Christen Dinkha v. State of Illinois

OPINION

MCGLYNN, J. Dr. Christen Dinkha brings this claim against Respondent, UIC, for negligence in the operation and maintenance of the steam tunnel and grate system on campus. On April 1, 2010, Dr. Dinkha and her friend Dr. Patel were UIC dental students weeks away from graduation. They were walking on campus in front of the parking structure at Paulina and Taylor Streets near the UIC Dental School. They were accustomed to seeing steam arise from the grates over their four years at UIC. On this occasion, however, as Dr. Dinkha stepped on the grate the steam scalded her leg. Her leg blistered.

She sought assistance from one of her dental instructors. She then sought medical attention with her personal physician for second degree burns. By the next day she sought medical attention through an emergency facility. She later treated with a plastic surgeon who advised her that the scarring was permanent.

Dr. Patel testified that the day after the incident, she observed cones placed around the grate.

Complicating the matter for Dr. Dinkha, she was six months pregnant at the time and was quite stressed about the possibility of secondary infection to her baby and use of antibiotics and medication upon her unborn child.

Two employee experts testified for UIC. John Cleary testified that he was the UIC Chief Engineer at the time of the incident. His responsibilities included the heating and cooling of the east and west campuses through tunnel piping systems throughout the campus. Mr. Cleary’s supervisor, Jeffery Barrie, also testified. Mr. Barrie testified that at the time of the occurrence he was responsible for plant operations including heating, cooling, and electricity. The UIC employees described the system. Steam pipes run through underground vaults which are accessed by the engineering department through square metal grating. To gain access they use a tool to unlock the access grating. The underground pipes are constantly heated to approximately 450 degrees. The piping below the grate in question includes an eight-inch steam line, a six-inch condensate line and an inch and a half or two-inch-high pressure return line.

[*148] Mr. Cleary clarified that steam emanating from the grates is a normal occurrence and that people are allowed to traverse over grates as steam emanates from them. However, steam emanating from grates at the UIC campus should not be hot enough to burn people as they walk over them. It is Mr. Cleary’s aim as an employee of the University to ensure that there is no steam emanating from the grates that could burn potential passers-by. He also stated that the University has a responsibility to discover any issues that might cause steam to come out of the vaults that would be hot enough to burn a pedestrian walking over a grate.

Mr. Barrie stated that it is not acceptable to have steam hot enough to cause burns to people emanating from grates. Mr. Barrie also testified that part of his operation as an engineer for UIC included making the premises safe for not only other UIC employees, but pedestrians who may traverse the area. Mr. Barrie had no objection to pedestrians walking over grates located on the UIC campus, nor did he have any criticism of Dr. Dinkha doing so in this instance.

Mr. Cleary testified certain factors causing steam to emanate from a vault include a cooler outdoor temperature, a cracked pipe, a blown gasket, bad welding, and water leaking into the vault.

Mr. Cleary had received a report from an assistant that a flower bed near the area in question, which includes an underground watering system, leaked and flooded one of the vaults near the grate where Dr. Dinkha was scalded. Mr. Cleary initially testified that the leak occurred before this incident. He later testified that this leak occurred after the injury.

Mr. Cleary also testified to an incident occurring on the UIC campus in 2010 involving a grate or lid that blew off a grate. Although it is not known for certain what caused that occurrence, the “best guess” of the engineers who investigated the incident is that condensation caused a pipe to rupture. Mr. Cleary also recounted another incident that occurred approximately a year later on the UIC campus in which the parting of an expansion joint caused a vault’s lid to again be blown off.

Neither Mr. Cleary nor Mr. Barrie was aware of any other instance of a pedestrian burned by steam emanating from the UIC system.

ANALYSIS

Illinois courts look to the Restatement (Second) of Torts § 343 to set forth the “settled law regarding the liability of possessors of land to invitees.” Genaust v. Illinois Power Co., 62 Ill. 2d 456, 468, 343 N.E.2d 465, 472 (1976). The Restatement (Second) of Torts provides that a “possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.” Id § 343.

[*149] Claimant argues that the evidence in this case is sufficient to infer negligence on the part of UIC under the doctrine of res ipsa loquitur. A claimant seeking to rely on this doctrine “must plead and prove that he or she was injured (1) in an occurrence that ordinarily does not happen in the absence of negligence, (2) by an agency or instrumentality within the defendant’s exclusive control.” Heastie v. Roberts, 226 Ill. 2d 515, 531-32, 877 N.E.2d 1064, 1076 (2007). “The doctrine of res ipsa loquitur is not a separate legal theory but rather is a type of circumstantial evidence which permits the trier of fact to infer negligence when the precise cause of the injury is not known by the plaintiff.” Wilson v. Michel, 224 Ill. App. 3d 380, 386, 586 N.E. 2d 333, 337 (1st Dist. 1991). The doctrine’s application “in a given case is a question of law which must be decided in the first instance by the trial court.” Imig v. Beck, 115 Ill. 2d 18, 27, 503 N.E. 2d 324, 329 (1986).

UIC’s witnesses’ testimony establishes that UIC had exclusive control of the steam pipe and tunnel system including the grate. UIC employees had access to the tools/keys to access the vault/tunnel. Mr. Barrie testified that the grate was a “U of I grate.”

The other part of the res ipsa loquitur test is a more challenging analysis: whether the injury occurred as a result of an occurrence that ordinarily does not happen in the absence of negligence.

Mr. Barrie instructed Cleary and staff to conduct an investigation as to why the injury occurred. Mr. Cleary testified that they could not determine why in this isolated occurrence steam emanated from the grate so hot it caused second degree burns. They found no mechanical problem such as broken pipe, bad weld, leaking planter or the like. He opined that it could have been something of nature such as rain, ground water, moisture, unseasonable warm weather interacting with piping system to cause anomalous escape of scalding steam.

It thus appears the event of scalding steam was caused by either a mechanical deficiency which was not detected in the investigation, or rain, ground water or moisture interacting with the subterranean steam pipes on a warm day.

In Heastie v. Roberts, 226 Ill. 2d 515, 533-534 (2007), a fire started in an emergency room burning plaintiff. The Court observed that the source of the ignition has never been ascertained. 226 Ill.2d at 533. The Supreme Court then observed that the plaintiff is not required in his res ipsa loquitur claim to eliminate all causes of his injuries other than the negligence of the defendant. 226 Ill. 2d at 533-34.

In Heastie v. Roberts, 226 Ill. 2d 515, 531-32 (quoting Metz v. Central Illinois Electric & Gas Co., 32 Ill. 2d 446, 448-49) the Supreme Court described the nature and purpose of the doctrine of res ipsa loquitur:

“When a thing which caused the injury is shown to be under the control or management of the party charged with negligence and the occurrence is such as in the ordinary course of things would not have happened if the person so charged had used proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care. [Citations] This [*150] in essence is the doctrine of res ipsa loquitur, and its purpose is to allow proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.”

The Court then stated:

Consistent with this view, we have held that a plaintiff seeking to rely on the res ipsa doctrine must plead and prove that he or she was injured (1) in an occurrence that ordinarily does not happen in the absence of negligence, (2) by an agency or instrumentality within the defendant’s exclusive control. Gatlin v. Ruder, 137 Ill. 2d at 295, 148. Ill. Dec. 188, 560 N.E.2d 586. In setting forth the second element, some authorities speak of “management and control” rather than “exclusive control,” but the terms have come to be viewed as interchangeable. In either case, the requisite control is not a rigid standard, but a flexible one in which the key question is whether the probable cause of the plaintiff’s injury was one which the defendant was under a duty to the plaintiff to anticipate or guard against.

226 Ill. 2d at 531-532 The Supreme Court then further stated:

While reliance on the res ipsa doctrine may normally require that the injury can be traced to a specific cause for which the defendant is responsible, Illinois law also authorizes use of the doctrine where it can be shown that the defendant was responsible for all reasonable causes to which the accident could be attributed. * * * Similarly, Illinois law does not require a plaintiff to show the actual force which initiated the motion or set the instrumentality in operation in order to rely on the res ipsa doctrine. To the contrary, if the specific and actual force which initiated the motion or set the instrumentality in operation were known unequivocally, leaving no reason for inference that some other unknown negligent act or force was responsible, the res ipsa doctrine could not even be invoked. See Collgood, Inc. v. Sands Drug Col, 5 Ill. App. 3d 910, 916, 284 N.E.2d 406 (1972); see also 65A C.J.S. Negligence § 759, at 555 (2000) (“The res ipsa loquitur rule aids the injured party who does not know how the specific cause of the event that results in his or her injury occurs, so if he or she knows how it comes to happen, and just what causes it *** there is no need for the presumption of inference of the defendant’s negligence as afforded by the *** rule”).

226 Ill.2d at 538-39 (citations omitted).

In the matter at bar, UIC’s witnesses testified to explanations for the escape of scalding steam: either some mechanical failure or natural and foreseeable intrusion of rain or moisture into UIC’s vault interacting with the piping system as designed and maintained. In the latter case, UIC can foresee and warn against injury by placing cones, venting tubes or otherwise. If it is [*151] foreseeable that the combination of a warm day and rain seeping into the vault can produce scalding steam from the grates, UIC was under a duty to anticipate and guard against injury.

Accordingly, Claimant has established UIC was negligent.

DAMAGES

Dr. Dinkha’s reasonable and necessary medical bills incurred total $1,816.71.

Dr. Dinkha’s sustained a second degree burn on her shin measuring 5 by 8 centimeters.

The reasonable value of her damages for past pain and suffering described by her and Dr. Patel is $10,000.

Dr. Dinkha’s damages for loss of normal life relate to primarily her fear that an infection and/or use of antibiotics could adversely affect her fetus, and the stress and distraction during the final few weeks before her graduation of a challenging four year program. She is awarded $9,000 for this element of damages.

The Court agrees with Respondent’s suggestion for $2,000 for disfigurement in that Dr.

Dinkha did not show the scar to the Commissioner, only the older photographs.

Accordingly, the court finds for Claimant and against Respondent for a total of $22,816.17.