John Erving v. Board of Trustees of the University of Illinois et al.

ORDER

BIRNBAUM, J. THIS MATTER is before the Court on Cross Summary Judgment Motions.

NATURE OF THE CLAIM

On January 4, 2009, Claimant sustained injuries as a result from falling on an allegedly loose paver stone at the southeast plaza of the University of Illinois at Chicago ("UIC") Medical Center located at 1740 West Taylor Street, Chicago, Illinois. The walking areas comprising the southeast plaza of UIC Medical Center are concrete pavers over a roofing system. Claimant alleges that when he stepped on one of the concrete pavers it was not secure and flipped up causing him to lose his balance and to twist his knee causing [*123] injury. Claimant filed his complaint in this Court on December 17, 2009, alleging that he was injured due to the unstable concrete pavers resulting from the negligence of Respondent in the faulty design and/or construction of the southeast plaza.

The brick paver plaza walkway was designed, constructed and installed in 2002- 2003 pursuant to a Capital Campaign at UIC. The plaza walkway consisted of a series of 2'x2' square cement blocks or pavers which were supported at each corner by 4"x4" pedestals.

The pedestals rested upon Polyurethane/Styrofoam pads atop a roof membrane. On September 9, 2011, Claimant filed a Motion for Partial Summary Judgment on liability based on the deposition testimony of UIC employees, Alvin Swearingen and Bruce Nedwin.

Claimant's motion argues that the Swearingen and Nedwin testimony shows the brick paver walkway was negligently designed and constructed and UIC was aware of the design and construction flaw but failed to replace the walkway. A second case was filed in the Court of Claims stemming from a similar incident on October 29, 2008 in which the Claimant, Nicole Adams, stepped on an allegedly unstable loose paver stone at the southeast plaza of UIC Medical Center (10CC1203). Although Ms. Adams initially brought suit in the Court of Claims, she subsequently filed an action in the Circuit Court of Cook County against the architects and construction companies responsible for the design and construction of the walkway at the southeast plaza (Case No. 2010-M1-302783).

On September 8, 2010, Respondent wrote a letter to Claimant Erving's counsel advising counsel of the job file available for review, inspection and copying when convenient. On December 3, 2012, Respondent again wrote to Claimant's counsel, directing counsel to the availability of the documents listed in the September 8, 2010, letter.

Additionally, in the December 3, 2012 letter, Respondent attached a copy of the Complaint filed by Nicole Adams in the Circuit Court of Cook County after Respondent made the job file available for inspection by Ms. Adam's counsel. On October 20, 2011, Respondent filed a Cross-Motion for Summary Judgment in the present case asserting that Claimant failed to exhaust his potential remedies against the architects and other construction entities responsible for the design and construction of the UIC Medical Center southeast plaza. In response, Claimant alleges that any action against these entities was without merit and that Respondent failed to make the information relating to these entities available in a timely fashion.

ANALYSIS

The requirement to exhaust alternative sources of recovery before recovering from the State serves the purpose of making the State the payor of last resort and the payor of the least possible portion of any shared culpability for damages. Lyons v. State of Illinois, 34 Ill.Ct.Cl. 268 (1980). Section 790.60 of the Court of Claims Regulations provides, in pertinent part: As required by Section 25 of the Court of Claims Act, the claimant shall, before seeking final determination of his claim before the Court of Claims exhaust all other remedies, whether administrative, legal or equitable, against all other sources of recovery for the injury or damages sought to be recovered by the claim, provided that no frivolous or unreasonable action is required to be [*124] brought against any third party in order to comply with this exhaustion of remedies requirement. 74 Ill.Adm. Code 790.60.

This Court has previously interpreted the provisions of the Court of Claims Act and the Court of Claims Regulations to require exhaustion of remedies to apply and be nondiscretionary. Davaney v. State, 46 Ill.Ct.Cl. 461 (1996), Boe v. State, 37 Ill.Ct.Cl. 72 (1984). In Boe v. State, claimant's decedent was killed when the car in which she was a passenger collided with an allegedly defective guardrail on a State highway. The driver of the automobile was an 18-year-old uninsured man. The Boe Court held that Section 25 of the Court of Claims Act and Section 790.60 of the Court of Claims Regulations barred claimant's suit against the State because she failed to exhaust her potential remedy against the drive of the automobile. Exhaustion of remedies is a fundamental jurisdictional requirement which must be satisfied in order for any claim to be brought before this Court.

However, while the Court of Claims strictly recognizes this statutory exhaustion doctrine, it must be reasonable in its application. It is not enough for Respondent to point to an involved third-party to invoke this Court's exhaustion requirement as a bar to recovery. It is inadequate merely to say that someone else said or admitted that a third-party may have some liability. Instead, a showing of potential liability must be made and this Court requires the Respondent to carry this initial burden of proving that there is a viable cause of action against the putative third-party. Stupp Brothers Bridge & Iron Co. v. State, 51 Ill. Ct. Cl. 195 (1998).

Nicole Adams, in addition to filing her claim in the Court of Claims, filed a complaint in the Municipal Department of the Circuit Court of Cook County against private entities: CUH2A Architects, Hay den, Bulin, Larsen, Inc., Reliable & Associates Construction, Merchants Environmental Industries, and Sunny Brook Pressed Concrete Company. Because of the Circuit Court action, Ms. Adams' Court of Claims case was placed on general continuance pursuant to 790.60(a) of the Illinois Administrative Code. In July 2011, the parties in Ms.

Adam's case reached a settlement and recovered against Reliable & Associates Construction, Sunny Brook Pressed Concrete, Merchants Environmental Industries and HDR Architects (successor to CUH2A Architects).

Claimant was made aware at the same time as Ms. Adams that a construction file for the brick paver project existed and was available for inspection. Contrary to Claimant's contention, this Court finds that Claimant was adequately made aware in a timely fashion of the potential third-party sources of recovery in Respondent's September 8, 2010 and December 3, 2012, letters to Claimant's counsel. Additionally, Mr. Nedwin's testimony, relied on by Claimant in his Motion for Partial Summary Judgment, discusses the architects and construction companies Respondent relied on in the design and implementation of the plaza's paver system. The fact that Claimant can no longer pursue a potential remedy cannot be a defense to the exhaustion requirement. Lyons v. State of Illinois, 34 Ill.Ct.Cl. 268 (1981).

This Court concludes that a reasonable and alternative remedy did exist against CUH2A Architects, Hayden, Bulin, Larsen, Inc., Reliable & Associates Construction, Merchants Environmental Industries, and Sunny Brook Pressed Concrete Company. Because Claimant cannot exhaust his remedies against these entities in a Court of general jurisdiction due to [*125] its failure to timely pursue an action, Claimant's action against Respondent must be dismissed with prejudice for failure to exhaust remedies.

This Court finds that Respondent met its burden in establishing the potential liability from a third-party. Claimant has failed to file a complaint against the architect and construction companies that were involved in the UIC Medical Center plaza design and construction. As such, this Court finds that Claimant failed to pursue an alternative remedy as required by Section 25 of the Court of Claims Act.

IT IS HEREBY ORDERED that Claimant's Motion for Summary Judgment is DENIED and Respondent's Cross-Motion for Summary Judgment is GRANTED. Claimant's action against Respondent is DISMISSED with prejudice.