Terry Griffin v. State of Illinois

OPINION

GAGLIARDO, J.

This claim is before the Court by way of evidentiary hearing conducted October 24, 2018, before Commissioner Murphy. The Claimant, Terry Griffin, alleges that on July 29, 2015, she suffered bodily injury as a result of negligence by Southern Illinois University-Carbondale (SIUC) acting through its employees for failure to maintain a handicapped parking space on its campus. This Complaint was filed May 4, 2017, seeking $66,857.39 in damages. Respondent denies the allegations.

CLAIMANT'S TESTIMONY

Claimant, Ms. Terry Griffin, was pursuing her master’s degree in social work during July of 2015 at SIUC. On July 29, 2015, Claimant was attending class in Pulliam Hall (Pulliam) located on the SIUC campus. When Claimant arrived on campus that day, she parked within the handicapped spaces located in front of Pulliam. Claimant had a handicapped parking permit (due to unrelated upper body injuries) and was a permitted user. After class, around 4:20 p.m. that same day, Claimant headed to her car in the handicapped parking spaces in front of Pulliam, as she had done every day that semester. Claimant did not notice anything unusual about the parking lot around her car, but she remembered that it was a beautiful and sunny day. Claimant walked toward the back passenger-side door of her car and opened it. She then placed her book bag in the backseat and started to close the car door. In order for her to close the door, Claimant had to take a step back. When she stepped back to close the door her left foot went in a hole, causing her ankle to twist. As Claimant was falling, she tried to hold on to the rear passenger side of the car and fell down on the street.

After Claimant fell, she stood up and hopped toward the front of the car, got in the driver’s seat, and proceeded to move her car forward in order to take a picture of the hole using her cell phone. Claimant testified that she had parked in this area before July 29, 2015. Three to four parking spaces in front of Pulliam specifically were designated for handicapped parking and she always parked in one of these spaces, but had never noticed the hole.

After she fell and took a photograph of the hole, Claimant drove over thirty minutes to Union County Hospital in Anna, Illinois, her hometown, to seek medical treatment. Claimant noted that soon after the fall her left ankle was swollen and turned black and blue. At the hospital, Claimant says she told the staff that she fell at SIUC and never informed them that she [*151] fell at home. The hospital took X-rays of her ankle, iced it, prescribed pain medication, and placed a temporary cast on her right foot until Claimant could visit an orthopedic specialist the following day. Claimant was unable to drive herself home from the hospital and needed help from her son, Jade Gillis, who was attending high school football practice.

The next day, Claimant visited Dr. David Wood, an orthopedic specialist in Herrin, Illinois. Dr. Wood placed a permanent cast on Claimant's left foot because the injury was such that a remedial boot would not be appropriate. Dr. Wood ordered that Claimant place no weight on her left foot until healed; shortly thereafter, Claimant began using a wheelchair. Soon after visiting Dr. Wood, Claimant's left leg began to hurt, her toes were turning blue and purple, and her left foot was swollen above the cast. Claimant returned to Dr. Wood who applied a fresh cast to her left leg and prescribed a bone growth stimulator for six weeks. Claimant's medical bills came to a total of $11,857.39.

As a result of the injury to her left foot, Claimant experienced many changes in her dayto-day life. She was no longer able to drive and relied upon others, especially her son Jade, to take her to class and wherever she needed to be. Jade also took on the responsibilities of cooking, cleaning, grocery shopping, and paying the bills because of Claimant's lack of mobility. Further, Claimant was very active in her son’s high school football career and was required to rely heavily upon the kindness of other parents to drive her to the football games and make sure she was secure in the stands. Claimant was no longer able to actively volunteer at the school’s concession stand during the first few months of her recovery.

Lastly, Claimant testified that her left foot and ankle still swell, the area is purple in color, and a portion of that area “sticks out” preventing her from wearing high heels. Claimant says that she can only stand on her foot for about fifteen to twenty minutes before she needs to take a break due to ankle swelling.

On cross-examination, Claimant testified that she made use of three handicapped parking spaces in front of Pulliam from 2014 to July 29, 2015 (the day she fell). During the entire time Claimant parked in those spaces, she never noticed any defects in the pavement. Claimant also testified that when she stepped away from her car to close her back-passenger door, she stepped away from the car toward Pulliam and not back toward the bumper of her car. Claimant agreed that the hole is located at the back of the parking space next to the yellow line.

Claimant also acknowledged that Southern Illinois Healthcare in Carbondale, Illinois, is much closer to where she fell but instead she drove 30 minutes to Anna, Illinois, to seek treatment. Claimant denied telling the hospital she had fallen at home. She told the hospital her pain was a “22 out of 10” and was disoriented from the fall.

On re-direct examination, Claimant testified that the hole was covered with grass and debris obscuring it from view. Claimant explained that she chose to drive thirty minutes to Union County Hospital, instead of a closer hospital, because her son needed to be picked up from school, and she believed it would be easier for a friend to drop him off at Union County Hospital rather than drive to Carbondale.

[*152] On re-cross-examination, Claimant identified her vehicle at the time of the accident was a Saturn Vue, which is a Sport Utility Vehicle (SUV). The back-passenger seat in a Saturn Vue is not located at the rear-end of the car; instead, a storage area is between the back seat and rearend of the vehicle.

Jade Gillis

Claimant called Mr. Jade Gillis (Gillis), her son, to testify via telephone conference. Gillis currently attends university at Eastern Florida State College; on July 29, 2015 he resided in Anna, Illinois with his mother. When Gillis first found out about the injury, he was at football practice for Anna Jonesboro High School. After practice, Gillis went to Union County Hospital, and saw Claimant's left foot was swollen and she was in a lot of pain. Gillis testified that before her injury, Claimant was very involved with the athletic club at Gillis’s high school, participated regularly in church events, and often walked around town. After Claimant's injury, she had substantial issues participating in these activities. Gillis took on a lot of daily responsibilities Claimant had normally performed before her injury such as cooking and cleaning. Gillis helped Claimant move around inside the house and while in town. Gillis testified that Claimant's sleeping habits were also affected by the injury and she needed pain medication to help her rest. Gillis further testified that about a year and a half after the accident Claimant was able to perform normal activities again with her left foot, but she can no longer walk long distances without her left ankle starting to hurt.

TESTIMONY ON BEHALF OF RESPONDENT

Bradley W. Dillard

Respondent called Mr. Bradley W. Dillard (Dillard) to testify. Dillard is the director of plant service operations for SIUC and has been in the position for a year and a half. He has been an employee of SIUC for 31 years and all of his employment is related to plant and service operations. As director, Dillard is responsible for all of the facilities on the SIUC campus, including the maintenance of grounds and parking lots. Dillard first learned of the potential defect in the handicapped parking space in front of Pulliam when this lawsuit was filed. The parking space at issue is parallel to Pulliam Hall, in that vehicles are parked parallel to the curb between yellow lines. Dillard testified that the parking space has a hole slightly southeast of the yellow line at the rear. Dillard further testified that the hole has not been repaired and no issues have been reported to date. The hole was measured by Dillard and reported as 1 to 1-3/4 inches deep.

On cross-examination, Dillard testified that he expected individuals using the handicapped parking spaces would also make use of the area around their vehicle. When presented with a photograph of the parking space at issue, Dillard expected someone wanting to move from the backdoor to the rear of the car would choose to avoid the hole by walking up on the curb and around the road sign. Dillard understood that it is possible a person might choose to walk between their car and the curb to reach the rear of the vehicle. Lastly, Dillard testified that he does not directly take care of repairs of concrete, but that other employees drive around looking for repairs and there are enough employees to take care of safety issues.

[*153] CLOSING BRIEFS

Claimant relies upon Curatola v. Village of Niles, 154 Ill. 2d 201 (1993), to establish that SIU has a duty to exercise ordinary care to maintain handicapped parking in a reasonably safe condition for use. Claimant notes that the hole which caused her injury is located within the handicapped parking space and was obscured by dead grass/debris and therefore not subject to the “open and obvious” exception. Claimant also cites the Illinois Tort Immunity Act to further establish a duty of ordinary care to maintain handicapped parking for “people whom the entity intended and permitted to use the property…” 745 ILCS 10/3-102(a). SIU had ample resources, funds, and personnel to maintain the handicap space at issue and failed to have any protocol or program in place to do so. In the alternative, Claimant asks that if the hole is determined to be open and obvious, that this Court should recognize the deliberate encounter exception as well as the distraction exception against a finding of contributory negligence. Finally, Claimant argues that Respondent should only receive credit for amounts paid toward related medical bills, and not credit for each amount billed.

Respondent argues that Claimant has failed to prove her injury was caused by stepping in the hole at issue. Respondent supports this contention by citing inconsistencies involved with the fall including the implausibility of Claimant at 5’8” tall being able to step from the back passenger-side door all the way to the bumper of her car, where the hole was located. Because Claimant agreed she “stepped away” from the car, she would have been stepping toward the curb and not the hole. Respondent also argues that assuming arguendo Claimant's injury was caused by stepping in the hole, SIU had neither actual nor constructive notice of the hole before Claimant's injury. Respondent alternatively asks this Court to find that any recovery be reduced based upon Claimant's contributory negligence.

LEGAL ANALYSIS

To prevail in a negligence claim, a claimant must prove 1) the respondent owed a duty to exercise due care; 2) the actual degree of care required of respondent; 3) respondent failed to exercise the requisite degree of care; and 4) respondent's failure to exercise due care proximately caused claimant's injury. Reddock v. State, 32 Ill. Ct. Cl. 611 (1978). “The State has a duty to maintain a parking lot in a safe condition for use by those persons lawfully present.” Collins v. State, 66 Ill. Ct. Cl. 145, 149 (2014) (citing Clark v. Board of Trustees of Southern Illinois University, 08-CC-0458 (Opinion filed March 26, 2010)). The existence of a dangerous condition however, is not, by itself, sufficient to constitute an act of negligence on the State’s behalf. Id. at 150. Claimant has the burden of showing that the State had either actual or constructive notice of the dangerous condition. Id. To show constructive notice, Claimant must show that the defect “existed for such a length of time, or was so conspicuous, that public authorities, exercising reasonable care and diligence might have known of it.” Burke v. Grillo, 227 Ill. App. 3d 9, 18 (2nd Dist. 1992) (citing Finley v. Mercer County, 172 Ill. App. 3d 30, 33 (1988)).

There is no question that Respondent has a duty to maintain its parking lots in a safe condition for use by those persons “whom the entity intended and permitted to use the property in a manner in which…it was reasonably foreseeable that it would be used.” 745 ILCS 10/3-102.

[*154] Section 3-102(a) of the Illinois Tort Immunity Act provides that a local public entity “shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” 745 ILCS 10/3-102; Burke, at 18; see also Barr v. Frausto, 2016 Ill. App. (3d) 150014.

I. Actual Notice

To determine whether Claimant has carried her burden of establishing Respondent’s actual notice of the defect in the handicapped parking space, this Court looks to whether there is competent evidence in support. Here, there is no evidence in the record that Respondent was ever given actual notice of the defect prior to July 29, 2015.

II. Constructive Notice

Absent proof of actual notice, this Court now looks to whether Respondent had constructive notice of the defect before July 29, 2015, and considers the length of time the defect existed before the accident and conspicuity of the defect. Barr v. Frausto, 2016 Ill. App. (3d) 150014, ¶ 22. The party asserting constructive notice has the burden of proving that notice.

In Baren v. State, 30 Ill. Ct. Cl. 162 (1974), a pedestrian broke her foot when she stepped into a depression in a street. The evidence established that the hole measured three feet long, two feet wide and three to four inches deep, had existed for at least one month, and possibly three to four months before the accident. The Court in Baren found that the hole had existed a sufficient length of time to put the State on constructive notice. Id. Similarly in Collins v. State, 66 Ill. Ct. Cl. 145 (2014), a 75-year old motorcyclist injured his leg coming to a stop when he placed his foot down into a 15 inch long, 12 inch wide, 4 inch deep pothole, causing his motorcycle to tip over on his leg at the Illinois State Fairgrounds. Neither the claimant or witness in Collins could establish how long the pothole had existed prior to the injury, but both agreed that the pothole was not new. Id. at 151. The evidence established that several areas in the stretch of road where claimant was injured were not in good shape; the pothole in question may have formed during the Illinois State Fair two weeks prior to claimant's injury; and that the roadway where the pothole was located was heavily frequented by large trucks and trailers. Id. The Court concluded that the evidence made it “more than likely” that the pothole existed for a sufficient amount of time to place thE State on notice. Id. at 151-152.

Here, the record contains very little evidence to show how long the hole had existed in the handicapped parking space. Neither the witnesses nor Claimant could testify how long the hole existed only that the broken concrete creating the hole did not seem “new.” Beyond testimony that the hole “did not seem new” there is no evidence in the record supporting how long the hole at issue had existed (unlike the stretch of roadway in Collins being “not in good shape” and the heavy traffic around the hole). Further, Claimant has failed to prove that the hole was conspicuous, placing Respondent on constructive notice.

In Barr v. Frausto, 2016 Ill. App. (3d) 150014, ¶ 23, claimant's expert witness testified that a hole in a parkway that caused claimant's injury had existed for at least three years prior to [*155] the accident leading to claimant's injury. The court found that the value of the expert witness’ testimony was undercut by the claimant's own testimony when claimant “stated that he had traveled that same route on his walk or bike ride once a week for the past several years and that he never noticed the hole in that parkway.” Id. (citing Finley v. Mercer County, 172 Ill. App. 3d 30, 33-34, 526 N.E.2d 635, 122 Ill. Dec. 376 (1988)); see also Burke v. Grillo, 227 Ill. App. 3d 9, 18 (2nd Dist. 1992) (where the court found for the defendant notwithstanding evidence that the defect had existed for more than a year prior to the accident and grass was covering the hole. Because the claimant walked by the hole daily and never noticed it, the hole was not conspicuous).

Here, Claimant’s testimony undercuts her claim specifically. Claimant testified that she never noticed the defect before the injury and it “wasn’t visible.” She was shocked when she fell because the hole “wasn’t noticeable.” Significantly, Claimant has used these three handicapped parking spaces from 2014 until her fall on July 29, 2015, and never saw defects in the pavement. Clearly, the defect in question was not so conspicuous, as to put Respondent on constructive notice since Claimant never noticed the defect during months of parking in the same area where the injury occurred.

This Court finds that Respondent was not placed on actual notice or constructive notice of the defect at issue and therefore is not liable for Claimant’s injury.

CONCLUSION

For the foregoing reasons, this claim is denied.