Theresa Ellerbrook v. State of Illinois

OPINION

BIRNBAUM, J. Claimant Theresa Ellerbrook seeks in excess of $50,000 in damages for this negligence claim. She asserts that she shattered her right elbow and broke and separated her right radius when she tripped and fell over a curb that was two-and-a-half inches higher than the abutting sidewalk on which she was walking. Claimant argues Respondent is liable for her damages because the raised curb constituted a dangerous condition from which Respondent failed to protect her. This claim was heard before a Commissioner on March 13, 2014.

FACTUAL BACKGROUND

The Incident

At approximately 6 p.m. in Melrose Park, Illinois, on June 5, 2002, Claimant Theresa Ellerbrook and her husband Robert Ellerbrook were walking southbound on a sidewalk on the west side of 11th Avenue. They were visiting their friend at Westlake Hospital on 12th [*134] Avenue and Chicago Avenue. In the nearly 25 years they had lived a block away on 11th Avenue, this was the first time they walked in that direction from their house.

When Claimant and her husband got to the intersection of 11th Avenue and Chicago, Claimant looked both ways and stepped off the sidewalk and onto the street with her left foot.

As she brought her right foot forward, it hit a curb that she described felt like a brick wall.

She immediately fell onto the street, first hitting her left knee, then her right elbow, and then her right knee. Her husband helped her up, and though she was startled, they continued to Westlake Hospital. However, five minutes after arriving there, Claimant's arm started hurting badly, so they walked back home using 12th Avenue, and her husband drove her to Gottleib Hospital to see an orthopedic surgeon she knew there.

The Injuries

At the hospital, Claimant was given medication for pain, and the X-rays taken revealed that her right elbow was shattered and also that her right radius was broken and separated. The next morning Dr. Paul Prince performed surgery on Claimant: the radial fracture was wired together; a titanium plate and nine screws were inserted in her right arm to keep the pieces of the bone in the elbow together; and her arm was casted. During the 6 to 8 weeks that Claimant's arm was in a cast, she had to see Dr. Prince for a consult every week. Then in July, Claimant had to start physical therapy. She was in physical therapy twice a week for five months. She was also given a home exercise program that she finished by summer 2003, although she still does some of the exercises when her arm troubles her.

When Dr. Prince discharged Claimant from his care in January 2003, he instructed her not to lift too many heavy objects and that if something bothered her, to use her left hand and arm instead. Claimant testified that since her injury, her right arm has a slight permanent bend at the elbow. Claimant, who has been working as a full-time accounting clerk since 1988, also stated that sometimes her elbow still gets tired when she performs job duties such as typing and at home, she still needs her husband's help getting ready and sometimes has a hard time turning door knobs. Her husband testified that Claimant still "can't do a lot of things" such as carry a gallon of milk, carry grocery bags, vacuum, or open and close car doors or trunks.

The Cause of the Incident Soon after Claimant had been discharged from the hospital, she and her husband returned to the curb at 11th Avenue and Chicago Avenue to determine what caused her fall.

Using a measuring tape he brought, Robert Ellerbrook determined that the curb was between 2 and 2 ½ inches higher than the sidewalk along Chicago Avenue that it abutted. In April 2003, Claimant hired a photographer to take photographs of the curb showing the difference in height. Nine of these photographs were admitted into evidence.

Ralph Sorce, currently Building Commissioner for the Village of Melrose Park, identified the curb and portion of abutting sidewalk in Claimant's photographs as within the State's right of way along Chicago Avenue. He testified that sometime between 2003 and 2004, when he was an assistant to the Director of Public Works, he was asked to do a street inspection and determine under whose jurisdiction the intersection at 11th Avenue and Chicago Avenue fell. His investigation revealed that the State had a right of way onto the [*135] sidewalk that went slightly farther than the northern and southernmost edges of the sidewalks along Chicago Avenue.

James Stumpner, Bureau Chief of Maintenance for Illinois Department of Transportation (IDOT) testified that he was responsible for maintenance activities for District 1 (Cook County and the five collar counties). In his some 12 years at that position he had never sent out a work crew to repair a sidewalk along a State owned roadway because that role was always delegated to the municipalities. Stumpner explained that the State would always enter into construction agreements with municipalities stipulating that the sidewalks over which the State had a right of way would be built and maintained by the municipality.

He was unable to locate such a construction agreement between Respondent and the Village of Melrose Park regarding the State's right of ways along Chicago Avenue.

Despite that, he contended that if he or any of his crew noticed any defect in the sidewalk along Chicago Avenue, they would never perform any repairs and would instead notify the Village of Melrose Park. With respect to the curbs that abutted the sidewalks along State owned roadways, however, he stated the State was responsible for repair and maintenance.

When Stumpner was shown the photographs of the curbing in question, he stated that he did not see any defects. He stated that when new curbing was installed, it would be level with the street and abutting sidewalk. The difference in height between a sidewalk and a curb that might occur later would most likely have been attributable to the sidewalk "settling." He conceded it was possible for this settling to occur after new curbing had been installed.

Sharon Watson, IDOT litigation supervisor for District 1, stated that after the incident., she was tasked with investigating whether any complaints were received regarding the intersection prior to the date of the incident. Her investigation did not uncover any such complaints.

ANALYSIS

To prove negligence, a claimant must establish the following: the existence of a duty that defendant owed a plaintiff; the defendant's breach of that duty; and that the breach proximately caused the plaintiffs damages. Estate of Johnson by Johnson v. Condell Memorial Hospital, 119 ILL.2d 496 (1988). Generally, one owes a duty of ordinary care to guard against injuries to others that may result as a reasonably probable and foreseeable consequence of negligent conduct. Karas v. Strevell, 369 Ill.App.3d 884, 889 (2nd Dist. 2006). As part of this duty, the State must protect others from dangerous conditions on its premises. See Van Der Heyden v. State, 48 Ill.Ct.Cl. 341 (1996); Wilson v. State, 41 Ill.

Ct. Cl. 50 (1989).

Here, Claimant argues that Respondent breached its duty of reasonable care because the curb she tripped over was about 2½ inches higher than the adjacent sidewalk on which she was walking. Respondent acknowledges that it maintained Chicago Avenue and that it had a right of way at the intersection of Chicago Avenue and 11th Avenue that included the curb Claimant tripped over. However, Respondent argues that it owed no duty to Claimant because, with respect to State owned roadways running through municipalities, [*136] Court of Claims precedent holds that that the municipalities are responsible for maintaining the sidewalks along such roadways and not the State of Illinois.

But as Claimant's attorney articulated in his rebuttal at the hearing, Claimant's claim pertains to the curb, not the sidewalk. At the hearing, although James Stumpner clearly stated on several occasions that Respondent was not responsible for maintaining the sidewalks alongside its roadways, he also stated unequivocally-several times during the hearing-that Respondent was responsible for maintaining the curbs that abutted its roadways. Specifically with respect to Chicago Avenue, he stated that Respondent was responsible for maintaining all the curbs along Chicago Avenue by 11th Avenue. Thus, with respect to the curb, Respondent owed a duty of reasonable care to Claimant, and if the curb constituted a dangerous condition, then Respondent had a duty to protect Claimant from it.

Based on the photographs in evidence, there was nothing about the curb itself that was defective or dangerous - nor does Claimant offer any evidence supporting that it was.

Further, the height difference of 2 to 2½ inches between the curb and the sidewalk depicted in the photographs appears slight and not dangerous. James Stumpner was shown one of these pictures and asked if he saw any defects in the curb, and he stated that he did not.

Sharon Watson testified that there were no complaints on file regarding the curb prior to Claimant's fall. The photographs in evidence reflect that the entire curb abutting the sidewalk on which Claimant and her husband were walking was between 2 and 2½ inches higher, not just the portion Claimant tripped over. Yet only Claimant, not her husband who also walked without incident over the curb onto the street, fell after her foot hit the curb.

The sum of these facts in the record does not support a finding that it was more probable than not that the curb constituted a dangerous condition.

Even if the curb did constitute a dangerous condition, it is hardly one of which we could expect Respondent to have been aware. The photographs in evidence show that from the road, the difference in height between the sidewalk and the curb is undetectable. For anyone from IDOT to notice the height difference, they would have to inspect all sidewalks which abut the curbs of State roadways. Requiring IDOT employees to inspect every curb along every State owned roadway is beyond burdensome. See Bahl v. State, 49 Ill.Ct.Cl. 120 (1997) (Declaring that the State is not an insurer of the safety of all persons traveling on its property); Lyons v. State, 39 Ill.Ct.Cl. 192 (1987) (Holding that the State is not required to undertake extraordinarily burdensome inspections or maintain its property in such condition that patrons may wander at will over each and every portion thereof).

Taking into account all of these factors, we find that Claimant has failed to prove by a preponderance of the evidence that Respondent was negligent. Claimant's claim is therefore denied.