Angela Kawaguchi v. State of Illinois

OPINION

BIRNBAUM, J.

This claim arises from injuries sustained by Claimant, Angela Kawaguchi, in a motor vehicle collision between Claimant and Illinois State Police Trooper, Erin Gainer. A hearing was conducted by Commissioner Buford on March 19, 2013.

On April 6, 2002, Claimant Angela Kawaguchi was driving her Buick Skylark westbound along Illinois lnterstate-88 at or around mile marker 137.5 in DuPage County. At the same time, Trooper Gainer, operating an Illinois State Police vehicle, received a call regarding an accident 'with possible personal injuries on eastbound lnterstate-88. After receiving this call, Trooper Gainer proceeded to drive the State motor vehicle down the ramp leading to the westbound lanes of lnterstate-88. When Trooper Gainer reached the bottom of the ramp, she tried to cross the westbound lanes of lnterstate-88 in an effort to gain access to the eastbound lanes. In attempting that maneuver she collided with the car driven by Ms. Kawaguchi, causing her injuries.

The State of Illinois admits that its employee, Trooper Gainer, was negligent in the operation of her Illinois State Police vehicle on April 6, 2002.

As a result of [*214] Respondent's negligence, Claimant alleges she experienced pain and suffering and will continue to experience pain and suffering in the future. She also claims a loss of her normal life, disfigurement and past medical bills. Respondent denies that its negligence was a proximate cause of Claimant's back injury and also contests the severity of her other injuries and the damages sought.

Testimony of Claimant Angela Kawaguchi

At the time of the accident Angeia Kawaguchi was 39 years old. She had three children including a daughter who was six months old at the time of the accident. Prior to the accident Claimant was a physically active person. Her activities included running (and even marathon running), biking and gardening.

Claimant testified that the collision with Trooper Gainer's vehicle was sudden and violent. She was thrown from her seat and about the car, eventually crashing into the windshield with her forehead shattering the glass.

Following the collision, Claimant was taken by ambulance to Good Samaritan Hospital where she was treated for fracture, dislocation and laceration on her right ankle, injury to her knee and laceration to her forehead. Surgery to repair the ankle was performed at Good Samaritan Hospital by Dr. Steven Louis. He had set the ankle without pain medication. Before being released from the hospital, Claimant was placed into a hard cast and prescribed physical therapy for her ankle and wrist injuries.

After her release from Good Samaritan Hospital, Claimant started treatment with Dr. Spiros Stamelos. Dr. Stamelos removed her hard cast and gave her a walking boot. At this time, Claimant also had a home health nurse come to her home to assist in physical therapy as well as administer Heparin.

Claimant's jaw continued to hurt. It was learned via x-ray that small bones in her jaw were fractured. Acute pain also continued in her ankle making it difficult to perform simple tasks. Testing showed compression of the deep peroneal nerve and lower extremity neuropathy. At the time, she could not breast feed her infant daughter because of the pain medications.

In 2003, Claimant had an MRI following continued complaints of back pain. It showed herniation at the lower lumbar section of the spine at L5-S1. Dr Stamelos did a laser disc compression in June 2003. Following the laser disc compression, Claimant indicated initially she felt better but after about a year the pain came back. The pain, she testified, was extreme with it radiating down her back, leg and buttocks. She was depressed when Dr. Stamelos told her she reached maximum medical improvement.

Claimant testified that she has been in pain, sometimes quite severe, since the accident. At times, she requires Dilaudid (a powerful narcotic) to manage her pain. She has not been able to run, a favorite activity, since the accident. She cannot work out and a short bike ride can give her pain for days after. Claimant also has continued numbness in [*215] her legs. She has a scar on her leg that makes her self-conscious. It's hard to play with her grandchild.

Claimant quit treatment with Dr. Stamelos and doing physical therapy in April 2004 - May 2006 because her son Todd was diagnosed with Stage IV Cancer. He was terminally ill. During this time she did exercises at home while caring for her sick son, two young daughters and three foster children. On the day of her testimony she said she is still in pain, has trouble sleeping and has restless leg syndrome.

Treating Physician Spiros Stamelos

Dr. Stamelos is a board certified orthopedic surgeon and has been treating Claimant since her release from Good Samaritan Hospital in 2002. At the time of his testimony, Dr. Stamelos was on staff at Children's Memorial and Sacred Heart Hospitals. He is Chief of Surgery at Sacred Heart. He has been practicing for nearly 40 years.

Dr. Stamelos described Claimant's ankle injury as unusual and severe involving a combination of dislocation and fracture where by the bone breached the skin and became exposed. Dr. Stamelos attributed the back injury to the altered gait Claimant had owing to the fact that she had a hard and later a walking cast following the accident. In addition, he opined that the back pain may have been masked for the initial period following the accident because of the more traumatic and painful injuries she initially suffered.

He performed a laser disc decompression to help alleviate the pain.

Dr. Stamelos opined that Claimant has reached maximum medical improvement meaning that she is likely to incur chronic pain in the future. Dr. Stamelos also gave his opinion that her ankle and back injuries (with resulting arthritis) are disabling injuries requiring ongoing care and will have a permanent impact on her life. The stenosis in her lower spine will get worse over time, he said.

Testimony of Dr. Terrence Lichtor

Respondent disputes the testimony of Dr. Stamelos, in part through its proffered expert Terrence Lichtor, MD, PhD. Dr. Lichtor is board certified neurosurgeon. Dr. Lichtor opined that because Claimant did not experience lower back pain symptoms until 3-4 months after the accident it is unlikely that her disc herniation was caused by the accident.

Dr. Lichtor opined that Dr. Stamelos was not correct in his opinion that the age of herniation can be determined by examination of MRI film and that he had no basis for concluding that there is a causal relationship between the accident and the back injury.

Dr. Lichtor also opined that a herniated disc without compression was not and could not be the source of her alleged back pain. More likely, he said, her back pain, if any, was from muscle strain and as such, it was not necessary or reasonable to treat her with surgery.

[*216] Damages

Plaintiff is entitled to recover all damages that naturally and proximately flow from the tort. Horan v. Klein's-Sheridan, Inc., 62 Ill.App.2d 455, 459 (3d Dist. 1965). In evaluating the damages to be awarded, this Court may consider the following categories of damages: medical expenses, lost income, pain and suffering, and disability.

Giovanetto, et al. v. State of Illinois, 42 Ill.Ct.Cl. 106 (1990).

Pain and suffering are compensable elements of damages. Donk Bros. Coal & Coke Co. v. Thil, 228 ILL. 233, 241 (1907); Krichbaum v. Chicago City Ry. Co., 207 Ill.App. 44 (1st Dist. 1917).

Loss of a normal life is recognized as a separate element of compensable damages in Illinois. Smith v. City of Evanston, 260 Ill.App.3d 925 (1st Dist. 1994).

Disfigurement is recognized as a separate element of compensable damages in Illinois. Holston v. Sisters of the Third Order of St. Francis, 165 lll.2d 150, 175 (1995); Simon v. Kaplan, 321 Ill.App. 203 (1st Dist. 1944).

In support of the claim, Counsel for Claimant argues that Claimant's injuries were significant including a severe fracture to her right ankle, a hemiated disc, fractured jaw and multiple lacerations including a disfiguring scar. They offer the testimony of Claimant's treating physician, Dr. Stamelos, who testified that Claimant has reached maximum medical improvement, meaning her pain and suffering is permanent. Counsel for Claimant also refutes the opinions of the Respondent's expert, arguing that he is little more than a hired gun who has given 107 depositions in his career, all for the defense. Respondent's expert has testified 25 times at trial, in 24 cases for the defense and one case for the plaintiff where he was the treating physician. Dr. Lichtor, they note, has been paid 2.2 million dollars in his career testifying for the defense and they argue Dr. Lichtor has never met or examined Claimant. Additionally, they argue Respondent failed to cross examine Claimant or Dr. Stamelos on any issue of damage other than the back injury. The parties stipulated that as of the date of trial, Claimant had a life expectancy of another 37.4 years.

The Respondent argues that Claimant is not entitled to the relief sought. They cite the testimony of their expert who concludes that the Claimant's back injury should not have been treated surgically so any treatment was unreasonable and unnecessary. They also cite Dr. Lichtor's opinion that the back injury is unrelated to the accident. Lastly, Respondent argues that Dr. Stamelos' testimony on causation and permanency as to her back injury is speculative. So at best, Respondent argues Claimant should be compensated for the ankle injury from which she has fully recovered. They assert that her condition is improving as evidenced by her treatment over the years.

Respondent seeks to exclude of testimony of Dr. Stamelos for treatment after May 2011 citing Commissioner Buford's ruling barring his testimony after that date. Because of the exclusion of testimony for treatment after May 2011, they argue Dr.

[*217] Stamelos opinion on permanency is speculative. But Respondent ignores the fact that the medical records and testimony reflects Dr.Stamelos' conclusion that Claimant achieved maximum medical improvement in her right ankle in August 2003 and her lower back in February 2004.

Respondent also questions the accuracy of some of Dr. Stamelos' billings. We agree that the billings by Dr. Stamelos should be reduced to $23,227 as opposed to the claimed amount of $38,576. We also find that there are duplicative billings in the amount of $14,000 arising from MRI and other neurological procedures performed by other physicians, but also listed on Dr. Stamelos' bill.

The Court Findings as to Damages : Prior to discussing the specific damages sustained by Claimant, the Court notes that tort claims made in the Court of Claims are generally subject to a $100,000 cap on damages. There is an exception for cases when a Claimant is injured due to the negligence of a state employee while operating a state owned vehicle. 705 ILCS 505/8(d). This case presents such a situation and therefore, the $100,000 cap on damages does not apply. Claimant has sufficiently demonstrated by the evidence that her life has been significantly changed for the worse as a result of the injuries she suffered and that her injuries were of such a nature as to cause her considerable amounts of pain and suffering.

In assessing the testimony of the witnesses and the briefs in support, we find for Claimant as follows:

Pain and Suffering

$100,000

Future Pain and Suffering

$125,000

Past Loss of a Normal Life

$75,000

Future Loss of a Normal Life

$75,000

Medical

$77,651

TOTAL

$452.651

ORDER ON REHEARING

This matter is before the Court on Claimant’s Petition for Rehearing pursuant to 74 Ill.Adm.Code 790.220.

This Section requires that a Petition for Rehearing “state briefly the points supposed to have been overlooked or misapprehended by the Court with authorities and suggestions concisely stated in support of the points.”

In the instant case, the Court agrees with Claimant that it misapprehended its finding on damages as it relates to future pain and suffering and the future loss of a normal life.

At hearing Claimant introduced evidence, uncontested by Respondent, that she had a life expectancy of 37.4 years.

Accordingly, her future loss of a normal life and future pain and suffering would warrant greater damages than those awarded for her 11 years from the date of the accident until her hearing, past loss of a normal life, and past pain and suffering.

[*218] Accordingly, the Order of the Court is hereby amended as follows:

Pain and Suffering

$100,000

Future Pain and Suffering

$150,000

Past Loss of a Normal Life

$75,000

Future Loss of a Normal Life

150,000

Medical

$77,651

TOTAL

$552.651

IT IS SO ORDERED

[*219] No. 10-CC-1199 - Claim Denied)

MARIO PROSPERI, Claimant, v. STATE OF ILLINOIS, Respondent.

Opinion filed June 12, 2014

JASON HAMMOND, for Claimant

MARTHA BURZAWA, Assistant Attorney General, Respondent.

Negligence- Duty- The State of Illinois is not an insurer of the condition of the highways under its maintenance and control, but it does have a duty to use reasonable care maintaining roads under its control.

Negligence- Elements- In order for a claimant to recover for injuries suffered as a result of an accident on a state highway due to a pothole, the claimant must prove, by a preponderance of the evidence, that the State was negligent, that the State's negligence was the proximate cause of the injuries, that a dangerous condition or defect existed, and that the State had actual or constructive notice of the dangerous condition or defect.

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

OPINION

SPRAGUE, J.

Claimant Mario Prosperi brings this claim in negligence for significant injuries he sustained to his left ankle, left shoulder, ribs, and middle and index fingers of his left hand after his motorcycle hit a pothole on a State-owned roadway.

FACTUAL BACKGROUND

Claimant Mario Prosperi testified that on the morning of November 4, 2007, he was riding a motorcycle southbound on U.S. Route 12 (also known as Rand Road) with about ten other riders as part of an organized ride to honor fallen Marines. At the location of the accident, there were two lanes going southbound on Rand Road, and the riders were riding in a staggered position. Claimant, who was in the right lane, was either the third or fourth rider from the front. As Claimant went up an incline, just after Rand Road intersected Old Rand Road, his front wheel hit a pothole.

Claimant could not describe the dimensions of the pothole because he never saw it. Still, he stated that it must have been sizeable because his front wheel stopped completely upon hitting it. After his front wheel stopped, Claimant was ejected onto the [*220] road ahead, causing the entire left side of his body to land on the pavement with great force. He lived in the area and had travelled Rand Road in his car at least two to three times a week, yet he never saw this pothole before. He opined that it would not be visible from a car. However, he never saw it while riding a motorcycle either, which he had been doing a few times a week starting about five years prior to this incident.

After Claimant's body landed on the road, Sal Saccomanno, the rider to the left behind him, came up to him and told him not to move. An ambulance then took Claimant to Good Shepherd Hospital in Lake Zurich, where he was kept under observation in the ICU for four days. Although medical records were not offered into evidence, bills admitted into evidence indicate that during his four days in ICU, X-rays were taken of Claimants left ankle, left knee, chest, spine, left shoulder, and left scapula. CT scans were taken of his chest, spine, pelvis, and abdomen.

The bills also indicate that he was treated at the hospital for a closed rib fracture and sprained ankle. Claimant stated that he required a wheelchair to get around while at the hospital. Also, his middle and index fingers of his left hand were splinted. Claimant stated that upon leaving the hospital his fingers remained splinted for several months and he required a walker to get around for about three weeks. On November 21, 2007, he was given an air cast for his ankle. He also saw a doctor regarding issues with his left shoulder, specifically disorders of the bursae and tendons. Issues related to his fingers, ankle, and shoulder resulted in him needing several months of physical therapy sessions. Although his middle finger and shoulder no longer hurt, his index finger still cannot close all the way, and Claimant still has occasional ankle pain that prevents him from doing certain activities he used to enjoy.

When Claimant called Mr. Saccomanno as a witness, Respondent objected because Claimant failed to answer Respondent's Ill. S. Ct. R. 213 f(l) interrogatories by providing the name and address of each trial witness and the subject upon which they will testify. Mr. Saccomanno had not been deposed, and Respondent's attorney argued that he did not know the subject matter of his testimony and therefore objected to him being allowed to testify at the hearing.

The Commissioner sustained Respondent's objection. The Commissioner also sustained, on identical grounds, the same objection made by Claimant with respect to Respondent calling IDOT representative Sharon Watson as a witness.

ANALYSIS

The State of Illinois is not an insurer of the condition of the highways under its maintenance and control, but it does have a duty to use reasonable care maintaining roads under its control. Baker v. State, 42 Ill.Ct.Cl. 110, 114-115 (1989), citing Ohms v. State, 30 Ill.Ct.Cl. 410 (1975). In order for a claimant to recover for injuries suffered as a result of an accident on a state highway due to a pothole, the claimant must prove, by a preponderance of the evidence, that the State was negligent, that the State's negligence was the proximate cause of the injuries, that a dangerous condition or defect existed, and [*221] that the State had actual or constructive notice of the dangerous condition or defect. Dixon v. State, 51 Ill.Ct.Cl. 14 (1998), citing Scroggins v. State, 43 Ill.Ct.Cl. 225(1991).

In this claim Claimant offered no evidence that Respondent ever actually knew about the pothole in question. That takes us 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 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, 208 (1995).

Claimant offered no evidence regarding how long the pothole existed. As for the nature of the pothole itself, Claimant never saw it and was unable to describe it. Further, no photographs were offered depicting what the pothole looked like at the time of Claimant's accident, and no measurements of the pothole were provided. All Claimant offered regarding the size of the pothole was his testimony speculating that the pothole must have been sizeable because it stopped the front wheel of his motorcycle when it hit the pothole. However, that alone-although very unfortunatedoes render it more likely than not that the nature of the pothole was such that it was so obvious a defect that Respondent should have known about it.

Whether Claimant was the third or fourth rider, one of the riders in the staggered configuration ahead of him would have travelled over that same part of road that Claimant did. That someone similarly situated to Claimant did not get injured by the pothole very close in time to when Claimant was injured does not support that the pothole was "sizeable" as Claimant speculated.

Claimant also testified that he had been riding a motorcycle for five years prior to the accident and lived in that area and had traveled Rand Road, but never saw the pothole in question. Further, at least a few times a week he travelled that road in his car and he never saw the pothole then either. Again, these facts decrease, not increase, the likelihood that the nature of the pothole was such that it should have been discovered by Respondent. Claimant's contention that the pothole could not be seen while in a car, again, does not support his assertion that the pothole was "sizeable.'

Thus, Claimant has also failed to establish that the nature of the pothole itself was such that notice should be imputed to Respondent.

For the above-mentioned reasons, Claimant has failed to establish by a preponderance of the evidence that Respondent had actual or constructive notice about the pothole that he contends caused his damages. And because Respondent cannot breach its duty of care by failing to protect Claimant from a harm of which it did not have actual or constructive notice, Claimant has failed to establish that Respondent breached the duty it owed him. Accordingly, Claimant has failed to establish his cause of action for negligence, and his Claim is hereby DENIED.