Janice Everingham v. State of Illinois

ORDER

KUBASIAK, J. THIS MATTER is before the Court on Respondent's Motion to Dismiss. Oral arguments were held on October 30, 2014.

NATURE OF THE CLAIM

On May 27, 2011, Janice Everingham, mother and best friend for Joshua Everingham, a minor ("Claimant"), filed a complaint, sounding in tort. Claimant alleges that on June 10, 2010, Claimant was on the premises located at the University High School parking lot, which Respondent possessed, operated, maintained and controlled. At that time, Claimant was riding his bicycle when the bicycle struck a hole on the premises, and as a result, Claimant sustained severe and permanent injuries. Specifically, as Claimant states in his deposition testimony, he was attending University High School at Illinois State University (ISU) as a summer student.

In between class during break, Claimant rode his bike to the Circle K gas station and got a snack. On his way back to school, Claimant was traveling with the rest of traffic when his bike got caught on a divot or a little strip that was lower than the rest of the pavement. As a result, Claimant sustained injuries.

Claimant alleges that Respondent's negligent acts and/or omissions in properly maintaining the premises proximately caused Claimant's injuries. Claimant seeks damages in the total amount of $100,000: $50,000 for medical expenses (past and future), $25,000 for loss of normal life, and $25,000 for pain and suffering. (See Second Amended Complaint.)

Respondent now moves for summary judgment asserting that Claimant cannot establish the existence of a genuine issue of material fact that Respondent had actual or constructive notice of a dangerous condition. Furthermore, Respondent claims that the condition was open and obvious and that the distraction exception does not apply.

ANALYSIS

A. Legal Standard: 735 ILCS 5/2-1005 Summary Judgment In order to grant Respondent's Motion to Dismiss, Respondent must be entitled to judgment as a matter of law because the pleadings, depositions, admissions, affidavits and other relative matters show that there is no genuine issue of material fact.

735 ILCS 5/2-

1005(c); Freeman v. State, 55 Ill.Ct.Cl. 329, 332 (2003). Respondent is liable in a negligence claim if Claimant can show that the State owed a duty of reasonable care to the Claimant, the State breached such duty, and that the breach was the proximate cause of the Claimant's injury. Sowizrol v. State, 51 Ill.Ct.Cl. 91 (1996).

While Respondent has a duty to maintain the parking lot in a safe condition for use by persons lawfully present, it is not an insurer of the [*181] 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).

Here, Respondent would be entitled to summary judgment if there is no genuine issue of material fact that Respondent had no prior notice, actual or constructive, of the alleged dangerous condition prior to the accident, which is necessary to show that it breached its duty to exercise reasonable care. Sowizrol, 51 Ill.Ct.Cl. at 97. Alternatively, if the defect was open and obvious, Respondent owed no duty to warn Claimant, and therefore did not breach any duty to Claimant. Hickman v. State, 55 Ill.Ct.Cl. 388 (2002) (citing Shields v. State, 47 Ill.Ct.Cl. 313 (1994)). Lastly, should this Court find that the defect was open and obvious, summary judgment should be granted if the distraction exception does not apply. American National Bank & Trust Co. of Chicago v. National Advertising Co., 149 Ill.2d.14 (1992).

B. Prior Actual or Constructive Notice Respondent claims that it was not aware that the area in question was dangerous because it did not receive actual notice that the area was a dangerous condition prior to June 10, 2010. Furthermore, it argues that it did not have constructive notice, which a claimant may prove by showing 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 the alternative, that warning signs should be posted." Bowley v. State, 52 Ill.Ct.Cl. 18, 21-22 (1999).

In oral arguments, Respondent stated that the University conducted inspections of the parking lot and was in fact aware of the condition that had been created over time.

However, Respondent never received complaints with regard to the condition nor were there any injuries or accidents with regard to the condition prior to June 10, 2010. This argument is supported by testimonial evidence from Claimant, Charles Scott, Executive Director of Facilities Management Parking and Transportation, and Steve Evans, the University High School's biology teacher who was promoted to Assistant Principal in 2013.

In contrast, Claimant argues that Respondent did in fact have both actual and constructive notice of the defective condition. Specifically, Claimant claims that actual notice was established through the testimonies of Mr. Scott and Mr. Evans. Mr. Scott stated that he was actually aware of the defect prior to June 10, 2010 and stated that he would have been aware of the defect more than likely months before the incident. He further described how the telecommunications line, which was there for years, caused for there to be a difference in height of the asphalt between the original asphalt and the area above the telecommunications line. Mr. Evans also described the indentation in the parking lot and stated that it was present prior to June 10, 2010. As such, Claimant believes actual knowledge of the indentation prior to June 10, 2010 establishes actual notice.

Claimant also argues that Respondent had constructive notice by analogizing these facts to this Court's decision in Buttacavoli v. State, 30 Ill.Ct.Cl. 233 (1975), where this Court found that the one-year existence of a defect in Roosevelt road around a manhole cover was a sufficiently lengthy period to charge Respondent with constructive notice. Claimant also cites Stojentin v. State, 55 Ill.Ct.Cl. 292 (1999), in which constructive notice is established through the length of time the defect has existed and/or the defect being so obvious that constructive notice should be imputed by the nature of the defect itself.

In particular, the State may be [*182] charged with constructive notice where, through the exercise of due diligence, a condition should have been discovered. Stojentin, 55 Ill.Ct.Cl. at 310. Claimant argues that in this case, the defect had been present for years, which Mr. Scott acknowledged, and that this established constructive notice. Claimant's position is that he has established constructive notice of the defect that caused him to fall and in the alternative, that there is a genuine issue of material fact whether the Respondent has constructive notice of the defect.

This Court agrees with Respondent. The testimonial evidence and oral arguments show that Respondent was aware of the condition, but was not put on actual or constructive notice that the condition was dangerous. Respondent never received any complaints nor was it aware of any injuries prior to June 10, 2010. In fact, Claimant had seen the condition and did not consider it hazardous. Accordingly, this Court finds that there is no genuine issue of material fact that Respondent did not receive any notice, actual or constructive, that warrants liability in this case.

C. Open and Obvious Condition and the Distraction Exception Respondent argues in the alterative that it owed Claimant no duty because the condition was open and obvious. See Hickinan, 55 Ill.Ct.Cl. at 388. In such cases, open and obvious conditions include those wherein the condition and risk are apparent to and would be recognized by a reasonable person exercising ordinary perception, intelligence and judgment in visiting an area. Bonner v. City of Chicago, 334 Ill.App.3d 481, 484 (1st Dist. 2002). Respondent argues that the condition was open and obvious because Claimant was aware of the cutout in the concrete prior to June 10, 2010, when he admitted that he noticed the condition but did not pay attention to it or consider it a hazard, Claimant, on the other hand, maintains that the photographs attached to Respondent's Motion for Summary Judgment show that the defect does not appear from certain angles. Claimant thus argues that the defect was not visible from the direction that he approached it. Alternatively, Claimant argues that should the Court find the defect open and obvious, the distraction exception applies to the open and obvious rule. Claimant cites American National Bank & Trust Co. v. National Advertising Co., 149 Ill.2d.14, in which the court found that an employee who had to watch his footing when stepping from the walk rail over the side of a ladder could not simultaneously look down at his feet and up at the power line.

Thus, the court concluded that the employer was still liable because the employee was distracted from the open and obvious condition. Likewise, Claimant asserts that he would have to watch traffic while riding his bicycle and could not simultaneously look down at his feet to avoid the defect.

Furthermore, Claimant argues that he is similar to the plaintiffs in Rexroad v. City of Springfield, 207 Ill.2d. 33 (2003), and Deibert v. Bauer Brothers Construction Company, 141 Ill.2d. 430 (1990), where the courts found it reasonably foreseeable that the plaintiff may fail to avoid the risk of the defect by becoming distracted or momentarily forgetful. Here, Claimant again claims that paying attention to the traffic in the parking lot could cause Claimant to become distracted or momentarily forgetful to avoid the risk posed by the indentation or defect.

However, Respondent argues that the distraction exception does not apply because it only applies when the person fails to avoid the open and obvious condition because he was [*183] distracted and this type of distraction would have been reasonably foreseeable by the defendant. Bonner v. City of Chicago, 334 Ill.App. 3d at 484-85. Furthermore, the exception has an additional requirement that the "landowner created, contributed to, or was responsible in some way for the distraction which diverted the plaintiffs attention from the open and obvious condition and thus, was charged with reasonable foreseeability that an injury might occur." Sandoval v. City of Chicago, 357 Ill.App.3d 1023, 1030 (1 st Dist. 2005).

In other words, it cannot be a distraction created by the plaintiffs own independent actions.

Id. at 1030-31 (holding that the distraction did not apply when the plaintiff failed to see the broken sidewalk because she was looking for her child).

We agree with Respondent on this issue as well. Claimant was well aware of the condition prior to the date of his injuries. Additionally, Respondent exercised no control over Claimant's use of his bicycle in the school parking lot and therefore could not have created, or contributed to the distraction that Claimant asserts.

IT IS HEREBY ORDERED that Respondent's Motion to Dismiss is GRANTED.