Steven Lader v. State of Illinois

OPINION

BIRNBAUM, CJ.

Steven Lader (“Claimant”) brings this action against the State of Illinois and the Illinois Department of Transportation (“State” or “Respondent”). Claimant filed his Complaint on December 18, 2015, alleging Respondent failed to maintain its property in a reasonably safe condition. Claimant alleges that because of Respondent's acts or omissions, he fell through an open manhole, suffering serious injury.

PROCEDURAL HISTORY

This matter was placed on general continuance on May 24, 2016, due to a pending Circuit Court action and, by agreement of the Parties, discovery proceeded while on general continuance. This matter was taken off general continuance on April 17, 2018, due to resolution of the related Circuit Court proceedings. Claimant received a payment of $80,000 as part of resolution of the underlying Circuit Court proceedings. The Parties are in agreement that any award in this proceeding will be subject to set-off in that amount.

On August 14, 2018, Respondent was granted leave to file affirmative defenses. Claimant then filed a motion on August 23, 2018, seeking leave to amend his Complaint to include allegations of willful and wanton conduct, which was granted. A hearing on the merits was held on September 14, 2018 before Commissioner Kiley. By agreement, the Parties filed post-hearing briefs. Respondent filed its brief on October 23, 2018, and Claimant filed its brief on November 14, 2018.

On December 4, 2018, Claimant filed a motion for leave to amend his prayer for relief in light of the General Assembly passing Senate Bill 248 on November 27, 2018.2 The State filed its response to this motion on December 21, 2018, and Claimant filed a reply brief on December 26, 2018. The Commissioner granted Claimant's motion for leave to amend his prayer for relief, but also granted the State’s request to reopen proceedings to conduct discovery on Claimant's damages, and to present additional evidence on damages. The Commissioner conditioned the reopening of proceedings upon a finding of liability.

This Bill changed the limitation in the Court of Claims Act on Claimant's possible award from $100,000 to

$2,000,000. The Bill was retroactive and applicable to all pending claims, including Claimant's whose action was

filed on or after July 1, 2015.

[*120] FACTS

Claimant's Testimony

Claimant testified that he is 67-years-old and has lived in the greater Chicago-land area since 1973. Claimant has been an avid hiker since he was a young man.

On the day of the incident, December 27, 2014, it was overcast with a mild temperature of about 40 degrees. Claimant decided to go hiking in a Cook County forest preserve. Claimant drove his car to a forest preserve located near Harlem Avenue and 151st Street. Claimant had previously hiked this particular forest preserve about seven times. When he parked his car, Claimant estimated it was between 2:00-2:30 p.m.

After parking his car, Claimant walked north on a trail he was familiar with. There are a number of different trails in this area, and Claimant intended to follow a path that would eventually circle back south to where he parked his car. After hiking for approximately two hours, Claimant was concerned about the setting sun, and that he would be on the trail with little to no light. He then saw a trail to his right going under Harlem Avenue. Claimant took that trail in the hope of finding a trail heading south along Harlem back to his car.

Claimant testified he did not simply turn around and walk back on the trail he was on because the trail was narrow with hazards such as rocks and tree roots, and the branches overhead made less light available as the sun set. The path Claimant had been on was a winding path, and Claimant said he was looking for a more direct route back to his car. On the east side of Harlem, Claimant testified there was no hiking path, but there was a “broad grassy strip” and ambient light that allowed Claimant to see better than he could on the hiking path he had been on. Further, Claimant testified that the headlights from traffic traveling on Harlem “illuminated my path even further.”

Claimant described the grassy strip as filled with uncut grass, making it soft to walk on. Claimant said he alternated between looking at the ground in front of him and looking at the short distances ahead of him. At some point, he suddenly felt his feet go out from under him. He fell approximately 20 feet into what he later came to realize was a sewer system, landing on cement. There were no warning signs indicating an open manhole cover. The long grass obscured it from Claimant's view. There was no manhole cover or manhole frame over the hole where Claimant fell.

Claimant noticed a lump on his leg pushing through his jeans, and realized his leg was likely broken. He had a cell phone and was able to reach a 9-1-1 dispatcher. Claimant was able to describe generally where he was to the dispatcher. As emergency cars responded with lights and sirens, he notified the dispatcher when they were close so that responding personnel were able to locate him. Rescue personnel were able to hoist Claimant out of the sewer system using a pulley system.

Claimant was taken to a hospital via ambulance. Surgery was done to insert a rod into his leg to set it. Claimant was in the hospital for approximately ten days. Initially Claimant was in a [*121] wheelchair when he left the hospital. He then learned to walk using a walker. Some months later, Claimant had a serious infection in his leg. He had to have emergency surgery to save it from being amputated. This included removing the rod from his leg. Claimant remained in the hospital undergoing treatments for approximately another ten days.

Claimant was released again from the hospital, this time by ambulance to a rehabilitation facility. Claimant had an external fixator on his leg instead of a rod. This kept his leg set using steel spikes inserted into his leg, connected to an external frame. Claimant had the external fixator on his leg for approximately six to eight weeks. Claimant was released from the rehabilitation facility in May. Claimant lived with his 89-year-old father for approximately two months while he continued to recover.

Claimant continues to suffer some difficulty from the injuries he suffered. His leg is noticeably weaker than what it used to be, his balance has been affected and he is unable to hike at the speeds he had previously.

On cross-examination, Claimant admitted he is a very experienced hiker who was aware that the sun sets earlier in the winter season. Claimant anticipated being back at his car by around sunset, and he was aware that the forest preserve closed at sunset. Claimant admitted that it was overcast on the day he hiked, and he chose to take a dirt path in the woods. He did not have a flashlight with him, but did have his cellular phone that displays the time. Claimant admitted that when he decided to walk back south beside Harlem Avenue in an area with high grass, he was unfamiliar with that area. Claimant was walking at a brisk pace when he fell.

James Stumpner’s Testimony

Both Claimant and Respondent called the Bureau Chief of Maintenance for IDOT, James Stumpner, as a witness. He testified that Harlem Avenue is a State of Illinois road for which Respondent has responsibility for maintenance. The responsibility for maintenance extends to the sides of Harlem Avenue to the east and west, and includes the grassy tract of land the Claimant was walking on the day of the incident. Maintenance included cutting the grass in that tract of land, which was done a few times a year.

Stumpner testified that the subject manhole was installed by the State and that IDOT has the responsibility to maintain, repair, and inspect the sewer system. Mr. Stumpner reviewed a picture of the hole in which Claimant fell. He confirmed that a sewer frame and manhole cover should have been over the hole in question. Stumpner admitted that leaving a sewer system access point uncovered, like the one Claimant fell into, would be a violation of protocol for IDOT’s Department of Maintenance.

On direct examination by Respondent, Stumpner testified that the mission of IDOT’s maintenance bureau was to keep the roadways safe and effective for the motoring public. In District 1, the district encompassing the relevant section of Harlem Avenue, IDOT maintains approximately 100,000 manhole covers. IDOT does not have a routine inspection or maintenance program for the manhole covers or the sewer system generally because the system is so large.

[*122] IDOT inspects manhole covers when there is flooding in a particular location, or in the event a complaint is received.

Stumpner testified that IDOT has experienced unauthorized tapping into the State sewer system in the past, meaning a person or business has run its own pipe down into IDOT’s sewer system at an access point. Stumpner admitted that there was no evidence of this occurring at the manhole cover where Claimant fell.

Bilal Almasri’s Testimony

Bilal Almasri, IDOT Operations Supervisor 2, testified that he had reviewed the daily reports of maintenance and repair activities performed by IDOT within the area where Claimant fell, east of Harlem Avenue between 143rd Street and 151st Street.

Almasri testified that the lid to a manhole cover is there to, among other things, prevent people from falling down the manhole. The manhole lid that should have been on the subject manhole was made of steel and would have a weight of over 100 pounds. The elevated sewer frame that the lid sits on is also made of steel and weighs significantly more. Almasri has seen a frame removed for repairs previously, and it takes more than one person to do it without using a machine.

Exhibit CX-7 was identified by Almasri as an IDOT map that includes the area in which Claimant fell, an area designated by IDOT as section 438. Exhibit CX-8 was identified as a legend of IDOT codes used to designate certain types of work performed by its employees. Exhibit CX-9 was entered as an excerpt of IDOT’s “MMI System,” which tracks work performed by IDOT employees by date. These records reflected that on the following dates IDOT personnel in section 438 performed certain activities:

Date Activity Number of Hours

Workers Worked

May 2, 2014 Other drainage activity 1 1.5

May 5, 2014 Inlet, manhole, and catch basin repair 5 8

June 18, 2014 Inlet, manhole, and catch basin cleaning 4 8

June 18, 2014 Inlet, manhole, and catch basin repair 6 8

June 19, 2014 Inlet, manhole, and catch basin repair 7 8

June 25, 2014 Mowing by machine 1 8

July 29, 2014 Mowing by machine 2 8

September 23, 2014 Mowing by machine 2 8

November 4, 2014 Other drainage activity 1 1

Almasri testified that repair of an inlet, manhole, or catch basin may involve repairing damage to the structure of the lid or frame of a manhole, inlet, or catch basin. Repairing a manhole may involve removing a manhole lid and frame. Cleaning of an inlet, manhole, or catch basin may involve cleaning a cover because debris covered the lid and prevented water from going into the sewer and could involve machinery to suck dirt from the catch basin. Cleaning a [*123] manhole may involve removing the lid of the manhole, but would not involve removing the frame.

The November 4, 2014 “other drainage activity” work was related to, according to an IDOT report entered into evidence, a sewer collapse in section 438. Almasri testified that a sewer collapse could mean there was some sort of damage to the street or a sewer, and the worker in this case would have secured the sewer collapse. The November 4 entry indicates one hour of work for one worker.

On examination by the State, Mr. Almasri testified that IDOT does not have a routine inspection or maintenance program for its sewer system or manhole covers. IDOT would only perform maintenance on a sewer or manhole if a complaint was made. Mr. Almasri stated that IDOT does not send individual workers down into a manhole to perform work, and if they did, the frame of the manhole would not have to be removed. The frame of a manhole would be removed in order to repair the frame, but he could not think of another reason.

Mr. Almasri testified that if a complaint was made about an issue within his team section, which includes the area where Claimant fell, it would be routed to him. He did not recall any complaints regarding manholes in the area where Claimant fell. Complaints about flooding in the area could have resulted in the manhole being inspected, but Mr. Almasri did not recall receiving complaints about flooding or being made aware of flooding in the area where Claimant fell.

Mr. Almasri testified that a backhoe would normally be used to remove a manhole frame from a manhole. Using a backhoe for these purposes would require lane closures, and it would be reflected in IDOT’s daily reports. Mr. Almasri testified that normally repairs are done to catch basins, which are exposed to heavy traffic. In regard to the area where Claimant fell, Mr. Almasri stated that because it is not exposed to street traffic there should be nothing to damage the subject manhole cover or frame. Mr. Almasri testified that generally any damage done to an inlet, catch basin, or manhole, tends to happen in the roadway because vehicles cause the damage.

Mr. Almasri stated that the grassy area where Claimant was walking was not improved or maintained for pedestrian traffic, and he had never seen pedestrians traversing this area.

Anthony Burns Testimony

A transcript of the deposition testimony of Anthony Burns was entered into evidence by agreement of the Parties. Mr. Burns is and was at all times relevant a patrol officer with the Forest Preserve District of Cook County. On December 27, 2014, Mr. Burns responded to a call that an individual had fallen into a sewer. He drove his car slowly along Harlem Avenue and stopped his car when the dispatcher informed him that Claimant could see the flashing lights. He then got out of his car with a flashlight and started looking for Claimant in the grassy patch of land next to Harlem. While looking for Claimant, Mr. Burns and an officer from Orland Park Fire Department almost fell into the open manhole themselves.

[*124] Mr. Burns testified the frame and manhole cover were between five and ten yards away from the sewer opening. Mr. Burns stated that there was grass surrounding the frame and manhole cover, but only mud actually underneath them. Mr. Burns stated he believed the items had been on the ground for a substantial period of time based on the fact there was mud under them, and not grass.

LEGAL ANALYSIS

I. Claimant failed to prove the State breached a duty owed to Claimant.

Claimant alleges in the Complaint that he was lawfully on State property, and that the State was negligent because it failed to exercise ordinary care to maintain its property in a reasonably safe condition. In order to maintain a cause of action for negligence, “a claimant must allege facts establishing the existence of a duty, a breach of that duty, and an injury which proximately resulted from the breach. Gillespie v. State of Illinois, 63 Ill. Ct. Cl. 240, 241-242 (2011) (citing Ondes v. State, 43 Ill. Ct. Cl. 272, 275 (1990)).

While Claimant alleges he was lawfully on State property, the facts do not support the argument that the Claimant was, in fact, an intended user of the property. The State admitted in testimony that Harlem Avenue was a State road for which it had the responsibility for maintenance, and that responsibility included the grassy strip where Claimant's accident occurred. However, as held in Gillespie, “[w]hile it is well-settled that the State has a duty to maintain its roads in a reasonably safe condition for the purposes to which the portion in question is devoted, the law imposes no general duty on governmental entities for the safeguarding of pedestrians when they are using the public streets as sidewalks.” Id. at 242 (citing Wheel v. State, 42 Ill. Ct. Cl. 231, 233 (1990)).

Prior cases such as Gillespie and Wheel make it clear that the State owes no duty to maintain State roads, such as Harlem Avenue, to be safe for pedestrian use. In this case, there is no evidence supporting the proposition that the grassy strip next to Harlem Avenue was intended for pedestrian use. Mr. Almasri testified that the State did not maintain the area for pedestrian use, and he had never seen the public using the area for a walking path. Therefore, the State did not owe a duty to Claimant to maintain the grassy strip for him to utilize as a pedestrian walkway.

However, that does not end the analysis, as even a trespasser has the right not to be injured by a property owner’s willful and wanton conduct. In Maikranz v. State, 38 Ill. Ct. Cl. 134, 136 (1985), the Court held that “with respect to a trespasser or licensee, the Respondent only owes a duty not to willfully and wantonly injure the person going upon the land.” (citations omitted). A trespasser has been defined as “one who enters the premises of another without permission, invitation, or other right and intrudes for some purpose of his own, or at his convenience, or merely as an idler.” Id. (citation omitted).

Claimant was not an invitee or intended user of the grassy strip and should be considered a trespasser. The State and Claimant both argue that Claimant's status as a trespasser depends on what time of day he entered the State property, and whether or not it was before or after sunset, [*125] the time that the Forest Preserve closed. However, regardless of whether it was light or dark out, the State property next to Harlem Avenue was part of a public road, and not intended for use as a pedestrian walkway. He was not an invitee and entered State property for his own purpose.

Claimant argues in his post-hearing brief, without citation to controlling authority, that to the extent that THE State is claiming Claimant trespassed, the State failed to plead an affirmative defense to that effect and waived the argument. However, the Claimant has the burden of proving the State owed a duty to him that was breached, and the State denied owing any duty to Claimant. The question of whether the Claimant has established his status as an invitee, or whether he was a trespasser, is party of the Claimant's case-in-chief, and the State did not waive any argument that Claimant was trespassing on State land when the incident occurred.

Since the Claimant was not rightfully on State property at the time of the accident, the State only owed the “duty not to willfully and wantonly injure the person going upon the land.” Id. In order to prove willful and wanton conduct, it is not required to show the State intended to cause harm, but there must have been an act or omission constituting reckless disregard of substantial danger or consequences, and as such, it is a difficult standard to meet. Olin v. State, 48 Ill. Ct. Cl. 366, 368 (1996).

Claimant has not established that it is more likely true than not the State removed the subject manhole cover and frame. Although there was testimony from State witnesses that a manhole cover and frame may be removed in order to conduct repairs, there is no evidence that repairs were done on the subject manhole. There is no evidence that the manhole cover or frame that were found near the exposed hole were damaged, in need of repair, or had been recently repaired.

Evidence was presented that sewer repair work had been done in the eight-mile section of road that included the subject manhole in the seven months preceding the accident. The description of that work included general repairs to inlets, catch basins, and manholes. The majority of the repair work was done in May and June 2014, and was done by groups of five to seven State workers. None of the workers testified at hearing as to the nature of the work they conducted on these dates. Mr. Almasri testified that repairs are most often done in the road, as damage is normally caused by vehicles in the roadway. Mr. Almasri also testified that the majority of repair work is done on catch basins. There is no direct evidence that the subject manhole cover or frame were ever damaged, and no circumstantial evidence presented suggesting what damage could have been suffered in light of the fact the manhole cover and frame were protected from traffic by a guardrail.

Further, Mr. Almasri testified that normally a backhoe would be used by the State to remove the subject sewer frame, and that lane closures would be necessary if used at the location where Claimant fell. Mr. Almasri testified that there would be additional reports, and records of materials used, however none were presented at the hearing.

Claimant argues that the State was unable to articulate any reason why a third party would remove the subject manhole cover and frame. However, it is not incumbent upon the State to prove or speculate as to how or why the subject manhole cover and frame were removed.

[*126] It is unclear from the evidence how long the manhole cover and frame had been removed. No witnesses testified as to seeing the manhole exposed previously, and the State received no complaints about the manhole. Claimant argues that Mr. Burns’ testimony that there was mud, rather than grass, under the manhole cover and frame indicates they had been removed for a substantial period. However, there was no expert testimony as to how long it takes grass to die under a heavy object such as the manhole frame. Therefore, it is not known whether the manhole was uncovered for a matter of days, weeks, or months. Without any timeline as to how long the condition existed, it is not possible to conclude that IDOT was reckless in failing to discover it, particularly in an area removed from the roadway and blocked from view from the roadway by a guardrail. See Crile v. State, 36 Ill. Ct. Cl. 176, 179 (1984), a claim related to a child falling into an open manhole. There the Court said the length of time the defect existed is thus the crucial element in constructive notice. In the instant case, the record reflects that Claimant presented no evidence as to the length of time that the manhole cover was missing.

It is the burden of the Claimant to establish the State is liable for breaching the duty owed to him, in this case, refraining from willful or wanton acts or omissions. There is insufficient evidence to conclude the State is at fault for creating the condition that caused the Claimant's injuries through a reckless act or omission.

Because the Court concludes that Claimant has not established a breach of the duty of care, it is not necessary to reach the issues of whether the State is protected by the Recreational Immunity Act or the Claimant's possible contributory fault for the accident.

For the above stated reasons, the Claimant has failed to prove his claim by a preponderance of the evidence. IT IS HEREBY ORDERED that the claim is DENIED.