Kenneth Britt and Rebekah Britt v. State of Illinois

OPINION

BIRNBAUM, CJ.

Claimants filed their complaint for personal injuries arising from an accident when a truck being driven by Kenneth Britt hit an I-beam that was jutting out of the ground on a trail within Horseshoe Lake State Park. Claimant Kenneth Britt seeks damages for his injuries.

Claimant Rebekah Britt seeks damages for loss of consortium. A hearing was held before Commissioner Ysursa on October 11, 2017; the record remained open for the submission of evidence depositions of physicians. The parties also submitted written closing arguments.

Claimant appeared through counsel D. Jeffrey Ezra, and Assistant Attorneys General Jamie Knodel and Louis Laugges represented the State.

I. Preliminary Matters

Prior to the hearing beginning, the Commissioner addressed a number of motion in limine and objections to proposed exhibits. The rulings are contained in the official record of proceedings and to the extent not contradicted by this opinion are maintained.

II. Background

The first witness was Claimant Kenneth Britt. Kenneth Britt testified that he currently lives in Granite City and has for almost his entire life. He is a custodian with Granite City School District. Prior to the accident, he described his health as “real good” and testified that he was very active. He testified that, prior to the accident in this case, he filed workers’ compensation cases, but none of the workers’ compensation cases involved his left shoulder, his neck, or his face. Kenneth Britt testified that prior to the accident he had a gastric bypass surgery. He testified that at one point, he weighed in excess of 360 pounds, but prior to the accident, he had lost over 100 pounds. Kenneth Britt testified that prior to the accident he hunted, fished, camped, worked around the house, worked on cars and undertook small construction projects.

Kenneth Britt then testified as to the incident on May 5, 2010, that is the subject of this lawsuit. Kenneth Britt stated that he went to Horseshoe Lake State Park to check out a boat launch. Claimants presented as evidence a map of Horseshoe Lake State Park in order to denote the path he traversed on the date in question. Kenneth Britt testified that he was driving on a trail, not a road, in an area of the Park that he had never been. He approached a knoll and proceeded up the knoll while leaning forward to see over the front of his hood as the incline obscured his [*102] view. He stated that he was going maybe 15 miles per hour up the knoll to its pinnacle. As he started the descent on the far side of the knoll, his vehicle hit something and came to a dead stop.

Claimants presented into evidence a group of pictures of the knoll area. Kenneth Britt testified that the pictures accurately depict the area in question on the date and time of the accident.² He stated that he took the pictures about four or five hours after the accident.

Kenneth Britt then described the accident. He stated that when his truck suddenly stopped that the right side of his face slammed into the steering wheel, snapping his head back. He immediately felt a stabbing pain in his neck and left shoulder. He said he was “out of it” for a few minutes. After gathering himself, he exited his vehicle to see what had happened. He testified that his truck hit an I-beam that was jutting out of the ground. Kenneth Britt identified a photograph that showed the I-beam. In order to remove his truck he used a hydraulic jack to get his truck off the I-beam. He then called 911 and an officer from the City of Madison, Illinois Police Department arrived at the scene and prepared a report. Kenneth Britt testified that the Ibeam appeared to be “mushroomed” which he opined was an indication that it had been hit a number of times previously. He testified that he had an estimate done of the damage to his truck but he never fixed it.

Kenneth Britt went home after the accident and was in severe pain. His wife told him to go to the hospital. He acquiesced by going to the emergency department at Gateway Regional Hospital. Claimants presented pictures of Kenneth Britt’s face taken by his wife immediately prior to going to the hospital. The physicians at Gateway informed him that he probably had a shoulder sprain and whiplash. A couple of days later he went to see his chiropractor, Dr. Mark Eavenson. He had treated with Dr. Eavenson previously. Dr. Eavenson referred him to Dr.

George Paletta, an orthopedic surgeon, and neurosurgeon, Dr. Matthew Gornett. Dr. Paletta diagnosed Kenneth Britt with a tear in his left rotator cuff, and performed surgery to repair the tear in February 2011. Dr. Eavenson consulted with Dr. Gornett during the treatment as sometimes shoulder problems can be caused by cervical spinal issues. Dr. Gornett conducted an MRI on Kenneth Britt’s neck which showed a herniated disc in his neck with two bulging discs.

Despite this, Dr. Gornett indicated that cervical surgery was not imminent. Kenneth Britt testified that he has declined cervical surgery because he worries about a bad outcome. However, he testified that the pain is getting to the point where it may be necessary. He stated that then Dr.

Paletta performed surgery on his left shoulder to repair the rotator cuff. After surgery, he underwent physical therapy.

Kenneth Britt testified as to his pain and suffering plus his loss of normal life. He stated that his shoulder is alright but it does limit him somewhat. His main continuing complaint deals with his neck. He stated that he cannot do heavy work, such as carpentry or work on cars. He stated that he used to frequently go camping and fishing with his family, but he cannot do so because of the pain in his neck. He conceded that he does still fish at times, but he cannot do so as much as he used to do in the past. He also testified that while he never sought treatment, he has felt depressed at time due to his limitations.

² Exhibit 37A depicts the incline of the knoll upon which Kenneth Britt was driving; Exhibit 37A2 shows the far side of the knoll; and Exhibit 37A3 is a picture of the actual I-beam.

[*103] On cross-examination, Kenneth Britt testified that he had never been back in the area of Horseshoe Lake State Park where the incident occurred. He also conceded that he was not on a road or trail that was maintained by the Park. He acknowledged his previous injuries and his gastric bypass surgery. He was also questioned about a lower back injury he sustained after this incident. He testified that he had surgery on his lower back and that his lower back is not perfect.

However, he testified the limitations on his life are due to his neck issues. Finally, Kenneth Britt was shown pictures from his wife’s Facebook page showing him doing activities such as gardening. He maintained that while he is accurately depicted in those Facebook posts, he could not do those activities like he could before the accident.

The next witness was James Gowen from the Illinois Department of Natural Resources, (“IDNR”), who was called by Claimants as an adverse witness. Gowen had worked at Horseshoe Lake State Park for about 20 years prior to the hearing and the remaining handful of years he served as the Site Superintendent. Gowen testified that IDNR employed one additional full-time employee, John Drannan, at Horseshoe Lake. Gowen testified that he, Drannan, and when available, summer temporary help, walked the entire park in grid layout each month. The purpose of the walk is for general maintenance and to look for any conditions that potentially posed a danger. He stated that when identified, any dangerous conditions would be repaired or removed. He testified that there were no documents to evidence the inspections. Gowen admitted that IDNR had a duty to remove hazards. Gowen testified that he has never personally seen the Ibeam in question, and that he was unaware of any issues with the trail back in May 2010. He testified that the incident did not occur on a roadway but was in the peninsula area of Horseshoe Lake State Park. He did not recall vehicles being in the area of the Park where the I-beam was located. He acknowledged that there were neither warning signs nor signs prohibiting vehicles from the area in question. He conceded that while traditional vehicles would not use the area, individuals would take all-terrain vehicles into the peninsula area.

The next witness was John Drannan, IDNR employee at Horseshoe Lake State Park since 2006. He is currently a Site Tech II. He testified that there is no manual on how to perform inspections at State parks. He believed that there are inspection documents, but cannot recall filling them out. He personally has seen the I-beam in question albeit he did not see it until about four years after the May 2010 incident when he was contacted about this lawsuit. He testified that when he viewed the I-beam it was imbedded in the ground and rusted and appeared to have been there for quite some time. He was presented with a photographic exhibit upon which he marked the area of the I-beam. He agreed that the picture showed the I-beam on the down slope of an incline and showed all-terrain vehicle tracks.

The fourth witness was Co-Claimant Rebekah Britt. She has been married to Kenneth Britt for approximately 25 years. Rebekah Britt testified as to the injuries sustained by her husband. She stated that prior to May 2010, Kenneth Britt was very active; aside from working, he hunted, fished, and worked on cars. He was also active around the house fixing things and working in the yard. She stated that Kenneth Britt and their boys would frequently hunt and fish together. Their daughter joined in when she was old enough. Rebekah Britt stated that they often went camping as a family.

[*104] Rebekah Britt testified that on the date of the incident, Kenneth Britt came home looking like he had been in a fight. She told him he needed to go to the hospital and he did. She testified that she took the pictures depicted and admitted as evidence on the date of the incident. She testified that Kenneth Britt cannot do many activities anymore because of his neck injury. She stated that he has trouble sleeping due to his pain. She also testified that she has noticed him being depressed. She attributes this to his pain and inability to do his normal activities. On crossexamination, she conceded that her husband has gone hunting and fishing on a couple of occasions since the accident but he has not done so as frequently.

Next, the Claimants presented the evidence deposition of Dr. Mark Eavenson. Dr.

Eavenson is a chiropractor that had previously treated Kenneth Britt. Dr. Eavenson testified that Kenneth Britt came to see him in September 2010. Dr. Eavenson took an oral history wherein Kenneth Britt described the accident he had with the I-beam back in May 2010. Dr. Eavenson saw Kenneth Britt for several weeks and things did not improve. He ordered diagnostic tests including MRIs, EMGs, and NCVs. Eventually Dr. Eavenson referred Kenneth Britt to orthopedic surgeon Dr. George Paletta and neurologist Dr. Matt Gornett. Dr. Eavenson testified that the medical treatment by Drs. Paletta and Gornet was medically necessary and that their medical bills were reasonable. While there was no objection, Dr. Eavenson did not establish that he possessed the expertise to opine as to the medical treatment performed by an orthopedic surgeon, Dr. Paletta, or a neurosurgeon, Dr. Gornet. Dr. Eavenson testified that his services were medically necessary to treat Kenneth Britt’s injuries and that his bills were reasonable and consistent with like charges.

Claimants then presented the evidence deposition of Dr. George Paletta. Dr. Paletta is an orthopedic surgeon who began to see Kenneth Britt on January 12, 2011, from a referral from Dr. Eavenson. Dr. Paletta’s treatment focused on Kenneth Britt’s left shoulder. During the first visit, he received an oral history from Kenneth Britt who described the May 2010 accident. He reviewed previous records and diagnostic tests. He diagnosed Kenneth Britt with a partially torn left rotator cuff. Dr. Paletta performed a surgery to repair the rotator cuff on February 10, 2011.

Dr. Paletta testified that prior to proceeding with surgery, he had Kenneth Britt consult with neurosurgeon Dr. Matthew Gornet. He testified that when a patient is having both neck and shoulder pain one must consult a neurosurgeon to ascertain how to proceed. Dr. Gornet examined Kenneth Britt’s neck and indicated that surgery was not imminently needed for the neck. On this basis, he opined that Dr. Paletta could proceed with the shoulder surgery. Dr.

Paletta testified that the shoulder surgery was successful. Dr. Paletta stated that the medical services provided by not only him but also the other treating physicians were medically necessary to treat Kenneth Britt’s injuries. He also testified that the medical bills were reasonable and customary for like services. Finally, Dr. Paletta causally connected Kenneth Britt’s injuries to the May 2010 accident.

In Respondent’s case in chief, it recalled James Gowen. Gowen stated that inspections are based upon a seasonal or as needed basis. He testified that the area in question is barricaded off to vehicular traffic. Gowen testified that the first he knew of the I-beam was when the State brought this lawsuit to his attention.

[*105] III. Analysis

Claimants assert a claim under a premises liability theory. In order to prevail for premises liability, Claimants must establish the owner and/or occupier of the land 1.) owed a duty to the Claimants; 2.) breached the duty; and 3.) damages resulted proximately there from. Salazar v.

Crown Enterprises, Inc., 328 Ill. App. 3d 735, 740, 767 N.E.2d 366, 371 (1st Dist. 2002). It is undisputed that the Respondent owes a duty to maintain its premises in reasonably safe conditions for the use of the public. Daniels v. State, 53 Ill. Ct. Cl. 116 (2000); Bahl v. State, 49 Ill. Ct. Cl. 120 (1997). In order to establish the breach of the duty by Respondent, the Claimants must establish actual or constructive notice of the defect. Bahl v. State, 49 Ill. Ct. Cl. 120 (1997).

While Respondent owes a duty of care, it is not an insurer of the safety of persons who visit its recreational property. Id.

In this case the property in question qualifies as a recreational area and as such the Illinois Recreational Use of Land and Water Area Act (745 ILCS 65/1 et. Seq.) (hereinafter Recreational Use Act) applies. The Recreational Use Act increases the typical negligence level needed to constitute a breach of the duty owed to entrants on land to willful and wanton conduct.

Section 3 of the Recreational Use Act states:

“Except as specifically recognized by or provided in Section 6 of this Act, an owner of land owes no duty of care to keep the premises safe for entry or use by any person for recreational or conservation purposes, or to give any warning of a natural or artificial dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.” See 745 ILCS 65/3.

However, Section 6 of the Recreational Use Act provides:

Nothing in this Act limits in any way any liability which otherwise exists:

(a) For willful and wanton failure to guard or warn against a dangerous condition, use, structure, or activity.

(b) For injury suffered in any case where the owner of land invites, as defined in subsection (f) of Section 2 of this Act, or charges the person or persons who enter or go on the land for the recreational use thereof. See 745 ILCS 65/6.3 The Court of Claims has addressed the standard contained in the Recreational Use Act in the matter of Sherman v. State, 51 Ill. Ct. Cl. 230 (1998). The Sherman Court held that the standard to prevail under the Recreational Use Act was not mere negligence but rather required willful and wanton conduct. See Sherman, 51 Ill. Ct. Cl. at 234. The Court defined willful and wanton as:

3 The Recreational Use Act was amended by Public Act 98-522 effective January 1, 2014, but the amendment is not pertinent to the issues in this case.

[*106] A willful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of the impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care. See Sherman v. State, 51 Ill. Ct. Cl. at 244.

Thus, in order to prevail in this case Claimant must establish that the State’s conduct was willful and wanton in regard to the I-beam at Horseshoe Lake State Park.

The Sherman case is also instructive as to what constitutes willful and wanton conduct in a recreational area. In Sherman, the claimant was injured after he struck a cable wire while riding his bicycle at the Rock Island Trail State Park. See Sherman, 51 Ill. Ct. Cl. 234-243. Rock Island State Park contained a long north-south trail that had been converted from an old railroad right of way. Id. The trail traversed multiple public roads, and when doing so, cable gates were installed to prevent vehicles from driving onto the trail. Id. Claimant was riding his bicycle on the trail when he struck a cable wire, fell off his bicycle, and suffered injury. Id. Claimant sued the State for failing to maintain the trail in a reasonably safe condition. Id. At the trial, an employee of IDNR testified that approximately 20,000 people used the Rock Island State Park trail annually and that he was aware of maybe four incidents, including the claimant in Sherman, involving the cable gates over the years. Id. A second IDNR employee testified that he was unaware of any incidents of bicyclists colliding with the cable wires. Id. The claimant presented an expert witness who testified that the cable wires constituted an unreasonably dangerous condition. Id.

Ultimately, the Sherman Court concluded that the claimant had not met his burden of proving willful and wanton conduct on the part of the respondent. The Court wrote:

To prevail on the merits in this claim, Claimant must prove by the preponderance of the evidence that, by using its cable gating system, Respondent acted in a willful and wanton manner. Claimant must specifically prove that Respondent either knew or failed to discover its cable gates were dangerous through recklessness or carelessness. Claimant has failed to meet his burden of proof. The only evidence presented regarding Respondent’s possible knowledge prior to Claimant’s accident that the cable gates were dangerous was testimony about prior accidents by Harold Deatheridge and the testimony of Professor Espeseth that he informed Jerry Schaefer during the development of the trail that cable gates were not used in Wisconsin because of safety concerns. This Court agrees with Respondent that Mr. Deatheridge’s testimony falls short of proving willful and wanton conduct. Except for Claimant’s accident, Mr. Deatheridge had no knowledge that could be imputed to Respondent of any accident involving a cable gate where the alleged cause of the accident was the inability to see a cable. This Court agrees with Respondent that Professor Espeseth’s informing Jerry Schaefer that cable gates were not used in Wisconsin did not put Respondent on notice that the particular cable gates Respondent would choose to use would be dangerous because a bicyclist would not see a cable. Claimant did not produce evidence that Respondent had received any complaints that people using the trail had difficulty [*107] seeing the cable. Claimant also did not provide evidence showing that Respondent failed to discover its cable gates were dangerous through recklessness or carelessness. See Sherman, 51 Ill. Ct. Cl. at 246-47.

The case at bar has less evidence of notice of a dangerous condition than Sherman. The IDNR employees in this case testified that they did not know the I-Beam existed, much less that there had ever been any accidents in the area due to the I-Beam. Kenneth Britt’s opinion testimony that the I-Beam had been hit previously because it was “mushroomed” has no foundation and is not evidence of prior accidents. Furthermore, the testimony from witnesses that all-terrain vehicles tracks were in the area in question does not mean that the area at issue was maintained for vehicular use, and therefore it was not foreseeable to Respondent that trucks would be driving in the area. Claimants have failed to meet the high standard of willful and wanton conduct as required under the Recreational Use Act (745 ILCS 65/1 et seq.).

BASED UPON THE FOREGOING, IT IS HEREBY ORDERED that Claimants’ claim is denied.