Kevin Park v. State of Illinois

OPINION

BIRNBAUM, CJ.

Kevin Park (“Claimant”) brings this action against the State of Illinois, Board of Trustees of Chicago State University (“CSU” or Respondent). Claimant filed the Complaint on January 15, 2016, alleging that he suffered injuries on or about March 9, 2015, when he slipped and fell on ice that accumulated on a sidewalk located on CSU’s campus. Claimant alleges that his injuries were incurred as a direct result of negligent acts or omissions by Respondent. A hearing on the merits was held on August 23, 2018 before Commissioner Kiley. The parties filed posthearing briefs on October 5, 2018.

FACTS

Undisputed Facts

On March 9, 2015, Claimant was a student attending CSU. On that date, Claimant drove his car to campus to attend class. Claimant parked in the student parking lot on CSU’s campus located next to a building referred to in testimony as the Robinson Building. To exit the parking lot, Claimant climbed a flight of stairs and then proceeded down a concrete sloped sidewalk.

Next to that sloped sidewalk, on what would have been the Claimant’s right-hand side, was a median filled with gravel. At the end of that sloped sidewalk, Claimant had to turn right to proceed on a sidewalk that ran parallel to a road (the “Subject Sidewalk”). All along the Subject Sidewalk, the land next to the Subject Sidewalk on the opposite side of the roadway was elevated, with a slope leading down to the Subject Sidewalk. The sloped median next to the Subject Sidewalk was filled with grass, with the exception of other sidewalks leading down to the Subject Sidewalk. The only portion of the median that was filled with gravel was next to the sloped sidewalk that Claimant traversed leading down to the Subject Sidewalk, next to the student parking lot. Claimant has been using the same route from the student parking lot since at least the fall of 2014.

It was at this point, right below the gravel median that Claimant slipped on ice and fell, causing serious injury to his ankle.

[*175] Testimony and Evidence

The deposition testimony of Monique Horton was entered into evidence by stipulation of the parties. Ms. Horton is the interim Director of Facilities and University Services at CSU. Ms. Horton testified that the Subject Sidewalk on which Claimant fell is maintained by CSU, and that maintenance includes the salting and removal of snow. Ms. Horton also testified that the grounds crew knows to look for ice on the sidewalks of the campus because of the danger it poses to pedestrians.

The deposition testimony of John Batson (“Batson”) was entered into evidence by stipulation of the parties. Batson has been employed by CSU as a patrolman for approximately 13 years. Batson testified that he did not have an independent recollection of the events of March 9, 2015, and his testimony regarding the events was based solely on the report he completed regarding the incident.

Batson testified that after Claimant was taken to the hospital, he went to the area where Claimant fell and took pictures of the area. Those pictures were entered into evidence as part of Joint Exhibit 3, and Claimant’s Exhibit D.

Batson testified that if he noticed ice in the area where the incident occurred, he would have noted that in his report and called in the grounds crew to salt the area. Batson also testified that if Claimant had mentioned ice being present, he would have included it in his report. The report prepared by Mr. Batson does not mention ice being present at the location where Claimant fell, nor does the report include any statements from Claimant mentioning ice. The report does not indicate that Batson notified the grounds crew to visit the area and apply salt.

Wayne Mosley (“Mosley”) testified that he has been employed at CSU in the grounds crew for about 40 years, and since 1995 has been the ground crew foreman. The grounds crew consists of six to seven people, and the shift starts at 7:00 a.m. In the winter months, the grounds crew will start the day by surveying campus grounds for accumulation of ice or snow.

Mosley testified that he assisted with laying the gravel on the median leading down to the Subject Sidewalk. In the past few years Mosley laid down more gravel on the slope called “screening,” consisting of a white powder made up of very small rocks that soak up water. The purpose of the screening was to make the ground harder, thus preventing ruts when vehicles pass over the area.

Mosley testified that the sloped area where the gravel was laid was a high traffic area used heavily by, not only pedestrians, but trucks and cars. He noted vehicles often use the wide sidewalks on campus to get from one point to another. He was asked to lay gravel in the area of the sloped median because cars and trucks were traveling over the median and dragging mud into the street. Mosley testified that he suggested, approximately twenty to thirty years ago, that the portion of the median filled with gravel be replaced with black top.

Mosley was not qualified as an expert or opinion witness. However, Mosley testified that water seems to soak into the grassy areas of the median more than the gravel sloped area of the [*176] median, and that water tends to travel down the gravel sloped area, across the sidewalk below it, and into the street. Mosley also testified that water runs down the grassy-sloped area onto the sidewalk.

Mosley testified that on a daily basis, twenty to thirty student cars are parked in the student parking lot next to the Robinson building, and these students would often proceed from the parking lot down the Subject Sidewalk, as Claimant did.

Mosley testified that in his capacity as grounds crew foreman he would receive complaints about dangerous conditions on campus from students, faculty, and staff. He testified that some of those complaints would consist of individuals slipping and falling on the campus grounds. However, Mosley testified he had not previously received a complaint about ice on the Subject Sidewalk where Claimant fell.

Mosley testified that he has no reason to believe that the grounds crew did not salt the campus on March 9, 2015. Typically, the grounds crew will salt first thing in the morning, depending on weather conditions. If there is snow on the ground, that is typically an indicator that the grounds crew should salt the sidewalks.

Claimant entered into evidence two pictures of the gravel slope and the section of the Subject Sidewalk where the fall occurred as Claimant’s Exhibits A and C. No testimony was provided as to when the pictures were taken, or what the weather conditions were at or around the time the pictures were taken. It appears that the portion of the Subject Sidewalk below the gravel slope had two distinct areas that are wetter than surrounding areas. However, the sloped sidewalk leading down to the Subject Sidewalk also appears to be wet, as well as other portions of the Subject Sidewalk.

Claimant’s Exhibit D is a blown-up version of a picture taken by Officer Batson shortly after Claimant fell in the area. In the picture, the area where Claimant fell (which Claimant marked with an “X”) is a black color. This color appears to be the result of both mud and or water running over the sidewalk. The picture also indicates the sloped sidewalk leading down to the Subject Sidewalk is also discolored, and sections of the Subject Sidewalk before and after the location where Claimant fell are discolored. No testimony was offered by any witnesses as to the why the sidewalks were black - which was not the natural color of the cement sidewalks.

Claimant testified that March 9, 2015 was a Monday, and when the incident occurred he was on his way to a 9:00 a.m. class. Claimant testified that it was cold that morning. He drove his car to the student parking lot next to the Robinson building. When he exited the car, there was no ice in the parking lot, and the surface was dry. He testified that there was no ice on the stairs leading out of the parking lot, but there was snow on the ground in the grassy areas of the campus.

Claimant turned left to walk down the sloped sidewalk toward the Subject Sidewalk. There was no ice on the sloped sidewalk. When he got to the bottom of the sloped sidewalk, he turned right to start walking down the Subject Sidewalk, when he slipped. His body fell on top of [*177] his right ankle. Claimant testified that his fall was caused by black ice on the sidewalk, which he realized after he was laying down on top of the ice. He did not notice any ice before he fell.

While he initially believed he had sprained his ankle, he soon realized it was more serious and called for help. Two classmates arrived and carried him to the wellness center, which required the classmates to carry him down the Subject Sidewalk and further across campus. Claimant did not recall encountering any more ice on the way to the wellness center, but at the time he was being carried by his classmates. His classmates did not testify at hearing.

At the wellness center Claimant informed the nurse and Officer Batson what had occurred. His ankle was x-rayed, and it appeared that his fibula was broken. Claimant followed up with an orthopedic surgeon, Dr. Hilton at Illinois Bone and Joint Institute. Claimant had surgery on March 20, 2015, and rods were inserted into his ankle to assist with the repair of his bone. Claimant used crutches for “a few weeks” after surgery, and then used a walking boot for three to four months.

Claimant testified that he started physical therapy in July 2015, and it lasted about three months. Claimant continues to feel pain in his ankle when standing for long periods of time. He is still able to play basketball and do squat exercises in the weight room, although he wears a protective brace for these activities. Claimant still runs, but is sore in his ankle after runs. Claimant testified that he continues to ice his ankle three times a week. Claimant does not go on long hikes anymore because he does not believe he is ready for it yet.

On cross-examination, Claimant testified that on the day of the incident, he was heading to a biochemistry class that he attended four days a week. Claimant stated he was very familiar with the area of the Subject Sidewalk where he fell, and had never noticed any water or ice in the area previously.

Claimant’s testimony was impeached on cross-examination concerning whether or not he had been to Starved Rock since his injury. He testified at hearing that he had not been to Starved Rock since the injury, but in his March 23, 2018 deposition, Claimant testified that he had been to Starved Rock to go hiking in the summer of 2017.

LEGAL ANALYSIS

The standard applicable to this case was stated in Foss v. State, 61 Ill. Ct. Cl. 256, 258 (2009):

The State owed a duty of reasonable care in maintaining its property. To recover,

Claimant must establish by a preponderance of the evidence that Respondent

breached its duty of reasonable care and that the negligence of Respondent

proximately caused her injury. (Acme Carrier, Inc. v. State (1977), 32 Ill. Ct. Cl.

83). To show negligence, the Claimant must show that the State was negligent in

the maintenance of [its property] in that it had actual or constructive notice of a

dangerous condition. (Noonen v. State (1983), 36 Ill. Ct. Cl. 200); (Nolan v. State

(1983) 36 Ill. Ct. Cl. 194). The State is not an insurer of the safety of invitees, but [*178]

must only exercise reasonable care for their safety. (Fleischer v. State (1983), 35

Ill. Ct. Cl. 799).

Claimant failed to prove that Respondent had actual or constructive notice of a dangerous condition. The alleged dangerous condition in this case was the ice on the sidewalk where Claimant fell. There was no evidence that the State had actual notice of the condition. Constructive notice is a difficult burden to meet. To prove constructive notice, a claimant must show that the “defect was substantial enough and existed for such a length of time that reasonable persons would conclude that immediate repairs should be made.” Id. (quoting Aetna Casualty v. State, 37 Ill. Ct. Cl. 179, 181 (1984)). There was no direct or circumstantial evidence as to how long the ice may have been present on the Subject Sidewalk. No witnesses testified that they had seen ice at this particular location either that day or any previous day. There was no evidence presented as to the weather conditions at the time of Claimant’s fall, or in the hours before his fall, other than Claimant’s testimony that it was cold that morning. Thus, there is insufficient evidence to prove that State had actual or constructive notice of the condition.

Claimant’s central argument, however, is that Respondent created a dangerous condition when it laid gravel on a sloped surface leading down to the Subject Sidewalk. From the testimony it can be adduced that this was done at least twenty years before Claimant’s fall. In subsequent years, additional gravel and screening was laid. Claimant argues that this made the surface less porous than a grass surface. This, Claimant argues, caused water to flow over the Subject Sidewalk, resulting in an unnatural accumulation of ice. This unnatural accumulation of ice was a dangerous condition that Claimant argues caused his fall.

Claimant did not present any opinion testimony establishing that the gravel slope created an unnatural accumulation of ice. Claimant argues that Wayne Mosley testified that Exhibit C showed water migrating down the gravel slope and pooling. However, Mosley’s testimony on this point was unclear and equivocal. At various points in his testimony, Mosley refers to portions of the picture as screening, and others as water. It is not clear from a review of Exhibit C whether or not there is water in the picture. There was no testimony from the individual who actually took the picture as to what is depicted, or the conditions under which the picture was taken. Exhibit C is thus not persuasive evidence that the gravel slope created a dangerous condition.

Other pictures entered into evidence likewise do not establish an unnatural accumulation of ice. Persuasive testimony was not offered by individuals as to what was depicted in the pictures, and the pictures themselves do not establish convincingly that water flowing over the location where Claimant fell was unnatural. In fact, it is unclear why the gravel slope would have created any more water flow over the Subject Sidewalk than the concrete sloped sidewalk Claimant traversed down to the Subject Sidewalk before he fell.

Even in cases where expert testimony is offered as to how the State created an unnatural and dangerous condition, claimants do not always succeed. In White v. State, 38 Ill. Ct. Cl. 1 (1984), a student slipped on a sidewalk on CSU’s campus on ice and snow. At the hearing, the student presented expert testimony in support of the argument that the sidewalk the student was on was not properly constructed and/or maintained, causing depressions to form in the sidewalk [*179] that allowed water to pool and then form ice. In denying the student’s claim, the Court held that while the sidewalk may not have been perfect; it did not represent a dangerous condition. In this case, there is no expert testimony concerning the construction or design of the gravel slope, and no sufficient basis on which to conclude the State created a dangerous condition.

Claimant cites the case of Lapidus v. Hahn, 115 Ill. App. 3d 795 (1983), for the proposition that a property owner is liable for injuries caused by ice that exists due to a condition created by the property owner. In Lapidus, the plaintiff was an apartment resident who fell on her front porch on what the Court concluded to be an unnatural accumulation of ice. In that case, there was testimony from multiple witnesses that the construction of the roof in question caused torrents or rain to cascade onto the porch at issue, and that depressions in the floor of the porch caused pools of water to form, that would then freeze. There was testimony that the landlord was informed of this problem on multiple occasions. There was also testimony that rain and snow fell the night before the incident, and that water was dripping down from the roof the day of the incident.

Unlike Lapidus, in this case there is no testimony from witnesses who had seen excess water flowing down the gravel slope at any time. There is no evidence that the construction of either the gravel slope or the sidewalk caused water to pool on the sidewalk. Not a single witness, including Claimant who walked in this same location on numerous occasions during the winter, testified that ice had previously accumulated at the location where Claimant fell. Wayne Mosley, who worked the grounds crew for CSU for approximately 40 years, was not aware of any prior incidents of individuals falling at the same location.

Claimant argues that snow likely melted the day before and became frozen overnight on the Subject Sidewalk. However, there is no testimony or evidence upon which to base this conclusion. There is no evidence as to the weather conditions in the days before the accident, or the day of the accident. The Claimant testified that it was cold that morning, but did not testify regarding the weather the day before his accident.

“When a plaintiff alleges that the design of a sloping surface created an unnatural accumulation of ice, there must be evidence presented of the dangerous nature of the slope, that the slope was the proximate cause of the plaintiff’s injuries and the landowner had notice of the defect.” Wells v. Great Atlantic & Pacific Tea Co., 171 Ill. App. 3d 1012, 1015-16 (1988). In this case, there was insufficient evidence as to the design of the gravel slope creating an unnatural accumulation of ice. Coupled with the fact that no witnesses testified that the gravel slope previously caused an unnatural accumulation of ice over the multiple decades that it has existed, the Claimant’s claim must be denied.

For the above stated reasons, the Claimant has failed to prove the claim by a preponderance of the evidence. It is hereby ordered that the claim is denied.