Kathryn Wolski and Steven Wolski v. State of Illinois

OPINION

GAGLIARDO, J.

Claimant Kathryn Wolski brings her personal injury claim seeking compensation for damages suffered when she was shocked by a hand dryer at the southbound Railsplitter rest stop off I-55 on December 27, 2008. Claimant Steven Wolski, husband of Kathryn Wolski, brings a loss of consortium claim. A hearing was held before a Commissioner and testimony was presented by Kathryn and Steven Wolski, Tom Kehoe, Kathryn Wolski’s son, Kristin Hammer, Steven Wolski’s daughter, Sean Stinnett, an IDOT engineering technician, Dennis Smith, a Senior Executive Engineer for World Dryer Corporation, and from Dr. Stephen Behnke, Dr. Thomas Garrity, and Dr. Eugene Lopez attesting to damages suffered by Mrs. Wolski.

FACTUAL BACKGROUND

On December 27, 2008, Claimant Kathryn Wolski and her family were driving to St. Louis from Chicago when they stopped at the southbound Railsplitter rest stop off I-55 to use the restroom. After washing her hands, Mrs. Wolski went to the hand dryer. She pushed the power activation button to turn the hand dryer on and saw an electrical arc come from the dryer nozzle to a ring on her right hand. The next thing she remembered was the sound of her own screams as she was pressed against the wall opposite the hand dryer. She was able to leave the bathroom with some support but complained of an intense burning in her right ear and the soles of her feet as well as pain in her right shoulder.

Mrs. Wolski had her husband, Claimant Steven Wolski, drive her to a nearby hospital where she was treated for electrical shock and then discharged. Days later, after she returned home to Chicago, Mrs. Wolski complained to her primary care physician, Dr. Stephen Behnke, about pain on the right side of her body (including her right arm, shoulder, and leg), vertigo, and related nausea and vomiting, which had persisted since the shock. She then underwent an MRI that revealed damage to her right rotator cuff muscles as well as irreparable trauma to her inner ear that affected both her hearing and balance.

According to her testimony, Mrs. Wolski’s shock has had severe and permanent repercussions and has left her dependent on others for many necessary daily tasks. She has frequent dizzy spells accompanied by severe nausea from various triggering events, including movement in her peripheral vision, cacophonous noises, changes in altitude, and simply turning [*132] or tilting her head. Due to the permanent nature of her injury, Mrs. Wolski must perform a therapeutic balancing regimen daily to maintain her ability to perform basic movements such as walking.

Mrs. Wolski also suffers from severe tinnitus, or a ringing of the ears. Consequently, she requires the constant aural distraction of television accompanied by a white noise generator, if absent Mrs. Wolski’s tinnitus may become so overpowering that she panics. Mrs. Wolski is only able to sleep intermittently and rarely sleeps through the night. Further, her rotator cuff tear ultimately required surgery and has left her with limited range of motion in her right arm.

Dr. Eugene Lopez, the orthopedist who treated Mrs. Wolski for the rotator cuff tear, opines that Mrs. Wolski injured her rotator cuff after getting shocked - acknowledging that when the shock caused her to be jolted into the wall across from the dryer, her shoulder hitting the wall was a competent cause of the rotator cuff tear. Further, Dr. Thomas Garrity, the otolaryngologist who treated Mrs. Wolski for hearing loss, tinnitus, vertigo, and vestibular dysfunction, opined that these conditions were caused by the electrical shock injury and that the tinnitus, vertigo, and vestibular dysfunction are likely permanent conditions.

Both Steven and Kathryn Wolski provided testimony in support of Steven’s claim for loss of consortium. They each testified that they had an intimate romantic relationship before the accident. They would frequently go on dates, had a robust sex life, and would regularly go on vacations with other couples. Kathryn and Steven were also jointly involved in various team sports. Since the accident, Kathryn’s vestibular issues have precluded any possibility of activities involving movement or loud noises, and the intense nausea that accompanies any flight (or longdistance car trip) has made vacationing impossible. Both Claimants attested to a marked decline in the quality of their sex life; even when Kathryn feels well enough to have sex, any sudden movement or turn of the head during the act (which must also be accompanied by a television at full volume and a white noise generator) could result in another bout of intense nausea and vomiting.

Testimony was also offered of Dennis Smith, Senior Executive Engineer at World Dryer Corporation (the manufacturer of the hand dryer in question). Pursuant to his duties as Senior Executive Engineer, he investigated the claim regarding Mrs. Wolski getting shocked by the hand dryer at the Railsplitter off I-55. As of the date of his investigation he had been conducting such investigations for World Dryer Corporation for around twenty years. His investigation revealed several problems with the hand dryer.

He observed the first problem when he arrived at the Railsplitter to conduct a field inspection of the machine. After turning the circuit breaker off, and taking off the machine’s cover, he still measured 20 volts of electricity. Smith explained that this was unusual because shutting off the circuit breaker should have cut off all electricity to the machine. He did not conduct further testing regarding the source of the 20-volt current but stated that it had to be due to a crossed wire from a feed somewhere in the facility.

The dryer was then taken to his lab, where he found several more problems. First, the dryer was wired backwards: the neutral wire was connected to where the hot wire should have [*133] been connected, and the hot wire was connected to where the neutral wire should have been connected. Consequently, even when the machine was not turned on, the hot wire was always hot and carried a live current of 120 volts.

Second, Smith testified that if the dryer’s cover was slightly moved, it would short at the location of the heating element (a heating coil surrounded by a ceramic cruciform) - releasing loose electric current that could shock somebody. Smith explained that the reason for the shorting was a broken ceramic cruciform, the purpose of which was to hold the heating coil in place and insulate it from the dryer housing. With the cruciform broken, the heating coil, made of nickel chrome wire, “was basically a loose cannon, and any movement on the dryer” could cause the heating coil to come into contact with metal components of the dryer and cause a short. He further explained that the cruciform had been broken by the dryer’s fan housing; and the reason it was broken by the dryer’s fan housing was because the cruciform had been improperly installed.

Third, Smith testified that the dryer was not properly grounded. The grounding wire was not secured with the original, industry-standard grounding screw - which was customarily colored green so people would know it was a grounding screw. The replacement, which was not green, had the wrong kind of thread, did not have a captive washer to secure the wire, and had a very small head so that wire could not be properly secured under it. Consequently, the grounding wire was only loosely connected. Smith conducted tests in the lab on the ground connection and confirmed it was poor. Smith explained that a proper ground connection was an essential safety feature. In a properly grounded dryer, the current set loose by the short would flow through the ground connection and kick off the circuit breaker, thereby breaking the circuit and preventing the risk of electric shock from the short.

Mr. Sean Stinnett, the IDOT engineer responsible for the maintenance of the hand dryer in question, also presented testimony. Notably, Mr. Stinnett admitted that he had no formal training in electrical repair and that IDOT had not provided such training on the job. Mr. Stinnett admitted that he did not check the hand dryers regularly, but did so whenever he was called in to fix something in the women’s bathroom. He asserted that he had received no notification from either the subcontractor used to clean the restrooms or other IDOT employees that the dryer was not working properly.

Furthermore, Mr. Stinnett stated that he had repaired the hand dryer some six months before the accident, when the hand dryer’s heating element had a broken cruciform. Mr. Stinnett testified that he put in the new heating coil and cruciform in identical manner as the prior had been hooked up. During this repair, Mr. Stinnett did not test the drying unit for safety and did not notice or change the loose grounding wire. Although Mr. Stinnett was not the person who switched out the proper grounding screw, IDOT admitted that it had switched out the green grounding screw originally in the dryer with a junction-box screw at some point in the past.

[*134] ANALYSIS

Since Steven Wolski’s claim stems from his wife’s negligence claim, we will first address Kathryn Wolski’s claim for negligence and then address Steven Wolski’s claim for loss of consortium.

COUNT I - CLAIMANT KATHRYN WOLSKI’S NEGLIGENCE CLAIM Negligence and Duty

To prove a claim of negligence, a claimant must prove the following: the respondent owed her a duty; the respondent breached that duty; and that the respondent's breach proximately caused her damages. Estate of Johnson by Johnson v. Condell Memorial Hospital, 119 Ill. 2d 496, 503 (1988). The State is not an insurer of the safety of all who enter upon premises maintained by the State. Hamby v. State, 31 Ill. Ct. Cl. 487, 488 (1976). However, the State does owe a duty to members of the public to use reasonable care in maintaining its premises in a reasonably safe condition. Id.

Breach

Said duty of reasonable care is breached when the State had actual or constructive notice of a dangerous condition on its premises. Claimant must establish that Respondent had either actual or constructive notice of the dangerous condition alleged. See Peterson v. Illinois Department of Natural Resources, 61 Ill. Ct. Cl. 274, 278 (2009).

Here, the hand dryer clearly constituted a dangerous condition. Dennis Smith testified that with the cruciform broken, the heating coil “was basically a loose cannon, and any movement on the dryer” could cause the heating coil to come into contact with metal components of the dryer and cause a short. To make matters worse, the dryer was not grounded properly - which means there was no failsafe to defuse the dangerous rogue electrical current released by the short. The hand dryer was an accident waiting to happen.

Further, we find that Respondent had actual notice of this dangerous condition since it is undisputed that Respondent’s agents carried out the very actions that rendered the hand dryer dangerous - Respondent’s agents replaced the grounding screw with an improper one and incorrectly installed the cruciform.

This takes us to whether Respondent’s installation of the cruciform and the replacement grounding screw constituted a breach of its duty to use reasonable care in maintaining its rest stops. The test for determining whether there has been a breach of duty is the reasonable person standard. Haymes v. Catholic Bishop of Chicago, 41 Ill. 2d 336, 339 (1968). This is an objective test that asks the Court to determine whether, under circumstances similar to those shown by the evidence, the respondent either failed to do something that a reasonable and careful person would have done or respondent did something that a reasonable and careful person would not have done. Id.

[*135] In general negligence cases, experts are not needed to establish what a reasonable, careful person would or would not do under the facts. However, evidence regarding the conformity to custom and usage may be considered in determining whether due care has been exercised in a given case. Denniston v. Skelly Oil Co., 47 Ill. App. 3d 1054, 1067-68 (3rd Dist. 1977).

Here, Mr. Smith - a Senior Executive Engineer who had been investigating injury claims received by World Dryer Corporation for twenty years - testified that the cruciform was broken because it was installed incorrectly. Respondent’s employee, Mr. Stinnett, admitted that he had no formal training in electrical repair and was not provided any by IDOT. Thus, based on Smith’s uncontradicted testimony, we find that Respondent breached its duty to use reasonable care by incorrectly installing the cruciform.

Smith also testified about the importance of having a proper grounding connection for an electrical circuit. Even Stinnett agreed that a grounding connection is essential to keeping an electrical appliance safe and preventing electrical shocks. Yet the screw used to secure the grounding wire was not the correct grounding screw because it had the wrong thread, it did not have a captive washer to secure the grounding wire, and the head was too small to properly capture the grounding wire. Consequently, the grounding wire was only loosely connected. Further, it should have been obvious that this was not a proper grounding screw because it was not green, as is the custom with grounding screws. Stinnett fully acknowledged that a grounding screw was usually green. The use of the wrong screw as a grounding screw resulted in a poor ground connection, which was confirmed as poor in lab tests Smith conducted.

We find that a reasonable person would know that a grounding screw was important and that the replacement screw used by Respondent was not an appropriate grounding screw. Thus, Respondent also breached its duty of reasonable care by installing the incorrect screw as a grounding screw.

Proximate Cause

Proximate cause is any cause which, in natural or probable sequence, produced the injury complained of. Harry W. Kuhn Redi-Mix Concrete v. State, 45 Ill. Ct. Cl. 33 (1993). It need not be the only cause or the last cause or the nearest cause. Id. It is sufficient if it occurs with some other cause acting at the same time, which, in combination with it, causes the injury. Id. The term “proximate cause” encompasses two distinct requirements: “cause in fact” (or actual cause) and “legal cause.” Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455 (1992).

Respondent’s negligent conduct will be considered the “cause in fact” of an injury if it was a material element or substantial factor in bringing about the injury; but for the negligent conduct, the injury would not have occurred. Abrams v. City of Chicago, 211 Ill. 2d 251, 258 (2004). Legal cause is essentially a question of foreseeability; a negligent act is the legal cause of an injury if the injury is of a type that a reasonable person would see as a likely result of his conduct. Lee v. Chicago Transit Authority at 456.

Here, the Court finds that Respondent’s improper installation of the cruciform and installation of an improper grounding screw were the cause in fact of Mrs. Wolski’s injury. Had [*136] the cruciform been installed correctly, it would not have been broken by the fan housing unit, and the heating coil would not have come into contact with metal components of the dryer to cause a short. Thus, but for the incorrect installation of the cruciform, there would have been no electrical short releasing 120 volts of electricity. And but for the installation of the incorrect grounding screw, there would have been a proper ground connection, and the electricity would not have left the machine and delivered Mrs. Wolski the shock that directly caused lasting injury to her inner ear and right shoulder.

Likewise, the Court finds that Respondent’s negligence is the injury’s legal cause. An improperly grounded dryer that shorts upon slight movement of its cover due to an improperly installed cruciform poses a foreseeable risk exactly like the electrical shock that Mrs. Wolski suffered. The Court similarly finds that the lasting damage inflicted upon Mrs. Wolski was an entirely foreseeable consequence of receiving an electric shock.

Therefore, we find that Claimant Kathryn Wolski has met her burden in establishing the Respondent was negligent and responsible for her damages. The only remaining issue is the amount of damages suffered by Mrs. Wolski. Testimony from Claimants, their children, and Mrs. Wolski’s treating physicians has clearly shown that Mrs. Wolski suffered a grievous injury that will have an undeniably debilitating effect on her ability to function and enjoy a normal life.

She has a limited range of motion in her right shoulder. The tinnitus, which manifests itself as a loud, screeching sound in her ear, causes her difficulty sleeping - to the extent that she seldom wakes up in the morning in the same bed as her husband. The vestibular dysfunction significantly affects her balance and causes constant and frequent dizziness. Mrs. Wolski often has to hold onto things when walking - just to keep her balance. This loss of balance has caused her to fall multiple times. Once, she fell down the stairs and broke her tailbone.

Before the shock, this was an active woman who regularly played in co-ed sports leagues, went dancing, went out to dinner and movies, and went on couples’ vacations with friends. But now, because of her vestibular dysfunction and associated vertigo, she has difficulties conducting many daily activities like walking, driving (she has driven only three miles since the injury), showering, sleeping, watching a movie, babysitting her grandson, and engaging in various activities with her husband. Given the extent and nature of Claimant’s injuries - and their likely permanence - we find that Claimant is entitled to the statutory maximum amount of $100,000.

COUNT II - CLAIMANT STEVEN WOLSKI’S LOSS OF CONSORTIUM CLAIM

The general theory behind loss of consortium is that a spouse may recover for loss of consortium where his spouse is injured due to the negligent acts of a third party. Sostock v. Reiss, 92 Ill. App. 3d 200, 202 (1st Dist. 1980). The basis for recovery for loss of consortium is interference with the continuance of a healthy and happy marriage and injury to the conjugal relation. Monroe v. Trinity Hospital-Advocate, 345 Ill. App. 3d 896, 899 (1st Dist. 2003). Consortium, however, includes, in addition to material services, elements of companionship, felicity and sexual intercourse. Dini v. Naiditch, 20 Ill. 2d 406, 427, 170 N.E.2d 881, 891 (1960).

[*137] Here, as set forth above, Steven Wolski’s wife was injured due to the negligent acts of IDOT. Further, there is no question that Steven and Kathryn have been and are currently married. Testimony from the Wolski household, including Kathryn’s son and Steven’s daughter indicated that before the shock Kathryn was a vivacious, active woman with whom Steven was able to enjoy all life had to offer.

The shock, however, rendered Kathryn unable to do many of the day-to-day activities necessary in modern life. Although Steven testified that he still loved Kathryn and took comfort from her, he recognized that her injuries have taken a severe toll on the health of their marriage. Steven’s constant concern for Kathryn’s safety and health led him to quit his job and find another with enough flexibility to leave him available should Kathryn have another emergency. While they still take comfort in one another’s presence, Kathryn can no longer participate in many of the activities which they enjoyed together. Moreover, Kathryn’s constant sickness has dramatically decreased the couple’s ability to enjoy sexual relations.

The Court finds that given the permanence and severity of Kathryn’s condition, Steven has and always will be significantly deprived of his wife’s support, companionship and relations. Therefore, we find that Steven Wolski is entitled to the maximum award of $100,000 for his claim of loss of consortium.

WHEREFORE, Claimant Kathryn Wolski is awarded the statutory maximum of $100,000 and Claimant Steven Wolski is awarded the statutory maximum of $100,000.