Marla Delaurentis v. State of Illinois

OPINION

BIRNBAUM, CJ.

Marla DeLaurentis (“Claimant”) brought this action against the State of Illinois, (“State” or “Respondent”), claiming that the State was liable for injuries she suffered when she slipped and fell on State property. The incident occurred on August 25, 2014 (“Incident Date”), at the Thompson Center, located at 100 W. Randolph Street, Chicago, Illinois 60601. Claimant requested an award of $100,000 for medical expenses and for past, present, and future pain and suffering and loss of enjoyment of life. A hearing on the merits was held on June 19, 2019.

FACTS

Testimony of Marla DeLaurentis

Claimant is a substitute teacher for the Orland Park School District. When she is teaching she is on her feet for most of the day, and often assists children with their physical activities in special education classes. Claimant also works for a pizza restaurant as a cashier. She estimates that each week she works about 28 hours as a substitute, and 12-18 hours as a cashier.

On the Incident Date, Claimant was in Chicago with her fiancé, Shane McElree. They had spent the afternoon downtown and parked at a garage across the street from the Thompson Center. That afternoon the weather was overcast and raining. Before going home, they entered the Thompson Center to use the bathroom and browse the stores. They entered the Thompson Center through the Randolph Street doors on the north side of the building. After using the bathroom on the concourse level, they returned to the ground level using the escalator, intending to exit through the same Randolph Street doors.

Claimant testified that as she walked toward the Randolph Street doors, she slipped in a puddle of water and landed on her left knee. Claimant estimated that the puddle was bigger than the size of a basketball, and about one inch deep, and caused her pants to get wet. Claimant testified that she fell between the escalator and the Walgreens store located on the west side of the building. She estimated that she fell approximately 25-30 steps from the Randolph Street exit.

Claimant testified that she did not see the puddle before she slipped, although she was watching where she was walking. Claimant did not see any warning cones in the immediate area [*128] of her fall. She was assisted to her feet by her fiancé and a state police officer, Sergeant Jones. Sergeant Jones offered her medical attention. According to Claimant, Sergeant Jones told her that the water came from leaks in the ceiling.

The fall caused pain in her left knee and lower back, but Claimant opted not to seek medical attention and walked with a limp back to the car. The next morning, Claimant experienced pain in her knee and lower back, and there was swelling in her knee. She decided to go to an immediate care facility in Homer Glen, where an x-ray of her knee was taken. She was prescribed pain medication, and instructed to see a specialist in the next few days if the pain persisted.

In the next week, the pain in her lower back subsided. However, the pain in her knee continued and it was very painful for her to climb stairs. She also began to experience pain in her lower left calf. She contacted Doctor Michael Durkin, an orthopedic doctor, to make an appointment. The earliest appointment was October 3, 2014. On that date, more x-rays were taken of her knee. Dr. Durkin diagnosed her with a fractured patella (knee cap). Claimant was given more pain medication and a brace for her knee. The brace would keep her knee stiff, and ran from above her left knee down to her ankle.

She was prescribed physical therapy, which began in November 2014. Therapy lasted approximately three months, approximately 2-3 days per week for an hour. She also visited Dr. Durkin five or six additional times, the last time on April 25, 2015. On one occasion Dr. Durkin ordered an ultrasound for the problems she was having with her calf.

After completing her therapy, Claimant was still experiencing discomfort, particularly when kneeling. She experienced discomfort when it rained, and some pain when walking long distances. As of the date of hearing, Claimant still experiences some numbness and pain when kneeling, and discomfort during certain weather. Her pain currently ranges between minor and intermediate pain. She no longer has any swelling. Claimant testified that she continues to experience pain if she walks long distances, although this contradicted Dr. Durkin’s testimony as to what symptoms she should still be experiencing (See Infra). At all times after THE incident Claimant continued to work both of her jobs and did not miss any time from work.

On examination by the State, Claimant testified that when she came back upstairs from the concourse level to exit through the Randolph Street doors, she was approximately 50 to 60 steps from the Randolph Street exit. When she fell, Claimant said she was about 25 steps from the exit. Claimant admitted that there were hazard cones located near the doors where she intended to exit, and she had noticed them before she fell.

Claimant stated that she never actually saw water leaking from the roof of the Thompson Center, and does not personally know the source of the water thAT caused her to fall. On the Incident Date, Claimant was 36 years-old, and had no prior injuries to her left knee and she worked without any restrictions at both of her places of employment.

[*129] Testimony of Shane McElree

Mr. McElree testified that on August 25, 2014, it was raining heavily throughout the day. When Claimant fell, he was walking next to her when suddenly she slipped. He recalled her complaining that her pants were soaked with water after she fell. He saw the puddle she slipped in, which he estimated to be about two feet wide. He did not notice the puddle on the floor before she slipped.

It took Claimant some time to get up, with the assistance of Mr. McElree and Sergeant Jones. Claimant was in significant pain. Sergeant Jones wanted to call an ambulance, but Claimant declined. Mr. McElree testified that there were no hazard cones in the immediate area where Claimant fell, only by the doors where they had intended to exit. Mr. McElree estimated that Claimant fell about 30 steps away from the exit.

Testimony of Sergeant Jeffrey Jones

Sergeant Jones testified that he has been employed with the Illinois State Police since 2005. Sergeant Jones worked part-time in the Thompson Center since 2000 (beginning when he was a CMS employee), and full-time since 2007. In August 2014, he worked at the security desk on the first floor of the Thompson Center from approximately 2:00 p.m. to 10:00 p.m.

Sergeant Jones testified that since he began working at the Thompson Center in 2000, there have been issues with the roof leaking, and in 2014 there was still a chronic problem with the roof leaking. In fact, Sergeant Jones estimated that every time that it rained, there would be between four and eight incidents of pedestrians slipping and falling on the floor of the atrium. Some of those falls would result in injury.

Sergeant Jones testified that typically the roof of the Thompson Center would start leaking about 30 minutes after it started raining, and continue to leak about an hour after it rained. While janitorial staff would set up buckets to catch water and set out warning signs, he does not recall staff staying on the first floor to monitor the accumulation of water.

Sergeant Jones was on-duty on the Incident Date at the security desk. He witnessed Claimant fall at approximately 5:49 p.m., in his peripheral vision. When he saw her fall, he walked over to assist her off the floor. He noticed a puddle of water on the floor where she fell. He offered Claimant medical assistance, but she stated she would seek it at a later time. Sergeant Jones requested that Claimant call him and inform him if she sought treatment for any injuries. Claimant called Sergeant Jones the next day to inform him that she did seek medical attention.

On examination by the State, Sergeant Jones clarified that the chronic roof leaks he referred to occurred in three specific areas. The first location was on the Clark Street (east) side of the building near an escalator from the ground floor to the second floor. The second location was near the police desk on the LaSalle Street (west) side of the building. The third location was just off to the west side of the John Henry Statue, which was located near the center of the atrium, approximately 25 feet from the revolving doors at the Randolph Street exit.

[*130] In his report about the incident, Sergeant Jones stated that the water Claimant fell in was caused by roof leakage. However, Sergeant Jones testified that he did not actually see water leaking onto this area of the floor, and had simply assumed that was the case.

Sergeant Jones testified that there was a cone warning of a slippery floor near the area where Claimant fell. Sergeant Jones identified the area where Claimant fell as near the escalator going to the second floor on the Clark Street side of the building, on the opposite side of the building from the Walgreens near the Randolph Street entrance. Mr. Jones reiterated that it would not have been near the Randolph Street exit because water does not typically accumulate there.

Sergeant Jones testified that at 5:49 p.m., if a member of the public would be leaving the concourse level of the Thompson Center, they would have to use the escalators toward the Randolph exit of the building. This exit was several feet away from the three locations he identified as the source of reoccurring leaks at the Thompson Center.

Sergeant Jones testified that regardless of exactly where in the building Claimant fell, he does recall water accumulating in that area on prior occasions when it rained.

Testimony of Jennifer Haley-Perrin

Ms. Perrin testified that she was the facility manager at the Thompson Center on August 25, 2014. Her responsibilities included managing all facility operations, including maintenance and repair of the building, contract oversight, capital development board projects, and management of the physical plant. Ms. Perrin testified that the Thompson Center is open to the public from 6:00 a.m. to 6:00 p.m., and approximately 10,000 people a day enter the building.

In the five years prior to the Incident Date, Ms. Perrin testified that the Thompson Center consistently had a problem with roof leakage. Contractors who examined the roof identified one source of the leaking as the flashing where the vertical walls of the building met the angled roof, or dome, of the building. Management of the Thompson Center attempted to keep track of leaks in the building, documenting the location of new leaks as they became aware of them in a book referred to as the “leak log.” In the five years prior to the Incident Date, there were 62 entries in the leak log. A new entry was not made on or around the Incident Date, suggesting the leak was not a “new” leak.

When it would rain in 2014, due to the leaking in the roof, approximately five buckets or garbage cans would be placed around the atrium of the Thompson Center to catch water leaking from the roof. Warning signs and cones would also be put out in the Thompson Center to warn pedestrians of a slippery floor.

The floor of the Thompson Center is terrazzo tile that gets slippery when it gets wet. To address any water that fell outside the buckets and cans, porters and janitors would be on duty to mop up the excess water. In 2014, between 5:00 p.m. and 6:00 p.m. there were no janitors or porters on duty to mop up excess water, as this was the time period between the day and night [*131] shifts. During this one-hour period, building engineers would be available to mop up water that accumulates on the floor, however they would only do so if notified of an issue.

Ms. Perrin also testified that she spoke with Claimant at some point after the incident, and informed her that there was no mechanism in place for her to simply be compensated for her injuries, and she would have to file a lawsuit against the State. After she spoke with Claimant, Ms. Perrin also spoke with building engineers who said there was some leakage in the general area where the Claimant fell. The leak log indicates some leaks were identified in that general area, some of which were repaired prior to August 2014, some of which were not. Again, Ms. Perrin reiterated that warning signs were placed in the area, and rugs were also placed on the floors.

Testimony of Doctor Michael Durkin and Medical Bills

By agreement of the Parties, the deposition testimony of Dr. Michael Durkin, an orthopedic surgeon with Hinsdale Orthopedics Associates, was entered into evidence. Dr. Durkin reviewed the record concerning the initial x-ray done at the immediate care clinic on August 26, 2014. The immediate care clinic concluded that Claimant did not fracture her patella. Dr. Durkin explained that occasionally a nondisplaced patella fracture does not show up on the initial x-ray, and may not be evident until a few weeks later.

When Claimant came to see him, Dr. Durkin examined her left knee. He testified that the range of motion was normal, the quad muscle was working, and she did not have fluid in the knee or obvious bruising. However, there was a significant tenderness when the kneecap was touched.

X-rays were taken of Claimant's knee, and they revealed a nondisplaced patella fracture with minimal arthritis. A nondisplaced fracture is a fracture where the fragments have not moved relative to each other, “but there’s just a little crack.” Further, Claimant's fracture was in proper anatomical alignment, meaning there is nothing that needs to be done to “put them back.” Therefore, “very little treatment” is necessary, other than bracing the knee. She was instructed to wear the knee brace during her waking hours, and up to 23 hours a day. It was not necessary for Claimant to use crutches. She was prescribed an anti-inflammatory and lidocaine cream to address pain. During the initial visit with Claimant on October 3, 2014, Dr. Durkin did not have any record of issues with Claimant's calf.

The next visit with Dr. Durkin was November 13, 2014. At this visit, Claimant reported to Dr. Durkin that she only was wearing her brace for a few hours per day, in contradiction to his instructions. Dr. Durkin testified that if a patient does not wear the brace as directed, they could aggravate their condition.

During the November 13, 2014 visit, Claimant first reported to Dr. Durkin pain in her calf. A test was ordered to make sure this pain was not caused by a blood clot, and that test came back negative. Dr. Durkin prescribed physical therapy because he believed the calf issue resulted from change in her gate caused by the injury to her knee. Also during this visit, an x-ray of [*132] Claimant's knee indicated the fracture had healed, but there was a bone spur in her knee that could cause some pain.

The next visit with Dr. Durkin was December 23, 2014. During this visit, Claimant reported that her knee was feeling fine, but that her calf pain was still present. Dr. Durkin testified that this was the typical healing time for a patella fracture, so Claimant's recovery by this point was normal.

The next visit with Dr. Durkin was March 10, 2015. Claimant reported numb and tingling sensation in her knee, which Dr. Durkin stated was not typical for a patella fracture after so much time had passed since it had healed. Dr. Durkin hypothesized this pain was caused by nerves in the front of the kneecap that can become aggravated when kneeling. However, when he examined her, she did not exhibit tenderness in her knee where he would have expected if it was a nerve problem. Claimant also reported feeling pain in her calf, which was also an unusual recovery time for the calf strain Claimant suffered from.

Claimant's final doctor visit with Dr. Durkin was April 23, 2015. She was still complaining of some pain in her knee when it was damp or raining out. Dr. Durkin said this is relatively common with knee injuries. Dr. Durkin also said this pain could have been caused by her existing arthritis.

Dr. Durkin testified that, typically, patella fracture patients cease feeling pain after about a year. A patient would not typically feel any numbness or other symptoms four to five years later. Dr. Durkin also stated that the minimal level of arthritis present in Claimant's knee was typical for a person of her age.

Claimant entered into evidence the medical bills for treatment she received related to her fall, totaling $20,956.43.

LEGAL ANALYSIS

The State’s Liability

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

The State owes 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

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

Ill. Ct. Cl. 799).

[*133] To prove constructive notice of a dangerous condition, 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)).

The evidence established the State was on notice of a dangerous condition. The State was well aware of the leaking roof at the Thompson Center, and the resulting water on the floor of the building when it rained. The State argues that while it may have generally been aware of a leaking roof, it was not aware of the specific leak that caused the puddle of water in which the Claimant fell. This argument is not persuasive nor supported by any precedent. The State was on notice that it had a roof that leaked, and caused water to form puddles throughout the atrium. Sergeant Jones stated in his testimony that water had accumulated previously at the specific location where Claimant fell. The puddle in which Claimant fell was not small; it was a one-inch deep puddle approximately 2 feet in diameter that would have taken some time to form.

Perhaps most importantly, Sergeant Jones testified that 4-8 visitors at the Thompson Center fell every time that it rained, providing clear notice that a dangerous condition existed due to the heavy rainfall on the Incident Date. See Hambry v. State, 31 Ill. Ct. Cl. 487, 489 (1976) (heavy rainfall provided State with sufficient notice that it should have kept its floors reasonably dry); Smith v. State, 41 Ill. Ct. Cl. 42, 43 (1989) (State was on notice that heavy rain could result in water being tracked into the facility by visitors).

The State argues that it took reasonable efforts to protect its visitors. The State did make efforts to address the constant leaks, such as establishing the leak log, placing garbage cans at various locations to catch water, and placing caution signs at exits. Although Sergeant Jones suggested there was a caution sign at the location where Claimant fell, his testimony in this regard was not reliable. First, it contradicted the credible testimony of Claimant and Mr. McElree, who testified that they did not see any caution signs in the area. Next, Sergeant Jones did not appear to recall where the accident actually took place. His testimony was that Claimant fell far away from any reasonable route a pedestrian would take coming up escalators from the concourse level to exit the Randolph Street doors, and again contradicted Claimant and Mr. McElree’s clear recollection that she fell within 20-30 steps from the Randolph Street doors.

While the State had janitorial staff available to mop up water that either splashed out of the buckets collecting water or that accumulated in other areas, that staff was not on duty during the period when Claimant fell. The Claimant fell between 5:00 p.m. and 6:00 p.m., a one-hour period between two shifts of janitorial staff in which no staff was monitoring the floor of the Thompson Center. While there were engineers on duty, they would only mop up an area if a complaint was made.

Perhaps the most compelling testimony as to whether or not the State made reasonable efforts to protect its visitors from the roof it knew leaked water was the testimony of Sergeant Jones. Again, Sergeant Jones, who worked in the Thompson Center for 14 years, testified that every time that it rained the roof of the Thompson Center leaked and between four and eight pedestrians would slip and fall on the floor.

[*134] The State’s final argument in defense of liability is that it was an open and obvious danger. The testimony did not reveal any carelessness on the part of Claimant for failing to keep a proper look out. She was not on her cell phone, listening to music, or otherwise not paying attention. There was testimony from multiple witnesses that it is difficult to see water on the floor of the Thompson Center, and Claimant and Mr. McElree testified that they were both keeping a proper look out for danger and did not notice the puddle. Finally, once again based on Sergeant Jones’ testimony, multiple individuals also fail to see slippery spots on the Thompson Center floor when it rains. There is no basis for finding the Claimant was comparatively at fault for her fall.

Based on the evidence presented, the State was on notice of the dangerous condition and failed to take reasonable efforts to protect the Claimant in this case, and therefore is liable for her injuries.

Damages

Claimant entered into evidence medical bills totaling $20,956.43, including physical therapy. Although Claimant suffered a serious injury, she does not suffer from any permanent disability. Claimant requests approximately $79,000 for past and future pain and suffering, and for loss of a normal life.

Claimant undoubtedly suffered pain as a result of her fall, and may have some limited pain in the future, but the amount requested is excessive. Claimant was not in extreme pain at the time of the incident - she declined medical assistance, and instead walked back to her car with assistance. When it was eventually discovered that she suffered from a patella fracture, she did not follow her doctor’s instructions concerning wearing her brace during all waking hours, and instead only wore it for a few hours a day. She did not miss any work because of her incident, and there was no evidence she suffered from Chondromalacia (deterioration of cartilage causing permanent damage) or any other permanent condition that would require future treatment.

Claimant is awarded $15,000 for past and future pain and suffering, an award that is consistent with prior cases in this Court. See Owens v. State, 41 Ill. Ct. Cl. 109 (1989) (claimant suffered a fractured patella, torn cartilage, and chondromalacia in her knee that caused it to give way four years after the incident; claimant found to suffer from a disability; claimant awarded $34,363.38, including $10,000 for present and future pain and suffering); Munster v. State, 40 Ill. Ct. Cl. 171 (1988) (claimant suffered a nondisplaced fracture of the patella, accompanied by chondromalacia and atrophy; claimant awarded $10,000 for past and future pain and suffering). While Claimant did not suffer chondromalacia, as the claimants in these cases did, these cases are approximately 30 years old, and the increased amount reflects inflation over time.

For the above stated reasons, the Claimant has proven her claim by a preponderance of the evidence, and is hereby granted an award of $35,956.43.