Matthew Shober v. Board of Trustees of Eastern Illinois University

OPINION

Sprague, J.

These claims, brought separately, arise as a result of Claimant being injured while slipping on water and falling in the stairwell of Claimant’s dormitory at Respondent University on October 21, 1999, and said injury allegedly being aggravated while participating as a student player for Respondent University’s football team in a football game held on October 23, 1999.

Claimant alleges that Respondent University was negligent in maintaining the dormitory stairwell as to prevent injury to Claimant and further alleges that Respondent University was negligent in allowing Claimant to play football for Respondent University’s football team while injured, causing further injury to Claimant.

Respondent University denies that it was negligent in either maintaining the dormitory stairwell, in that Respondent had no notice of the dangerous condition being present causing injury to Claimant, or allowing Claimant to play football, which allegedly aggravated Claimant’s injury.

[*112] FACTUAL BACKGROUND

Due to the nature of circumstances involved in the two separate and distinct claims Claimant has against Respondent University, the facts are so intermingled that a thorough and extensive recitation of the facts is necessary.

In October of 1999, the Claimant, Matthew Shober, was a 19-year-old sophomore at Eastern Illinois University (“EIU”) in Charleston, Illinois.

The Claimant had received a fouryear, full-ride scholarship to play football at EIU that included tuition as well as room and board.

The Claimant was an offensive lineman on the EIU varsity football team.

At six feet five inches tall, the Claimant’s weight fluctuated in the 340 pound range during college.

The Claimant lived on the basement or ground level of Douglass Hall, a University housing dormitory at EIU.

Approximately 30 students lived on the floor.

The Claimant’s floor had two separate bathrooms with showers: one just down from the Claimant’s dorm room, and another on the opposite side of the floor.

On October 21, 1999, the shower room nearest the Claimant’s room was closed, apparently for renovations or repairs

with the shower room nearest his dorm room closed, the Claimant went down to the other shower on his floor, which was open.

However, someone else was using that shower at the time so that Claimant then went upstairs to use the first-floor shower room, which had three showers.

The Claimant took a shower and, after gathering up his shower items, he headed back downstairs.

At the time, Claimant was wearing a t-shirt, shorts, and rubber sandals.

When his foot hit the stairwell landing between the ground floor and first level, the Claimant contends he slipped and fell.

The Claimant says his foot slipped out from under him, and he landed with his back hitting the edge of one of the stairs.

The Claimant says he also hit his head on the banister.

The Claimant testified that there was water on the landing at the time of his fall.

The

Claimant testified that he did not observe any water as he went up the stairs to go take his shower and, to his knowledge, there was no water on the landing when he went up the stairs.

The Claimant also testified that, before he fell, he did not see any water on the floor.

The Claimant testified that the first time he knew or had an indication there was water there was after he slipped.

The Claimant testified that he had no idea when the water got there and that he did not know of anybody else complaining of water being in the stairwell or on the stair on October 21.

There was no evidence presented as to how the water came to be on the landing.

At the time of the Claimant’s accident, the stairwell was well-lit and the Claimant had no obstructions in seeing the floor.

There was a handrail in the stairwell that the Claimant held onto while going down the stairs.

The stair treads had rubberized grip material on them, and the landing was commercial tile.

After the stairwell fall, the Claimant felt pain in his low middle back where his back contacted the stairs.

After getting up from the floor, the pain went from his back to his buttocks area on the right side.

The Claimant, at trial, described the pain from his dormitory slip and fall as “…right there in the middle of the low back and then the pain going down the leg,” and “it went down to the butt areas as far as the leg.”

The Claimant’s stairwell fall occurred between 8 a.m. and 8:30 a.m.

The Claimant

then went to his class or classes, and afterward went to the athletic training office at the EIU football stadium, which would have been around 1 p.m.

The Claimant did not make a doctor’s appointment that day; the only care he sought was at the EIU training office.

[*113] The Claimant told Rob Doyle that he had slipped and fallen in the stairway.

Now

retired, in October 1999 Doyle was a licensed athletic trainer with a master’s degree in physical education with an emphasis in athletic training, and a Ph.D. in health education.

Doyle served as the athletic trainer assigned to EIU football.

Doyle was a member of the EIU football team medical staff, which also included Dr. Richard Larson, the team physician; Dr. Karl Rudert, an orthopedic surgeon who volunteered his time and services for the EIU football program; and about a dozen student athletic trainers.

Doyle had also taught in the athletic training curriculum when he was director of EIU’s athletic training program.

Doyle provided different treatments to the Claimant, such as electrical stimulation, or “stim,” and ultra sound treatments.

The Claimant responded positively to treatment, and expressed that he felt better after the treatment.

The Claimant participated in football practice on that day, Thursday, October 21.

That same day the Claimant called and left a message on his parents’ answering machine saying that he had fallen on the stairs and reinjured his back.

In his message, the Claimant asked his father, Joseph Shober, to contact Dr. Rudert and see if the Claimant could get a prescription for some medication called into the pharmacy where his father worked as the manager.

Later in the evening when Claimant eventually spoke to his father, Claimant asked his father if he could start taking the same medication that he had been prescribed by Dr. Rudert at an EIU clinic following the Claimant’s injury before the October 2, 1999 football game.

Joe Shober testified that he told his son that he “…wasn’t sure if that’s what the doctor would want him to do…” and that he would get a hold of the doctor.

The Claimant

did not speak to his father again before the football game on Saturday, October 23.

Joe Shober testified that he called Dr. Rudert on the morning of Friday, October 22, 1999, and spoke to Dr. Rudert’s nurse.

Joe Shober testified that he told the nurse that his son had slipped and fallen, re-injuring his back, and asked if they could get the prescription refilled for the same medication that Claimant had taken before.

Joe Shober was able to get the prescription refilled for his son but did not actually talk to Dr. Rudert that day.

Dr. Rudert testified that he did not talk to the Claimant or the Claimant’s father.

Dr. Rudert

also did not recall expressing an opinion on October 22, 1999, to his nurse who conveyed that opinion to the Claimant’s father whether the Claimant should have played in the football game on Saturday, October 23.

Dr. Rudert further testified that he did not recall restricting the Claimant from playing football prior to October 23, 1999.

Joe Shober testified that he called Rob Doyle after talking to the nurse at Dr. Rudert’s office and, although he did not talk to Doyle at that time, he ended up leaving a message that he had gotten a hold of Dr. Rudert’s office, that they had reissued the prescription that the Claimant had been taking before, and that Claimant was not to play in the game on Saturday.

Joe Shober testified that Doyle called him back within an hour to an hour and a half.

Doyle vaguely recalled having a phone conversation with Joe Shober on October 22, 1999, although Doyle had never previously spoken to Joe Shober.

Joe Shober conveyed to Doyle that Dr. Rudert did not want the Claimant to play in the October 23 game.

According to Joe Shober, Doyle had been doing several treatments with the Claimant, such as electrical stimulus on his muscles, and he was responding well.

Doyle conveyed that the decision whether to play could be made on game day, as the treatments seemed to be helping Claimant.

According to Doyle, it was common to delay such decisions to game day.

[*114] There was contradictory testimony as to whether Doyle told Joe Shober that he had called and spoken to Dr. Rudert’s office, and that Dr. Rudert had cleared the Claimant to play in the football game on Saturday.

Doyle testified he did not recall any conversation in which Dr. Rudert told him that the Claimant was restricted from playing or cleared to play in the October 23 game.

Doyle’s only awareness that Dr. Rudert had restricted Claimant from playing in the October 23 football game was based solely upon Doyle’s single telephone conversation with Joe Shober on October 22.

Doyle further did not recall talking to Dr. Rudert after Joe Shober’s call, but did recall talking to Dr. Larson about delaying the decision whether the Claimant could play in the October 23 football game until game day.

Doyle testified that it would have been uncommon for him to learn about a player’s restriction in a game based upon a doctor’s determination by way of a parent and Doyle did not recall it ever happening before.

EIU Offensive Coordinator Roy Wittke also testified that he had never experienced a decision being made for a player not to play based upon a doctor’s restriction communicated solely by way of a parent of the player.

Mark

Bonnstetter, who assigned himself to football after being hired as EIU’s Head Athletic Trainer in 2000, testified that he did not think it had ever happened to him either.

The

common way for Bonnstetter to hear that a doctor is restricting a player is directly from the doctor and not even from the doctor’s staff.

Bonnstetter testified that he never before had a situation where a player’s parent went around him to get medical care or diagnosis.

Claimant participated in a “walk-through” practice on Friday, October 22, 1999.

The

walk-through practice was a minimal contact practice with no hitting.

During Friday walkthrough practices, players just wear shorts, t-shirts, and helmets, watch game film, go through their game plan out on the field for half an hour or forty five minutes and walk through some plays that might be used during Saturday’s game.

On that Friday Claimant received his assignments for Saturday’s game and, although Claimant participated in the walk-through practice, he stopped practice early and went into the training office, where Doyle provided back treatments as he did the day before.

At no time during that practice did the Claimant tell the coaching staff that he was not going to play in the next day’s game.

After speaking with Claimant on the evening of October 21 after falling in the dorm stairwell, Joe Shober did not see or speak to his son until after the October 23 football game and was therefore unable to tell him about Dr. Rudert’s alleged restriction prior to the October 23 game.

Before the game, Claimant knew that his father had contracted Dr. Rudert, and that it was alright for him to take the medication, but it did not explain at trial why he only received that portion of his father’s message and not the portion concerning his restriction from the October 23 game.

On October 23, 1999, the EIU football team played Tennessee Tech at home in Charleston, Illinois.

On game day, the EIU training room is opened two or three hours before kickoff for treatments, for getting players taped up, and for getting them dressed.

The team physician, Dr. Larson, would attend all EIU homes games, arriving 15 minutes to half an hour before the game.

Dr. Larson would see players at that time or sit in the training room while players were getting taped and ready to play.

Dr. Rudert would often attend home games as well, but often would not arrive until after kickoff.

Doyle would attend the games, as would about a dozen student athletic trainers.

The athletic trainers work under the supervision of medical doctors and on October 23, 1999, Doyle was working under the supervision of Dr. Larson, who was in attendance that day.

[*115] An hour before kickoff, the offensive and defensive lines go out for their warmups, run through their various drills and bang against each other.

The players come in prior to kickoff for taping and adjustments, then the coaches have one last meeting and the teams go out onto the field a couple of minutes prior to kickoff.

Virtually all of the players on the team would be seen in the training room prior to the game for either taping or treatment.

Doyle typically would speak to Dr. Larson about the conditions of the players that day.

When Doyle was aware of an injury that might stop a player from participating in an upcoming game but one from which he might recover and be able to play, Doyle’s normal practice as an EIU athletic trainer was to confer with a team physician.

Doyle most often would confer with Dr. Larson, who was at all games, unlike Dr. Rudert.

It was Doyle’s normal practice to consult Dr. Larson when Doyle was aware of discussions about restricting an injured player from playing in a game and the decision whether he could play had been delayed until game day.

Doyle testified that he believes he spoke with Dr. Larson about whether the Claimant could play in the October 23 game and that as team physician, Dr. Larson was the final decision maker.

After the team meal but before the game, the Claimant went to the training office and saw Doyle again.

Along with Doyle, Dr. Larson would have been in the training room prior to the game as well.

Doyle again provided Claimant stim treatment.

Doyle was sure that on October 23, he spoke with the Claimant about whether he was hurt because the Claimant got dressed, went out, and apparently felt well enough to go through pre-game drills.

The Claimant suited up for the game and was set to play and, while he slipped and fell and had some discomfort, treatment was positive and the Claimant was feeling better.

Consequently, Doyle did not want to exclude the Claimant from playing in the October 23 game until game day.

According to Doyle, prior to kickoff, and after he had successfully gone through pre-game warm-ups, Claimant saw Dr. Larson.

Doyle understood that the Claimant said he was capable of playing and believed that Dr. Larson said that the Claimant could play in the game.

Prior to the October 23 game, the Claimant did not indicate to Doyle at any time that he did not want to play, could not play or that he was too injured to play in the football game.

Further, Claimant testified that no one told him that he had to play and that no one pressured him to play in the October 23 game.

During the game between EIU and Tennessee Tech on October 23, Claimant played on all 69 offensive plays of the entire game.

At trial, the Claimant testified that he suffered pain during the October 23 game and that as the game went on, the pain went farther down his leg to the point that by the end of the game it was to his big toe.

Claimant felt pain when his foot hit the ground, when jogging or when coming out of a stance.

Claimant testified that each time he came off the field during the game, student trainers asked him how his back was, and the claimant told them how it was.

Doyle testified that Claimant never told him during the game that he could no longer play and did not observe anything during the game that indicated to him that the Claimant was injured in such a way that he should not be playing any further.

Coach Roy Wittke, the EIU offensive coordinator, had no recollection of seeing the Claimant suffer an injury during the game.

According to Claimant, he never told an athletic trainer at EIU that he was hurt and couldn’t play, but was told by a trainer or coach to play anyway.

In fact, EIU coaches had previously restricted Claimant from playing earlier in the month, against his wishes, after the Claimant’s lower back injury on October 2, 1999. Coach [*116] Wittke did not want Claimant to play in the October 9, 1999 game.

The Claimant however, felt that he could play, and Dr. P. Sam Saravanan, a Shober family doctor, wrote a note releasing the Claimant to play football for that game.

Nonetheless, the coaches did not want the Claimant to play on October 9 and felt that it was in his best interest not to.

Claimant acknowledged that as a football player, he has an obligation to tell his coaches about any injury, and report to the athletic trainer but, nonetheless, did not tell Doyle about any complaints of radiating pain down his lower extremities until after the game.

After the game, Claimant went over and spoke to his father, Joe Shober, and it was only then that Joe Shober first learned that the Claimant was having problems.

Roy Wittke, the EIU offensive coordinator who has coached at the University of Arkansas and Arizona State University and coached players who moved on to the National Football League, or NFL, testified that different position groups such as quarterbacks, wide receivers, and offensive lineman have different cultures or mentalities and Doyle concurred.

Coach Wittke testified that the offensive lineman position group, of which Claimant was a part, is unique in that “they’re the only position group that initiates a collision on every single play in a ball game, every single offensive play.”

Because an offensive lineman hits somebody on every play, they are banged up and bruised from the first week of football camp until a week or so after football season.

It is a daily occurrence for EIU football players to play with pain and offensive lineman commonly play through pain and injuries.

Coach Wittke testified that, compared to other football players, offensive lineman are a more physical group and a mentally tougher group.

According to Doyle, offensive lineman play with injuries all year long and “the offensive and defensive line, they try to position themselves or think of themselves as the meanest, baddest people on the field and the toughest.”

The tight-knit quality of the offensive lineman position group has an impact on whether they play through injuries or not and, compared to other football players, offensive lineman are less likely to complain about injuries they have received in a game.

“I think they… are more prone to wanting to stay on the field for the good of the group, not letting their teammate down,” Wittke testified.

Doyle testified that this culture or mentality factors into the evaluation of lineman’s injuries and their ability to play with their injuries in that it is their culture that they are tough and they put a lot of pressure on themselves to play.

Doyle testified that it was very common for players to want to play even though they were injured and Dr. Rudert testified that athletes often either minimize their pain or outright do not tell you about the pain because they want to play.

According

to Doyle, often times players did not tell him they were hurt or they would minimize their injury.

In Doyle’s experience, offensive lineman have played with injuries they have not disclosed to him.

As an EIU team physician, Dr. Rudert treated the Claimant and In Dr. Rudert’s opinion, the Claimant minimized his pain.

Dr. Rudert testified that “pulling information out of him was like pulling teeth, so getting accurate information was tough out of him.”

During his time at EIU, Coach Wittke has been unaware of any pressure for injured players to play in a game who are so injured that they would otherwise be sat down, or not allowed to play.

To the contrary, Coach Wittke testified that it is a common occurrence to see injured players try to convince medical staff that they’re wrong in trying to restrict them from playing and that they should allow them to play.

It is a certainty that Claimant suffered an injury.

According to an MRI taken after the October 23 game, the Claimant had disk bulges and disk herniation.

Dr. Margret

[*117] MacGregor, a surgeon, subsequently diagnosed the Claimant as having a left lumbar radiculopathy with lumber herniated disk and performed surgery on the Claimant in May 2000 at St. John’ Hospital in Springfield.

Claimant, however, had a history of back injuries before Dr. Rudert and Dr. MacGregor diagnosed him after the October 21 fail in the dorm stairway and the October 23 football game:

• Claimant had a lower back injury during his junior year of high school.

• Claimant hurt his back during football practice in September 1998, in which he was

treated in the emergency room for an injury to his upper low back.

• Of significant note, Claimant injured his lower back on October 2, 1999, during pre

game blocking drills or warm-ups prior to the October 2 game, and Claimant did not

ask to come out during the game. The coaches expressed concern about his back pain

and a decision was made jointly with the coaching staff to take him out of the game.

• On October 13, 1999, Claimant complained about his lower back at an EIU clinic. In

a form reporting the clinic visit, an evaluation stated that the Claimant had “pain in

low back when he is sitting” and “no disk space @ L-5-S-1.” In his diagnosis, Dr.

Karl Rudert stated that the Claimant “may have degenerative disk but no symptoms

that indicate.”

Dr. Rudert testified that, if the Claimant played an entire game on October 16, 1999, he might have had a disk herniation that simply was not symptomatic.

Neither Dr. Rudert nor Dr. MacGregor could squarely give an opinion within a reasonable degree of medical certainty how much of the Claimant’s injury could be attributable to the October 21 dorm stairway fall and how much to the October 23 varsity football game.

Dr. Rudert testified that he could not differentiate between the fall, the football game, and the prior pre-game drills incident as to when the Claimant suffered the herniation injury.

Dr. Rudert could not give an opinion “[b]ecause I don’t know which, each injury, how much damage was done to the disk or how much pain.”

Dr. MacGregor initially opined that the Claimant herniated his disks on October 21 and aggravated this disk injury by playing in the October 23 game.

Dr. MacGregor based these opinions upon the history provided to her by the Claimant.

However, after being presented additional information about the Claimant’s back injuries prior to October 21, Dr. MacGregor abandoned these initial opinions.

The Claimant did not have an MRI after the October 21, Dr. MacGregor abandoned these initial opinions.

To form an opinion of whether playing in the October 23 game caused further aggravation of Claimant’s injury, Dr. MacGregor testified that there would have needed to be intervening MRI’s.

Dr. MacGregor ultimately testified that she could not be confident when the Claimant herniated his disks and that she had no opinion as to when the Claimant herniated the disks in his back and had no opinion whether playing in the October 23 game aggravated the Claimant’s condition.

Mark Bonnstetter, who became EIU’s Head Athletic Trainer in 2000, testified that it was his opinion, within the reasonable degree of certainty that an athletic trainer can have, that if the Claimant had not played in the October 23 game, he still would have needed microdiskectomy surgery.

Bonnstetter testified that, as an athletic trainer, radicular pain was not a reason for alarm just a reason to follow-up a little closer.

In testifying within a reasonable degree of certainty as an athletic trainer, Bonnstetter explained that the fact [*118] that Claimant might have been experiencing paresthesia or radicular pain during the October 23 game did not necessarily mean it arose from an injury incurred in that game.

Bonnstetter testified that the Claimant might well have been feeling symptoms from something that happened two days earlier.

The pain the Claimant contends he felt by the end of October 23 game could have been caused by the October 21 injury but not felt until the game.

Claimant acknowledged and agreed that football is a violent game and injuries happen in collegiate games.

The Claimant also admitted that no one said he had to play in the October 23 game and that no one even pressured him to play in the game.

After Claimant’s back surgery, both Dr. MacGregor and Dr. Rudert strongly recommended that claimant not return to playing football now or in the future due to a significant risk of re-injury and further problems.

Nonetheless, disregarding those recommendations, Claimant attempted to return to playing collegiate football in the fall of 2000.

Subsequent to his college football days, Claimant began volunteering as a firefighter for the Lincoln Fire Protection District in 2001, and he continued to do so at the time of the hearing.

Dr. MacGregor wrote the Claimant a letter clearing him to participate as a firefighter, the Claimant has participated in training exercises, carried hoses, climbed ladders, and responded to fires in 30 pounds of firefighter gear and the Claimant testified that he has been able to successfully fulfill his duties as a volunteer firefighter.

At the time of the hearing Claimant worked as a paramedic for two employers. As a paramedic, the Claimant sometimes is required to lift or otherwise exert force to get a patient out of a situation - a car crash, a bed, off the floor or toilet, etc. and the Claimant testified that he is able to perform his duties fully as a paramedic.

ISSUES

The first issue before the Court is whether Respondent University was negligent in maintaining the dormitory stairwell in such a condition as to allow water to accumulate on the stairway landing, causing Claimant to slip and fall in said stairwell, resulting in injury to Claimant.

The second issue before the Court is whether Respondent University was negligent in allowing Claimant to play in an intercollegiate football game that resulted in injury to, and aggravation of, a pre-existing injury to Claimant.

ANALYSIS

Although the facts of these claims are intermingled and the hearing in this matter dealt with both of the Claimant’s claims - the incident occurring in the stairwell of Claimant’s dorm on October 21, 1999 (No. 01-CC-3111) and the injury allegedly received by Claimant during the football game on October 23, 1999 (No. 01-CC-3110) - each claim is independent, was filed separately, and requires a separate analysis of the facts and elements of each claim.

A. Claim No. 01-CC-3111: October 21, 1999 Fall in Dorm Stairwell

In Claim No. 01-C-3111, the Claimant alleges that the Respondent’s negligence caused him to slip and fall in the stairwell of his college dormitory, resulting in a lower back injury and the aggravation of a pre-existing lumbar spine injury.

Landlords are not insurers of their tenants’ safety, see Bourgonje v. Machey, 362 Ill.App.3d 984, 995 (1st Dist. 2005).

Landlords do, however, owe a duty to their tenants to [*119] maintain common areas in a reasonable safe condition.

See Salazar v. Crown Enterprises, Inc., 328 Ill.App.3d 735, 742 (1st Dist. 2002).

For a Claimant to recover upon a theory of negligence, he must prove, by a preponderance of the evidence, that the State breached its duty of reasonable care; the breach was a proximate cause of the Claimant’s injuries; and the Claimant was damaged as a result of the negligence.

Bahl v. State, 49 Ill.Ct.Cl. 120, 123 (1997).

Further, the mere fact that a dangerous condition existed is not, by itself, sufficient to constitute an act of negligence by the Respondent.

Sowizrol v. State, 51 Ill.Ct.Cl. 91, 97 (1996).

In order for a Claimant to recover, he must prove the state had actual or constructive notice of the dangerous condition that allegedly existed.

Id. For constructive notice, it must be shown that the defect was substantial enough and existed for such a length of time that reasonable persons would conclude that immediate repairs should be made or that warning signs be posted. Id.

For constructive notice, it must be shown that the defect was substantial enough and existed for such a length of time that reasonable persons would conclude that immediate repairs should be made or that warning signs be posted.

Id.

In Carlson v. Board of Regents, 47 Ill.Ct.Cl. 171 (1994), the Claimant was injured when she slipped on a wet tile floor while exiting a shower-bathroom in her university dormitory.

A pair of lady’s soaked trousers hanging on a wall hook had created the puddle of water she slipped on. Id. at 172.

The university had received complaints from dorm residents about students who tended to do their laundry in the bathrooms rather than in laundry facilities.

The Carlson Court found the Respondent negligent, as the water puddle in a dark area without a handrail posed a dangerous condition and that the Respondent had constructive notice of the dangerous condition: “Had its employees responded to students’ complaints as to laundering of clothes in the washroom, the State would have discovered the wet condition of the exit passageway.” Id. at 174.

By contrast, in O’Neill v. State, 46 Ill.Ct.Cl. 146 (1993), the Claimant slipped on water and injured her tailbone when she approached a water fountain at a Department of Public Aid office.

The Claimant testified that the water fountain was in a well-lighted area and that she was able to clearly see the floor, but that she had not noticed any water prior to her fall, only afterward, as the water was not noticeable to the naked eye. Id. at 148.

The

O’Neil Court ruled that the Claimant had not established that the Respondent had notice that there was water on the floor on the day of the accident and denied her claim. Id. at 148-49.

In the case at hand, the Claimant presented undisputed evidence that a potentially dangerous condition existed: water on the dorm stairwell landing.

But the mere fact that a dangerous condition may have existed is not, by itself, sufficient to constitute an act of negligence by Respondent.

Sowizrol, supra at 97.

The Claimant must prove Respondent University had actual or constructive notice of the condition. Id.

The Claimant, though, put on no evidence at trial that the Respondent had any actual notice of the water on the stairwell landing.

In fact, the Claimant testified that he did not know of anybody besides himself who had complained of water being in the stairwell or on the stairs on October 21, 1999.

When no evidence that the Respondent had actual notice of the water on the stairwell landing, the Claimant must prove the Respondent had constructive notice of the condition.

To prove constructive notice, the condition must be substantial enough and [*120] have existed for such a length of time that reasonable persons would conclude that immediate repairs should be made or, in the alternative that warning signs be posted. Id.

“Constructive notice will be established if it can be proven by strong and convincing proof that the defect existed for such a length of time as to confer notice on the State.” Stojentin v. State, 55 Ill.Ct.Cl. 292, 308 (1999).

In the instant case, the claimant testified that there was water on the stairwell landing after his shower that he had not noticed when he climbed the stairs to go take his shower.

Thus, if the water had been on the landing when he climbed the stairs to take his shower, the water must have been insubstantial, as the Claimant did not even notice it.

If, on the other hand, the water had not been on the stairway landing when Claimant climbed the stairs to go take his shower, but apparently had been deposited there sometime after the Claimant climbed the stairs but before he descended them after taking his shower, then the water on the stairwell landing was not a condition that had existed for such a length of time that reasonable persons would conclude that immediate repairs should be made or, in the alternative, that warning signs be posted.

Claimant presented no evidence as to how long the potentially dangerous condition existed other than his own testimony.

The Claimant testified that “I have no idea when the water got there.” The Claimant further testified that he did not observe and had no knowledge of water on the landing when he went up the stairs to take his shower, and first learned of the existence of the water on the landing when he fell going down the stairs after taking his shower.

Thus, the period in which the water could have existed on the landing would have been longer than the time necessary for the Claimant to take a shower.

Consequently, this Court cannot find that the Respondent had actual or constructive notice of the potentially dangerous condition, water on the stairwell landing, and, as such, Claimant has failed to meet his burden to prove the required element of notice in such a negligence claim.

Therefore, in Claim No. 01-CC-3111, judgment is entered against the Claimant and in favor of the Respondent.

B. Claim No. 01-CC-3110: October 23, 1999 Football Game

In Claim No. 01-CC-3110, the Claimant alleges that, despite the Claimant’s injury two days earlier from the fall in the dorm stairwell, the Respondent negligently allowed the Claimant to play in an intercollegiate football game that resulted in injury to, and in aggravation of, a pre-existing injury to his lumbar spine.

To sustain the burden of proof for a negligence claim, the Claimant must establish, by a preponderance of the evidence, that the Respondent owed the Claimant a duty, that the Respondent breached that duty, and that the Respondent’s negligence proximately caused the Claimant’s injury. Badali v. State, 54 Ill.Ct.Cl. 340, 341 (2001).

The burden of proof rests upon the Claimant to prove, by a preponderance of the evidence, both the existence of an injury and that the injury was the result of the occurrence of which the Claimant complains. Williams v. State, 49 Ill.Ct.Cl. 109 (1996) (quoting Bugariu v. Conley, 93 Ill.App.3d 571, 573 (1981)).

If the Claimant assumed the risk of harm, the Respondent will not be liable for negligence.

Medina v. State, 55 Ill.Ct.Cl. 364, 366 (2003).

“Participants in team sports, where physical contact among participants is inherent and virtually inevitable, assume greater risks of injury than nonparticipants or participants in noncontact sports."

Pfister v. Shusta, 167 Ill. 2d 417, 425 (1995).

As this Court has noted, “[i]njuries occur in athletic competition.” Medina, supra at 367.

The Claimant’s experience in the activity in question is [*121] relevant to both his awareness of the risks involved in the activity and his ability to perform the activity safely. Id.

In Badali, supra at 341, the Claimant injured his shoulder while trying to become a walk-on player on a university baseball team.

The Claimant had been participating in practices with the team for three weeks when the coach announced before a practice game that he had a mandatory headfirst slide rule. Id.

The coach warned that a player who failed to slide headfirst would be penalized by running or cut from the team. Id.

The Claimant had never done such a slide before and was scared by the prospect of sliding headfirst. Id.

In the course of the game, the coach signaled for the Claimant to steal second base. Id.

When the Claimant attempted to do so by sliding headfirst, his arm struck the second baseman’s left leg, twisted behind the Claimant, and his shoulder pulled from the socket. Id.

In denying the Claimant’s subsequent negligence suit, the Badali Court noted that, in a contact sport, risks and dangers created by the activity are assumed. Id. at 343.

The Court

further noted that a college student has the ability to make decision, and that “the facts demonstrated that the Claimant understood and accepted the dangers of the sport of baseball.

He knew and understood the dangers of sliding into a base.

Claimant chose to play in a game in which physical contact among participants is inherent in the conduct of the game.” Id.

“To find [the coach] negligent we would have to ignore Claimant’s decision to slide headfirst.

This raises the standard of care to a degree not required by the law.” Id.

In the instant case, Claimant made decisions indicating he was willing and able to play in the October 23 football game.

The Claimant participated in the walk-through practice on the Friday before the game, where he received his assignments for Saturday’s game.

The Claimant did not tell the coaching staff that he was not going to play in the next day’s game at any time during that practice.

On the morning of the October 23 football game, Claimant went to the training room and again obtained treatment.

The Claimant suited up for the game, went through pregame drills and at no time did Claimant say or indicate to Doyle in any way that he could not play in that game.

Claimant did not tell Doyle that he did not want to play or that he was too injured to play.

Further, Claimant testified that no one told him that he had to play in the October 23 football game and that no one pressured him to play in the game.

The Claimant testified that a football player has an obligation to tell his coach about an injury, and then report to the athletic trainer.

Nonetheless, Doyle did not find out about the Claimant’s complaints of radiating pain until after the game.

During the game, the Claimant never told Doyle that he could no longer play and Doyle did not observe anything during the game that indicated to him that the Claimant was injured in such a way that he should not be playing any further.

Further, Coach Wittke had no recollection of seeing the Claimant suffer an injury during the game.

After the game, the Claimant told Doyle that he had pain radiating down one of his lower extremities.

Doyle did not receive any information until after the game that, when the Claimant’s foot would strike the ground, it would radiate pain into his lower extremities.

Significantly, the Claimant testified that football was a violent game, that injuries happen in collegiate football, and that “[g]etting injured is a possibility in any game.”

Football is a contact sport, and as the Badali Court noted, risks and dangers created by such activity are assumed.

Just as the college student in Badali had the ability to make decisions, so, too, did the Claimant in the case at bar.

The Claimant decided to play collegiate football as an offensive lineman; to practice after the October 21 fall in the dorm [*122] stairwell; to obtain his assignments for the October 23 football game; to suit up for the game; to go through pre-game drills; and to play the entire football game without ever telling an athletic trainer or coach that his pain was too great and that he could not go on, despite his testimony that pain progressively moved down his leg as he played.

As did the college student in Badali, the Claimant in the case at bar clearly understood and accepted the dangers of collegiate football, knowing it to be violent and that getting injured was always a possibility.

He had, after all, suffered previous back injuries from football, including one earlier that month.

Nonetheless, like the college student in Badali, the Claimant in this case knowingly chose to play anyway.

As with Badali, the Claimant’s assumption of risk negates his claim of negligence against the Respondent.

See also 735 ILCS 5/2-1116.

In the instant case, Claimant focuses on the alleged negligence of athletic trainer Rob Doyle in allowing the Claimant to play in the October 23 football game, despite Dr. Rudert’s alleged restriction.

However, the circumstances surrounding the alleged restriction from playing in the game are not very clear.

Joe Shober testified that he learned of the supposed restriction not after talking to Dr. Ruder, but after only speaking to a nurse at Dr. Rudert’s office.

Dr. Rudert himself said he talked to a nurse, not the Claimant or his father.

Further, at one point Dr. Rudert testified that he did not recall talking to the Claimant’s father on October 22 or expressing an opinion through his nurse to the Claimant’s father whether the Claimant should play football.

Dr. Rudert did not even recall restricting the Claimant from playing prior to October 23, 1999.

The doctor’s testimony demonstrates that Dr. Rudert lacked a vivid or clear memory of making and conveying the restrictions.

Doyle’s memory of Joe Shober’s call and of receiving word of Dr. Rudert’s restriction was comparably lacking.

Joe Shober testified that when he conveyed word of the restriction to Doyle, he did not do it directly to Doyle - he left a message on an answering machine.

Doyle later called him back, and Doyle acknowledges that Joe Shober expressed to him that Dr. Rudert did not want the Claimant to play in the October 23 game.

However, Doyle did not recall any conversation in which Dr. Rudert himself told him that the Claimant was so restricted.

In fact, the only awareness Doyle had that Dr. Rudert had restricted the Claimant from playing in the October 23 football game was based solely upon his conversation with Claimant’s father, Joe Shober, on October 22.

Doyle and former Head Athletic trainer Bonnstetter testified that they had never before learned of a doctor’s restriction of a player through the player’s parent and Coach Wittke testified that he had never experienced a decision for a player not to play based upon information obtained that way.

Regardless of whether Doyle erred in handling the information concerning Dr. Rudert’s restriction of the Claimant in the October 23 football game, Claimant has failed to meet his burden of proving that Respondent’s alleged negligence proximately caused his injuries.

The evidence presented shows that Claimant suffered multiple lower back injuries prior to the October 23 football game, including the fall and injury to his back in his dorm stairwell two days earlier.

The Claimant himself testified that he suffered a lower back injury during high school and hurt his back again during football practice in September 1998.

Less than a month before the incidents that are the subject of this litigation, the Claimant again injured his lower back during pre-game drills on October 2, 1999 in Orlando, Florida.

On October 13, Dr. Rudert thought the Claimant might have a [*123] degenerative disk or disk herniation, as the Claimant complained at an EIU clinic about low back pain while sitting, which is related to the Radicular pain of a herniated disk.

After the October 21 fall in the dorm stairwell, Claimant complained of injuring his lower back.

Further, Claimant provided Dr. MacGregor with a history of developing pain that went right down his leg after the stairwell fall.

Claimant attributed this same sort of pain to the injury he claims to have suffered in the October 23 football game.

In his testimony, Claimant did not identify any specific player who injured him, a specific play in which he was injured, or even the quarter or half of the game in which his injury occurred.

In fact, there was evidence presented that the fact that Claimant experienced paresthesia or radicular pain during the October 23 football game did not necessarily mean it arose from an injury incurred in that game and that Claimant might have been feeling symptoms from something that occurred two days earlier, so that the pain he felt in the October 23 game could have been caused by the October 21 fall and not from playing in the game.

There was no concrete medical evidence presented by Claimant, within a reasonable degree of medical certainty, as to how much of the Claimant’s injury could be attributed to the October 21 fall in the dorm stairwell, how much could be attributed to the October 23 football game, or how much could be attributed to any one of the other back injuries Claimant had suffered over his high school or football career.

Dr. Rudert testified that he thought the Claimant already had a disk injury on October 21 and that the slip and fall did not help with that, but he had no way of proving how much the slip and fall damaged the Claimant’s disk.

Dr. Rudert had no opinion whether playing in the October 23 game aggravated the Claimant’s disk symptoms, as he didn’t see the Claimant that day.

Further, Dr. Rudert did not see the Claimant between his fall in the dorm and the football game and could not testify as to how much worse the Claimant’s disk herniation may have gotten.

Dr. Rudert testified that he could not differentiate between the fall in the dorm stairwell, the football game, and the prior pregame drills as to when the Claimant suffered his disk herniation, and that he did not know how much damage or pain each caused.

While initially opining that the October 23 football game aggravated the Claimant’s disk herniation suffered on October 21, Dr. MacGregor abandoned her initial opinion when presented with information about the Claimant’s prior injuries and symptoms.

No MRIs

were taken after the Claimant’s October 21 fall but before the October 23 football game.

Ultimately, Dr. MacGregor testified that she had no opinion as to when the Claimant herniated the disks in his back and had no opinion whether playing in the October 23 game aggravated the Claimant’s condition.

For the foregoing reasons, this Court cannot find Respondent University negligent in allowing Claimant to play in the October 23 football game or even that such conduct proximately caused his lower back disk injuries.

As such, Claimant has failed to meet his burden of proving, by a preponderance of the evidence, that Respondent was negligent.

Further, this Court finds that Claimant’s assumption of risk in playing collegiate football negates any claim of negligence that he may have had against Respondent.

Accordingly, judgment in Claim No. 01-CC-3110 is entered against the Claimant and in favor of the Respondent and Claimant’s claims are hereby denied.