William Collins v. State of Illinois

OPINION

SPRAGUE, J. This claim is before the Court due to a motorcycle accident that occurred on the Illinois State Fairgrounds in Springfield on September 2, 2007. The Illinois State Fairgrounds ("Fairgrounds") is owned, operated and maintained by the State of Illinois' Department of Agriculture. Claimant alleges that a pothole that had developed on the surface of the roadway on the Fairgrounds caused him to tip his motorcycle over onto his leg, resulting in injury. Claimant alleges that Respondent was negligent in failing to properly maintain the surface of the [*146] roadway so as to allow a dangerous condition to exist in an area frequented by pedestrians and vehicular traffic, and that Respondent was negligent by allowing the roadway to deteriorate so that a substantial defect in the surface of the roadway developed, which Respondent knew or should have known posed a substantial danger to those persons traveling or walking upon said roadway.

Claimant seeks to recover $54,474.99 for medical expenses, $915.02 for expenses incurred to store, retrieve and transport his motorcycle back to his home state of Pennsylvania, and $44,609.99 for pain, suffering and loss of normal life, for total damages in the statutory maximum amount of $100,000.00.

Respondent asserts that it was not negligent in maintaining the roadway at the Fairgrounds, that it had neither actual nor constructive notice that the pothole existed and that Claimant failed to establish that the pothole caused his injury.

Further, Respondent asserts that Claimant's own negligence caused his injuries and that, as such, Claimant should be barred from recovery or, in the alternative, that any recovery be reduced by his comparative fault.

FACTUAL BACKGROUND

Claimant is a retired Pennsylvania man who was 75 years old when he broke his ankle while he was at the Illinois State Fairgrounds in Springfield for the annual motorcycle races on Labor Day weekend in September 2007. According to the evidence at trial, Claimant and his long-time friend, David Bogle, traveled by motorcycle from Pennsylvania to Illinois in order to watch the motorcycle races held at the Fairgrounds over the Labor Day weekend, arriving in Springfield on August 31, 2007. Claimant testified that his motorcycle was a 1997 Kawasaki Blazer which weighed approximately 750 pounds and that he had ridden a motorcycle for over sixty years. Claimant and Mr. Bogle stayed at the Comfort Inn on Dirksen Parkway and rode their motorcycles to the races on both Saturday and Sunday. On Saturday, September 1, 2007, Claimant and Bogle attended the short track races at the Fairgrounds, driving their motorcycles to and from the races. On the following day, Sunday, September 2, 2007, they returned and were among the thousands of spectators who watched the events that concluded the races. They parked their motorcycles in Lot 21, which is on the north side of the Fairgrounds.

The most important and final motorcycle race took place late Sunday afternoon and all of the spectators left at approximately the same time, resulting in thousands of motorcycles attempting to leave the Fairgrounds during the same period of time. Because of the number of motorcycles in Lot 21 and the availability of only one or two gates, traffic was very slow and "stop and go."

Claimant testified that when they left the races that afternoon, traffic was slow, and that it was moving "a mile an hour, if even that." He said traffic would "go two feet and stop, two feet and stop." Claimant testified that he had just reached the blacktop roadway that divides Lot 21 and was surrounded by other bikes trying to exit onto Taintor Road when the accident occurred. He testified that because there were bikes on all sides and in front and in back, he was unable [*147] to see the roadway. Claimant said that because he was surrounded by other bikes, he was only able to keep his motorcycle "about a foot" behind the motorcycle in front of him, and that was so close that he could not see the road. Claimant stated that just before he was injured he was primarily concerned about not running into one of the motorcycles that surrounded him. While on the roadway Claimant was forced to stop his vehicle and attempted to stabilize the motorcycle with his left foot. He testified that as he put his foot down, his foot went down into a pothole approximately 15 inches in length, 12 inches in width and 4 inches in depth and that he could not control the sideways movement of his bike, causing him to lose control of his motorcycle which fell on his left lower leg.

Immediately after his injury, Claimant experienced significant pain and swelling and was taken by ambulance to St. John's Hospital in Springfield, where x-rays revealed a fractured fibula. Because the swelling prevented immediate surgical intervention, the doctor placed Claimant's leg in a splint, gave him crutches and told him to follow up with an orthopedic surgeon in Pennsylvania.

He was released from St. John's Hospital later that evening, and he and Mr. Bogle flew back to Pennsylvania the following day where he presented at Riddle Memorial Hospital in Philadelphia. Claimant suffered injuries to his left leg and ankle, including a comminuted fracture of the distal left fibular shaft and comminuted fractures of the posterior and lateral aspects of the distal left tibia extending into the tibiotalar joint. On September 4, 2007, Claimant saw his orthopedic surgeon, Dr. Jamal Ahmad, who diagnosed a "left Weber C distal fibula fracture, unstable with nondisplaced small posterior malleolus fracture." On September 12, 2007, Dr. Jamal Ahmad performed an open reduction and internal fixation of Claimant's left ankle, surgically repairing and stabilizing his ankle using a plate and screws. Following the surgery Claimant was placed in a restrictive boot and used crutches to remain non-weight bearing for approximately two months.

He suffered no complications from the surgery.

During a follow-up visit on October 30, 2007, Claimant reported that the swelling in his ankle had resolved itself. His ankle was x-rayed again and a less restrictive boot was put on his ankle. Claimant was told that he could begin to bear weight on his ankle, but only in his boot, which he was informed he could take off daily to begin gentle range-of-motion exercises. On January 22, 2008, Dr.

Ahmad advised him that his fracture had healed and he could return gradually to his previous level of activity.

As a result of his injuries, Claimant did not engage in any physical activities for approximately three to four months and was on pain medication throughout this period of time. He was unable to hunt, fish, ride his motorcycle, and assist Mr.

Bogle with mechanical issues until well into 2008. Claimant testified that it was three or four months before he could cut grass or do much around the house, and that he took pain medication for that same time period. Claimant testified that he continues to have pain on one side of ankle, although it is not severe. He also [*148] testified that shoes dig into his ankle when he wears them, so he normally wears a higher boot that doesn't affect his ankle when he is at home.

Evidence was presented that, as a result of his injuries, Claimant incurred medical expenses totaling $55,474.99 and an additional $915.02 in expenses in retrieving his motorcycle from Springfield, Illinois.

Pictures taken by David Bogle on September 27, 2007, were admitted into evidence as accurately reflecting the condition of the pothole in question on the date Claimant was injured.

Tim Kraft was the Bureau Chief of Buildings and Grounds for the Illinois State Fairgrounds from 2003 to 2011, during which time he oversaw the day-today operations of the Fairgrounds. At the time of the incident in question in 2007, the State employed six full-time and additional part-time persons whose job it was to maintain the outdoor portion of the Fairgrounds. He testified that there are hundreds of non-fair events year-round at the Fairgrounds and it was their job to setup and tear down for the events, mow, spray, and maintain the Fairgrounds itself, which includes 366 acres, with more than 170 buildings, numerous parking lots, and several miles of roadways. Mr. Kraft testified that the grounds crew only inspects the Fairgrounds' roadways and repairs any potholes with asphalt twice a year. This usually takes place in the spring and again just before the State Fair.

Additionally, if a pothole was brought to the ground crew's attention, workers would be dispatched to patch the hole as soon as possible or, if it could not be fixed right away, a barricade was put around it. Mr. Kraft further testified that in 2007 and the years leading up to it, his budget had been cut an average of a "couple hundred thousand a year." According to records, Respondent only purchased 69 tons of asphalt from March to December, 2007, but in March 2008 alone, it purchased more than 126 tons.

Mr. Kraft testified that the area where Claimant was injured, the roadway between the parking lots in Lot 21, is one of the highest traffic areas on the Fairgrounds and regularly handles trailers and larger trucks entering and leaving the facility. Although Mr. Kraft testified that he was aware that the annual motorcycle races draw thousands of spectators and thousands of vehicles, he admitted that no one checked for potholes between the end of the Illinois State Fair in the middle of August and the Labor Day weekend motorcycle races.

While

neither Claimant nor Mr. Kraft could say how long the pothole had been there, they both agreed that it was not a new pothole.

Mr. Kraft testified that he believed it had probably formed during the State Fair. This is because the roads around Gates 6 and 7, where this incident occurred, are among the highest traffic areas in the Fairgrounds, and Lot 21 is used frequently by numerous trucks and trailers hauling animals and equipment to and from the State Fair. Although Mr. Kraft testified that it was common knowledge that there were a lot of areas in the stretch of road where Claimant was injured that were not in good shape, he also testified that Respondent had no notice of the alleged pothole in question and that [*149] he only learned of Claimant's accident a few days after it had happened. Mr. Kraft did acknowledge though that the State of Illinois has an obligation to use reasonable care to keep the roads in the Fairgrounds safe for invitees and that includes examining the roadways on a regular basis and fixing potholes as necessary. Mr. Kraft also acknowledged that since the area in question is a roadway between parking lots, it is possible that the maintenance people failed to look at that particular area and, therefore, missed the pothole in question.

ISSUES

1.

Was Respondent negligent in failing to properly maintain the surface of the roadway so as to allow a dangerous condition to exist in an area frequented by pedestrians and vehicular traffic, or by allowing the roadway to deteriorate so that a substantial defect in the surface of the roadway developed which Respondent knew or should have known posed a substantial danger to those pedestrians and vehicles traveling or walking upon said roadway? 2.

If Respondent was negligent, was Claimant contributorily negligent to the extent that recovery should be barred or reduced by his comparative fault?

ANALYSIS

Negligence is generally defined as the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence. Perryman v. Chicago City Ry. Co., 242 Ill. 269. (1909): Rikardv. Dover Elevator Co., 126 Ill.App.3d 438, (5th Dist. 1984). In a negligence claim, the claimant must show the State owed a duty of reasonable care to the claimant, the State breached its duty, and that the State's breach was the proximate cause of the claimant's injury. Sowizrol v. State, 51 Ill.Ct.Cl. 91 (1996). "Proximate cause" consists of two separate requirements: cause in fact and legal cause. City of Chicago v. Beretta U.S.A Corp., 213 Ill. 2d 351, 395 (2004), rehearing denied (2005), quoting Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455 (1992).

Cause in fact is satisfied "when there is a reasonable certainty that the defendant's acts caused the injury or damage." Lee, 152 Ill. 2d at 455. "In deciding this question, we first ask whether the injury would have occurred absent the defendant's conduct." City of Chicago, 213 ILL.2d at 395. When multiple factors may have caused plaintiffs injury, the determination is whether the defendant's conduct was a material and substantial factor in causing the injury. Id.

The State has a duty to maintain a parking lot in a safe condition for use by those persons lawfully present.

Clark v. Board of Trustees of Southern Illinois University, 08-CC-0458 (Opinion filed March 26, 2010). However, the State is not an insurer of the safety of those persons who travel upon its roadways. Guy v.

State, 52 Ill.Ct.Cl. 23 (1999); Trotter v. State, 45 Ill.Ct.Cl. 165 (1993). The State does [*150] have an obligation to use reasonable efforts to keep roadways made available to invitees in a reasonably safe condition or, in the alternative, to warn that an unsafe condition does exist. Schmit v. State of Illinois, 59 Ill.Ct.Cl. 246 (2007); Consolidated Freightways v. State of Illinois, 37 Ill.Ct.Cl. 32 (1985). This responsibility includes an obligation to make reasonable inspections in order to ensure that dangerous conditions have not arisen, National Bank of Bloomington v. State of Illinois, 34 Ill.Ct.Cl. 23 (1980). The existence of a dangerous condition however, is not, by itself, sufficient to constitute an act of negligence on the State's behalf. Id.

The

claimant must also show that the State had actual or constructive notice of a dangerous condition. Id.

In order to constitute constructive notice, a claimant must show that the defect was "substantial enough and must have existed for such a length of time that reasonable persons would conclude that immediate repairs should be made or, in alternative, that warning signs be posted." Bowley v. State, 52 Ill.Ct.Cl. 18 (1999). Whether or not the evidence is sufficient to establish constructive notice must be determined on a case-by-case basis. Lambatos v. State, 44 Ill.Ct.Cl. 238 (1992). For example, in Baren v. State 30 Ill.Ct.Cl. 162 (1974), a pedestrian broke her foot when she stepped into a depression in a street, and the evidence established that the hole that measured three feet long, two feet wide and three or four inches deep, had existed for at least one month, and possibly three or four months before the accident. The Court concluded that the hole had existed long enough to put the State on notice of its existence and to enable it to either repair it or place a sign there warning pedestrians and motorists.

Similarly, in Stills v. State, 41 Ill.Ct.Cl. 60 (1989), a motorist in Chicago alleged that a series of deep holes in the street caused him to lose control of his vehicle. The Court concluded that because the pothole had existed between four and twelve weeks, the State should be charged with constructive notice of the pothole. However, the Court refused to find the City of DeKalb negligent in La Point v. Boddy, 99 Ill. App. 3d Ill, (2nd Dist. 1981), in which a bicyclist lost control of his bike on the shoulder of the road that was several inches lower than the pavement. Testimony at trial established that the road was graded and graveled twice a year as a regular maintenance operation but that it was difficult to keep the gravel flush with the pavement due to the rain, weather changes and vehicles knocking the gravel away from the edge of the pavement. The Court concluded that the city's efforts to maintain the shoulder flush with the pavement were reasonable and that Respondent was not negligent.

In this case, Claimant alleges that Respondent failed to maintain the roadway so that a pothole formed measuring approximately 15 inches long, 12 inches wide and 4 inches deep, causing him to tip his bike over when he put his foot down as he came to a stop.

Respondent claims that it was Claimant's own actions and limitations, and not the pothole, that caused the motorcycle to fall over, causing Claimant's injuries.

The evidence supports the fact that it was the existence of the pothole and not the Claimant's own actions and limitations, that caused Claimant's motorcycle to tip over causing his injuries. Although Claimant was a 75-year-old man and his [*151] motorcycle weighed approximately 750 pounds, according to the evidence at trial, Claimant, along with his friend, traveled by motorcycle from Pennsylvania to Illinois and had driven in and around Springfield and upon the Fairgrounds all weekend, apparently without any problems. Claimant also testified that he had ridden a motorcycle for over sixty years. Further, after the races ended, all of the spectators left at approximately the same time, resulting in thousands of motorcycles attempting to leave the Fairgrounds during the same period of time.

Because of the number of motorcycles and the availability of only one or two gates, traffic was very slow and Claimant was surrounded by other bikes trying to exit the Fairgrounds. Claimant testified that because he was surrounded by other bikes, he was only able to keep his motorcycle "about a foot" behind the motorcycle in front of him, and that was so close that he could not see the road.

While on the roadway, Claimant was forced to stop his vehicle and attempted to stabilize the motorcycle with his left foot. He testified that as he put his foot down, his foot went down into the pothole, and that he could not control the sideways movement of his bike, causing him to lose control of the 750 pound motorcycle, which fell on his left lower leg. Consequently, Claimant has established that the pothole caused his injury.

The fact that the pothole in and of itself caused the accident, however, is insufficient to constitute negligence. Although there was no evidence that Respondent had actual knowledge that the pothole existed, there is sufficient evidence to establish constructive notice on the part of Respondent. Although neither Claimant nor Mr. Kraft could say how long the pothole had been there, they both agreed that it was not a new pothole. The only evidence introduced regarding how long the pothole may have been there came from Mr. Kraft, who acknowledged that he believed it may have formed during the State Fair, which ended in the middle of August, more than two weeks before the Labor Day weekend motorcycle races that Claimant attended. The Illinois State Fair lasts ten days. As such, the evidence suggests that the pothole may have existed anywhere from two to four weeks before Claimant was injured.

Further, according to Mr. Kraft, the area where Claimant was injured, the roadway between the parking lots in Lot 21, is one of the highest traffic areas on the Fairgrounds and regularly handles trailers and larger trucks entering and leaving the facility.

Mr. Kraft testified that he was aware that the annual motorcycle races draw thousands of spectators and thousands of vehicles, but he admitted that no one checked for potholes between the end of the Illinois State Fair in the middle of August and the Labor Day weekend motorcycle races. Mr. Kraft further testified that it was common knowledge that there were a lot of areas in the stretch of road where Claimant was injured that were not in good shape.

As such, although the pothole at issue in this case was arguably smaller than the road defects in Baren, supra, and Stills, supra, and may have existed for a shorter time, the State should be charged with constructive notice of the pothole.

As in the Baren case, this Court concludes that, more than likely, the pothole had [*152] existed long enough to put the State on notice of its existence and to enable it to either repair it or place a sign there warning pedestrians and motorists.

Moreover, unlike the Court's finding in LaPoint, supra, this Court finds that Respondent's efforts to maintain the roadways at the Fairgrounds were not reasonable. At the time of the incident in question in 2007, the State only employed six full-time and additional part-time persons whose job was to maintain the outdoor portion of the Fairgrounds. It was their job to maintain the Fairgrounds itself, which includes 366 acres, with more than 170 buildings, numerous parking lots, and several miles of roadways. Kraft testified that, although there are hundreds of non-fair events year-round at the Fairgrounds, the grounds crew only inspects the Fairgrounds' roadways and repairs any potholes with asphalt twice a year. The evidence established that Respondent only inspected the few miles of roadways twice a year, once in the spring and again in August before the State Fair begins.

Additionally, Respondent apparently attempts to justify, or at least argues that its ability to maintain the roadways within the Fairgrounds is very difficult for Respondent, particularly in light of annual budget cuts of $200,000.

Kraft testified that in 2007 and the years leading up to it, his budget had been cut an average of a "couple hundred thousand a year." According to records, Respondent only purchased 69 tons of asphalt from March to December 2007, to maintain its roadways, but the following year, in March 2008 alone, it purchased more than 126 tons of asphalt. Although neither party can cite any case law explicitly holding that budgetary constraints factor into the reasonableness of Respondent's maintenance efforts, Respondent argues that such conditions must be considered.

Respondent argues that with enough money and employees, the roadways could be inspected and repaired every day. As it is, Respondent argues, the testimony has established that Mr. Kraft simply does not have the budget to employ enough people to inspect several miles of roadways after every event at the Fairgrounds and that it must do what it can with what it has to work with. This Court cannot agree. Respondent's duty to properly maintain its property in a reasonably safe condition cannot be contingent upon any particular level of funding.

As such, Respondent is not relieved of its duty to properly maintain the surface of the roadway so as to prevent a dangerous condition to exist in an area frequented by pedestrians and vehicular traffic and, therefore, Respondent was negligent by allowing the roadway to deteriorate so that a substantial defect in the surface of the roadway developed, which Respondent knew or should have known posed a substantial danger to those persons traveling or walking upon said roadway.

We find that Claimant has established, by a preponderance of the evidence, that Respondent breached its duty to maintain the roadway in a reasonably safe condition and that, as a result of its breach, Claimant was injured.

[*153] Respondent next argues that Claimant was contributorily negligent to the extent that any recovery should be barred or reduced by his comparative fault. Contributory negligence occurs when a plaintiff acts without the degree of care that a reasonably prudent person would have used for his or her own safety under like circumstances and that action is the proximate cause of the plaintiffs injuries. Coole v. Central Area Recycling, 384 Ill. App. 3d 390, 396 (4th Dist. 2008), citing Basham v. Hunt. 332 Ill. App. 3d 980, 995 (1 st Dist. 2002).

Section 2-1116 of the Code of Civil Procedure bars a plaintiff whose contributory negligence "is more than 50% of the proximate cause of the injury or damage for which recovery is sought" from recovering any damages. 735 ILCS 5/2-1116 (West 2012). If t he trier of fact finds that the plaintiff is less than 50% at fault, his damages "shall be diminished in the proportion to the amount of fault attributable to the plaintiff." Id.

Respondent argues that the evidence in this case establishes that the accident would not have occurred but for Claimant's own actions. In furtherance of its argument, Respondent points to Claimant's testimony in which he admitted that he could not lift or control the side-to-side movement of the motorcycle once it started to tip. Moreover, Respondent alleges that Claimant did not watch the road to see whether he could safely put his foot down as he inched along in traffic and that he failed to leave sufficient room between his bike and the one in front of him so he could see the pavement in front of him. According to Respondent, this conduct amounts to contributory negligence that is more than 50% of the proximate cause of the accident and, therefore, Claimant's recovery should be barred due to Claimant's contributory negligence. This Court does not agree.

While on the roadway, Claimant was forced to stop his vehicle and attempted to stabilize the motorcycle with his left foot

The

one reason Claimant was unable to lift or control the side-to-side movement of the motorcycle once it started to tip was that, as he put his foot down, his foot went down into the pothole and, therefore, he could not control the sideways movement of his bike, causing him to lose control of the 750 pound motorcycle, which fell on his left lower leg. Furthermore, according to his testimony, it was not possible, under the circumstances, due to the thousands of motorcycles attempting to leave the Fairgrounds at the same time, and because there were bikes on all sides and in front and in back, for Claimant to be able to see the pothole in the roadway.

As

such, this Court cannot find that Claimant was contributory negligent.

CONCLUSION

For the foregoing reasons, it is hereby ordered that Claimant, William Collins, be awarded $54,474.99 for medical expenses, $915.02 for expenses incurred to store, retrieve and transport his motorcycle back to his home State of Pennsylvania, and $44,609.99 for pain, suffering and loss of normal life, for total damages in the amount of $100,000.00.