfigurement for a total of $85,000.

In Count II, Claimant asserts that as the parent of the injured minor, he is entitled to $12,025.67 in compensation for medical damages under the Family Expense Statute, 750 ILCS 65/15.

FACTUAL BACKGROUND

This matter went to hearing on December 1, 2009, before a commissioner.

At that hearing, Paul Rivera testified that on June 21, 2003, he and four friends were jogging in the Cook County Forest Preserve.

Paul was 15 years old at the time and had been to the Preserve four times before.

Paul and his friends entered through the main entrance of the Preserve and proceeded to jog on one of the dirt paths going through the woods.

Paul testified there are similar dirt paths throughout the Preserve.

While none of these dirt paths are marked with signs designating them as [*220] trails, he was certain that they are trails meant for foot travel because they stand out from the surrounding ground packed with grass and other vegetation.

Paul further testified that he did not remember what time they started jogging, but he remembered the sun was still out.

He noted "everything was camouflaged" because despite the daylight, it was still hard to see things in the Preserve because it is so heavily wooded.

After about an hour of jogging on the trail, Paul and his friends were tired and wanted to go home.

Paul ran ahead to see if the trail led to an exit.

Paul further testified that the trail headed directly toward the Edens Expressway up to the top of a hill, then immediately curved away from the Expressway and ran parallel to it.

From the top of the hill, the Expressway was about 60 feet straight ahead.

Based on where the fence posts were, had the fence been up, it would have been a couple of feet in front of him.

Paul estimated that about eight feet of the fence was on the ground.

The portion he fell on was about a foot off the ground and covered the edge of where the trail began to curve.

He

described the fence as in very poor condition: it was very sharp and rusted with shrubs on it, "like nature grew right on it."

Paul's friends were about ten seconds behind him as he started running eight to ten feet upwards on the hill.

When he got to the top, he tripped over a large tree root and impaled himself in the neck when he landed on a broken chain link wire fence on the ground that was partially on the trail.

He could not see the root or the fence until he got to the top of the hill when it was already too late.

Soon after, one [*221] of Paul's friends tripped over the root as well.

He caught himself from falling, but still cut his arm against the fence.

When Paul landed on the broken wire fence, a sharp edge went through his neck causing a laceration that was approximately five centimeters deep and three inches long.

He was bleeding a lot and his friends eventually flagged down a law enforcement officer, and he was taken to a hospital by ambulance.

He recalled that it was still daylight when he was transported in the ambulance.

At the hospital, he was x-rayed for fractures and received six stitches for the laceration on the left side of his neck.

An angiogram revealed that there was no vascular damage, but Paul testified that the procedure was very painful, stating that the doctors had to cut his leg open and insert a camera into his artery.

Because of this procedure, he was not supposed to bend his knee for a while so his leg was placed in a brace for a couple of days.

Paul had a follow-up doctor's visit three weeks later to receive a tetanus shot, then a second visit to have the stitches removed.

He has a permanent scar on the left side of his neck that is two inches long and approximately half an inch wide.

The pain associated with the angiogram incision lasted for about the first two weeks, but the tight, throbbing pain in his neck lasted a little over a month and prevented him from being able to move his head very much.

During this monthlong period, Paul mostly rested in bed and was unable to perform normal, everyday functions like dressing himself, bending over, or picking things up due to the pain.

He also had trouble sleeping well.

[*222] During the following five month period, Paul slowly got better and stronger.

He was getting used to the discomfort and pain and was able to start performing some of the normal everyday functions.

He still had constant pain in his neck and the scar was very sensitive.

Over the subsequent six months, the pain in his neck became less constant.

About a year after the injury, he was able to perform everyday functions without pain.

At the time of his testimony, approximately five years after the injury, Paul still suffered some discomfort and pain when participating in certain extracurricular activities such as weightlifting, an activity he enjoys and had just started getting into before his injury.

He is unable to challenge himself the way he would like.

When he lifts weights over his head he sometimes gets a shooting pain from his neck that will make his arm drop.

This shooting pain caused him to give up break dancing altogether because the neck pain rendered him unable to support himself with his left arm.

Paul further testified that sometimes he gets spasms where the scar is when he looks peripherally.

The scar is no longer sensitive but it occasionally causes him discomfort when it is touched or when he stretches.

This slight, occasional sensitivity has caused him to play football much less because he is afraid of getting touched on the neck, though the appearance of the scar does not bother him.

Sharon Watson, IDOT Litigation Supervisor, testified that she was not familiar with the area in question and had no personal knowledge about when/if the broken fence in question had last been repaired.

The fence was installed over fifty years ago, but IDOT had no record of it.

The parties stipulated that Watson's [*223] testimony regarding notice was that IDOT had no actual notice of the broken fence prior to Claimant's incident.

John English, Resident Technician of the IDOT Bureau of Maintenance since April of 2004 and a 26 ½ year IDOT veteran, testified that he is responsible for making sure the access control fences in his district, which includes the location in question, are in good repair.

His duties include driving daily on state roadways and inspecting the fences for damage.

Most of these daily inspections are conducted from inside his vehicle.

Out-of-vehicle inspections usually occur only if the Bureau sends him to a particular location pursuant to a complaint or police report.

English

testified that part of the inspection process is dependent on citizen complaints and police reports because the Bureau is short-staffed and there are nearly 1,000 miles of road to cover.

English further testified that he knew of no complaints being filed regarding the fence in question prior to June 20, 2003.

The first complaint about the fence in question that he was aware of was on February 18, 2007.

He inspected the area on February 19, 2007, and noted the area surrounding the fence in question had "heavy brush and vegetation."

He estimated that the fence was about 120 to 150 feet from the Edens Expressway, and though part of the fence was visible, no defects were visible from that distance, even when he stepped out of his vehicle.

Due to the dense vegetation, English had to go through the Forest Preserve entrance to inspect the fence.

He noted that on his way to the fence, there was thick vegetation and growth, stating, "the overgrowth was so thick, it was - it couldn't be [*224] described as anything else than a wooded area."

He also testified that he did not see any type of trail leading to the fence.

Henry Torchalski, IDOT Engineer Technician 5, testified that on June 20, 2003, he was working with the Edens Expressway Yard and had been in that assignment for about a year.

His duties included finding deficiencies in maintaining the roadway and the area twenty to sixty feet beside it.

He clarified that he is not an inspector, but if he or his crew noticed anything wrong with the fence in question, they would have notified the appropriate personnel.

He testified that prior to June 20, 2003, neither he nor any of his crew reported any defects about the fence in question.

This Court heard oral arguments from both parties and each side submitted post oral argument briefs.

LEGAL ANALYSIS

To state a cause of action sounding in negligence, a claimant must assert facts establishing the following:

the existence of a duty that respondent owed him; that respondent breached that duty; and that the breach proximately caused the claimant's damages.

Estate of Johnson by Johnson v. Condell Memorial Hospital, 119 Ill.2d 496, 520 N.E.2d 37 (Ill. 1988).

Generally, one owes a duty of ordinary care to guard against injuries to others that may result as a reasonably probable and foreseeable consequence of negligent conduct.

Karas v. Strevell, 369 Ill.App.3d 884, 860 N.E.2d 1163 (2nd Dist., 2006).

As part of this duty, the State must protect others from dangerous conditions on its premises.

Van Der Heyden v. State, 48 Ill. Ct. Cl.

341 (1996); Wilson v. State, 41 Ill. Ct. Cl. 50 (1989).

However, the State is not an [*225] insurer of the safety of all persons who visit its facilities.

Bahl v. State, 49 Ill. Ct. Cl.

120 (1997).

Claimant must also establish that the State had either actual or constructive notice of an alleged defect or dangerous condition before recovery is allowed.

Dunbar v. State, 45 Ill. Ct. Cl. 175 (1992).

In its post oral argument brief, Respondent raises the argument that it "owes no duty of care to maintain its right-of-ways for the use of unintended and unforeseeable users," citing numerous cases regarding the duty owed to pedestrians while on roadways.

However, those cases are factually distinguishable from this case and therefore inapposite.

Specifically, Paul Rivera was not a pedestrian on a roadway; rather, he was running on a jogging path and fell on a fence that was not properly maintained by IDOT.

As Claimant points out in his post oral argument brief, "[t]he fence was installed by IDOT to separate and prevent people and animals from coming onto the expressway."

As such, it is foreseeable that injury would occur if the fence was in disrepair.

Notice

Respondent does not contest that the broken wire fence constituted a dangerous condition.

Rather, Respondent argues that it did not have notice of the condition and that the condition was not the proximate cause of Paul Rivera's injuries.

We first address the issue of notice.

There are two types of notice, actual and constructive.

Watson, English and Torchalski all testified that Respondent had no actual notice about the condition of the fence prior to the incident.

We next turn to constructive notice.

The two general methods for proving constructive notice of a defect are the length of time that the defect existed and/or [*226] the defect being so obvious that constructive notice should be imputed by the nature of the condition itself.

Alsobrook v. State, 48 Ill. Ct. Cl. 205 (1995); King v.

State, 54 Ill. Ct. Cl. 305 (2001).

However, the State is not an insurer of the safety of all persons travelling on its property.

Bahl, supra.

Accordingly, the State is not required to undertake extraordinarily burdensome inspections or maintain its property in such condition that patrons may wander at will over each and every portion thereof.

Lyons v. State, 39 Ill. Ct. Cl. 192 (1987); Pulizanno v. State, 22 Ill. Ct.

Cl. 234 (1956).

Here, Paul Rivera described the condition of the fence as very poor.

It was very sharp and rusted, with shrubbery growing through it.

Respondent did not offer any evidence to dispute this characterization.

Respondent contends that because the fence is subjected to harsh outdoor elements, its condition does not necessarily mean that it had been that way for a long time.

We disagree.

Fences are made to withstand the elements of nature over time, otherwise they would have to be replaced often.

Rust aside, the growth of vegetation indicates that the fence was in this condition for a considerable period of time.

Further, there is no indication that the area where the fence was in disrepair was a restricted area; to the contrary, it was part of a path available to pedestrians.

Also, the damaged portion of the fence protruded onto the path.

Combined with the fact that the fence had been in disrepair for a long period of time, it is not unreasonable to expect Respondent to have noticed it.

This does not amount to burdensome inspections as in cases referenced above.

Here, the State is charged with maintaining a fence in an area where there are paths for pedestrian traffic.

[*227] While the stretch of fence is long, it is a finite area along the highway where the fence runs.

Proper maintenance of the fencing in this area is a reasonable expectation considering the Edens Expressway is a short distant beyond where the fence should have been erected, adding another element to the dangerous condition that existed.

Accordingly, we find that the dangerous condition existed for a sufficient period of time and that the nature of the condition itself was so obvious as to impute constructive notice to the State.

Proximate cause

We now consider whether the dangerous condition was the proximate cause

of Paul Rivera's injuries.

Respondent contends that Claimant has failed to establish

that the fence was the proximate cause of the injury Paul sustained since he fell on

the fence after tripping on a root on IDOT property.

"Proximate cause is any cause which, in natural or probable sequence, produced the injury complained of.

It need not be the only cause or the last cause or the nearest cause.

It is sufficient if it concurs with some other cause acting at the same time, which, in combination with it, causes the injury.

(Definition adopted by Court from Illinois Pattern Jury Instructions.)"

Harry W. Kuhn Redi-Mix Concrete v.

State, 45 Ill. Ct. Cl. 33 (1993).

The term "proximate cause" encompasses two distinct requirements, "cause in fact" and "legal cause."

Lee v. Chicago Transit Authority, 152 Ill.2d 432, 605 N.E.2d 493 (Ill. 1992).

A defendant's conduct will be considered the "cause in fact" of an injury if it was a material element or substantial factor in bringing about the injury; but for the [*228] negligent conduct, the injury would not have occurred.

Abrams v. City of Chicago, 211 Ill.2d 251, 811 N.E.2d 670 (Ill. 2004).

In the case sub judice, if the fence had been properly maintained, Paul would not have been impaled after tripping on the tree root.

Thus, Respondent's negligence was a cause in fact of the injury sustained.

The second requirement, "legal cause" is established only if the defendant's conduct is "so closely tied to the plaintiff's injury that he should be held legally responsible for it."

Simmons v. Green, 198 Ill.2d 541, 762 N.E.2d 720 (Ill. 2002).

The

proper inquiry regarding legal cause involves an assessment of foreseeability, in which we ask whether the injury is of a type that a reasonable person would see as a likely result of his conduct.

Young v. Bryco Arms, 213 Ill.2d 433, 821 N.E.2d 1078 (Ill.

2004).

Respondent argues that the fence was not the legal cause of Paul's injury because the fence is an "occasion" and not a cause, citing Thompson v. County of Cook, 154 Ill.2d 374, 609 N.E.2d 290 (Ill. 1993).

However, Thompson indicates the exact opposite, citing Briske v. Village of Burnham, 379 Ill. 193, 39 N.E.2d 976 (Ill.

1942):

"[t]he cause of an injury is that which actually produces it, while the occasion is that which provides an opportunity for causal agencies to act."

Here, the damaged fence is what actually produced the injury, i.e., the laceration to Paul's neck.

The tree root provided the "occasion" which lead to the jagged fence on the ground which caused the injury.

In any event, foreseeability is the relevant question regarding legal cause.

We must ask if it is foreseeable that someone could get injured on the broken fence.

It is obvious that the fence's jagged condition and sharp protruding edges rendered [*229] it dangerous.

The relevant issue is whether it is foreseeable that someone would come into contact with it.

The fence, in its damaged condition, had fallen onto the trail.

Even though Respondent notes that the paths were not marked as trails and were not paved, we are satisfied that these dirt paths were used as trails.

While Respondent now contends that photos taken four years after the incident establish that there were no jogging trails in the Forest Preserve, we reject this argument and find that Claimant established that there was a trail used as a jogging path and Paul was injured while running on same.

As set forth above, there is no evidence that visitors were prohibited from using them as trails or from the area in question.

In fact, the very purpose of the fence was to prevent people from walking out onto the Edens Expressway; thus, it was foreseeable, even anticipated, that there would be pedestrian traffic in that area.

Accordingly, Respondent's argument regarding proximate cause fails.

Comparative Fault

Respondent argues in the alternative that its negligence was not the sole proximate cause because Claimant's negligence also contributed to his damages.

Respondent's liability is limited by the extent to which Claimant's failure to exercise reasonable care in providing for his own safety contributed to his injuries.

Illinois

follows a partial comparative negligence scheme:

a plaintiff is barred from recovery if his contributory fault accounts for more than 50 percent of the proximate cause of his damages, but if his contributory fault accounts for 50 percent or less, recovery is [*230] diminished proportionate to plaintiffs contributory fault.

See Karas v. Strevell, supra; 735 ILCS 5/2-1116.

Respondent contends that Paul Rivera did not exercise reasonable care in providing for his own safety and thus contributed to his injuries.

This

apportionment of fault exceeds 50 percent, thus rendering Respondent not liable, or at a minimum, any award given should be reduced by the percentage of fault attributable to his negligence.

For Respondent's argument to have merit, there must be a link between a negligent act by Claimant and his damages.

Here, Paul Rivera's injuries occurred because of the dangerous condition of the fence.

However, he came into contact with that dangerous condition after tripping over a tree root.

Thus, if Paul's tripping over the tree root was due to negligence on his own part, he is liable for the portion attributable to his comparative negligence.

Respondent infers that the area where Paul tripped and fell was not part of the dirt path and that he veered off the path when he ran up the hill.

However, Paul

testified that he followed the path up the hill and the broken fence was "partially on the trail on the edge like where the curve is."

Nenad Gusa also testified that he was with Paul the day that he was injured and that they stayed on the dirt path.

Gusa

specifically testified after inquiry from the commissioner at the hearing that the path led up the hill which is why they followed it.

There is no evidence in the record indicating that this area was not part of the dirt path.

On the other hand, given the uneven terrain characteristic of a wooded area, the fact that Paul admitted it was hard to see things in the Preserve even when the [*231] sun was out because it is a heavily wooded area, and the fact that he could not see what was at the top of the hill but ran up it anyway, it would be foreseeable to a reasonable person that he could trip and that, accordingly, he should use caution.

Thus, we find that Paul was also negligent, and that his conduct more likely than not contributed to his injuries in that it exposed him to Respondent's dangerous condition.

However, Paul's share of fault is not more that 50%.

His negligence did set in motion the chain of events leading to his damages, but if Respondent had properly maintained the fence, Paul would not have been injured.

Thus, we find that Paul's apportionment of fault is 50% and Respondent is liable for 50% of his damages.

Claimant is entitled to recover medical expenses under the Family Expenses Statute.

Respondent does not contest the amount in medical damages, which is $12,025.67.

We now turn to non-economic damages.

For one month, Paul was almost bed-ridden due to pain.

For at least six months, Paul was in constant pain and barely able to perform everyday functions.

For another six months, his condition improved, but he still had intermittent throbbing neck pain.

Paul has a permanent scar on his neck which is two inches by half an inch wide.

While the appearance does not bother him, it still spasms.

Even five years after the injury, Paul, who was active before his injury and still tries to be now, cannot fully perform in certain sports like weight lifting or football because of occasional shooting neck pain or the anxiety associated with it.

This same occasional pain has caused him to give up break dancing entirely.

[*232] Respondent argues that, if anything, Claimant should receive $10,000 for pain and suffering and loss of normal life.

Claimant argues that he should receive $55,000 for pain and suffering, $27,000 for loss of normal life, and $3,000 for disfigurement.

We find that Claimant has established that he is entitled to $15,000 for pain and suffering and $15,000 for loss of normal life, and $1,000 for disfigurement, for a total of $31,000.

IT IS HEREBY ORDERED that Respondent compensate Claimant 50% of $43,025.67 or $21,512.84.