Kenneth Munic v. State of Illinois

OPINION

SPRAGUE, J.

Claimant, Kenneth Munic, brings this claim in negligence for personal injuries suffered in a slip-and-fall accident outside the James R. Thompson Center (“JRTC”) during the afternoon of December 4, 2016. Claimant seeks damages in an amount of $360,944.08 for medical bills, pain and suffering, loss of normal life, and disfigurement.

FACTUAL BACKGROUND

A hearing on the merits of the claim was held. In addition to Claimant, testimony was heard from the following individuals, who on December 4, 2016, held the following positions: Lucie Habina of Winthrop Property Management, property manager of the JRTC’s Atrium mall; Jennifer Haley Perrin, facility manager of the JRTC; Frank Piraino, chief stationary engineer of the JRTC; and Michael O’Connor, stationary engineer of the JRTC. Testimony was heard via evidence deposition from Dr. Steven Sclamberg, Claimant’s treating physician.

Testimony of Claimant

At trial, Claimant testified that in December 2016, he was the manager of Ronny’s Steakhouse, his family business located in the JRTC. As manager, Claimant worked at least six days each week. On Sunday, December 4, 2016, he had arrived at the restaurant at 6:00 a.m. and entered through the Lake Street entrance, as was his custom. Sometime between 2:00 p.m. and 3:30 p.m., Claimant departed, exiting through the revolving doors on the Clark Street side of the JRTC. It was a cold and windy wintry day. Wearing his non-slip work shoes, Claimant walked toward the corner of Clark and Lake Streets, but walked a less-than-direct route, walking around other people. Before reaching the corner, he slipped on ice and fell hard, landing on his right shoulder. He slipped on a paver approximately four to five pavers south of the pillar at the corner of Clark and Lake Streets, and not on the sidewalk.

Claimant got up and saw ice on the ground. The amount of ice was “a substantial enough amount of ice to make [Claimant] fall.” Claimant testified that he went back inside the restaurant, probably called his mother, then again departed. Before going to his car, he returned to the location of his fall, looked up, and saw a light fixture leaking above where he fell. The drip was a steady drip. Later on December 4th, Claimant emailed Lucie Habina, his Winthrop Management contact, to alert her to the icy conditions and his fall outside the JRTC. Ms. Habina was Claimant’s regular [*128] point of contact for Ronny’s Steakhouse. While a fall outside the building was not within the scope of Claimant’s lease with Winthrop, Ms. Habina was the only person Claimant knew at the JRTC. Upon Ms. Habina’s suggestions, Claimant also filed a report with the Illinois State Police.

Seven to ten days following Claimant’s fall, he returned to the location of his fall to photograph the soffit. Claimant noticed water damage in the soffit above where he fell. Claimant testified that he gained experience assessing water leaks through his work as a restaurant manager and the extent of the water leak would not occur in the seven to ten days. Also, sometime after Claimant’s fall and after he had reported his fall to Ms. Habina, he took a photo of the location where he had fallen, because he noticed a cone had been placed at the location of his fall.

A day or so after Claimant’s fall, he sought medical treatment from Dr. Steven Sclamberg, an orthopedic surgeon who had repaired a previous tear in Claimant’s shoulder approximately one year earlier. By the time of Claimant’s fall at the JRTC, the earlier injury had healed to the point Claimant was pain free and had no restrictions or limitations on normal activity. Following Claimant’s fall at the JRTC, he felt severe pain. He obtained the first appointment available with Dr. Sclamberg who determined surgery was necessary to repair a tear in the labrum. While waiting for surgery, Claimant’s arm was immobilized in a sling, and he was in pain 24 hours each day. He continued to work during that time, but in a limited capacity, doing non-physical work. Following surgery, Dr. Sclamberg prescribed extensive physical therapy, home exercise, and rehab. Rehab was especially painful due to the buildup of scar tissue.

Claimant followed Dr. Sclamberg’s instructions. Nevertheless, Claimant is no longer symmetrical, his right shoulder sags. The scarring from his second surgery is much greater than from his first, the new scars itch, and he is self-conscious about them. Pain in his shoulder greatly limits or precludes activities that he previously enjoyed including yoga, weightlifting, and golf. Intercourse positioning is now limited. Sleep is often interrupted if he turns onto his right side.

Email to Lucie Habina

Claimant’s email to Ms. Habina reports a leak in the roof outside the door to Ronny’s Steakhouse causing water and ice to accumulate and reflects Claimant’s fall as making him end up “in the traffic lane on Clark.”

Testimony of Lucie Habina

Lucie Habina, manager of the retail area of the JRTC, commonly called “the Atrium,” testified that in December 2016 her management of day-to-day operations included interacting with tenants such as Claimant, to achieve both tenant compliance with lease obligations and tenant satisfaction. Winthrop had no maintenance responsibility for the exterior of the JRTC.

On December 5, 2016, Ms. Habina received an email from Claimant asserting he had slipped and fallen on ice outside the JRTC the day before and was injured. Ms. Habina did not see Claimant so did not see personally whether Claimant had been injured. She forwarded Claimant’s email to Jennifer Haley Perrin, facility manager of the JRTC, alerting her that Ms. Habina had contacted Brendan, the Atrium engineer; asked him to contact the JRTC engineers to place a cone [*129] in the area; and that a cone had been placed. Ms. Habina did not recall whether the cone was place by her engineer or the JRTC engineers.

Testimony of Jennifer Haley Perrin

Jennifer Haley Perrin testified that she was the facility manager of the JRTC on December 4, 2016, and directly supervised the JRTC’s chief stationary engineer, Frank Piraino. The JRTC’s physical plant staff was responsible for the maintenance of the JRTC, including the exterior. The JRTC is 1.2 million square feet, and the Clark Street side of the JRTC spans a city block, from Lake Street to Randolph Street.

On weekends, two building engineers are on duty to maintain the JRTC, including conducting exterior perimeter checks. When wintry weather is expected, the engineers are able to call in additional staff to help with snow removal or addressing icy conditions. On December 4, 2016, no additional staff needed to be called in to assist, and Ms. Perrin has no knowledge of any leaks being reported to her or anyone else during the 24-hour period immediately after Claimant’s fall. Ms. Perrin had met Claimant once or twice in the JRTC, related to Ronny’s Steakhouse, but only learned of his slip-and-fall through the instant case.

The third-floor overhang had previously been covered with granite, which was removed sometime after 2009, leaving the roof ledges exposed to the elements, but not necessarily vulnerable to them. Ms. Perrin could not recall any leaks from the third-floor roof on the Clark Street side. Ultimately, she did generally recall some problems with setback roofs and ledges at the JRTC in 2014 but could not recall precise location(s) or specifics as to any completed repairs. It is not her understand that any of these problems were related to prior removal of the granite.

Ms. Perrin identified evidence of water damage in August 2015 photos of the portion of the overhang at issue. However, the mere presence of water stains does not mean there is a problem at that location; it could also indicate a clogged drain, which would cause the water to enter the soffit but not necessarily to drip. The water could travel to another drain or could evaporate from within the soffit.

If a complaint about leaking water lights in the soffit had been reported or if State employees had independently discovered a leaking light in 2016, it would have been reported to Mr. Piraino, the chief engineer. It also could have been reported through the State’s work order system, which also would have reached Mr. Piraino. A change in the State’s computer program makes work orders from 2016 currently inaccessible, but if there had been an investigation done of a roof ledge leak following Claimant’s fall, there would be documentation of it.

Ms. Habina’s email to Ms. Perrin alerting her of Claimant’s fall was sent approximately 24 hours after Claimant’s fall. Multiple perimeter checks of the JRTC would have been conducted during that intervening time. No leaks were reported during those intervening 24 hours, although the now-unavailable work order system precludes that means of corroboration.

[*130] The area where Claimant fell is near a bus stop and is a busy area. Ms. Perrin has no knowledge of any leak above that general area at any time until 2019, over two years after Claimant’s slip-and-fall.

Testimony of Frank Piraino

Mr. Piraino testified that he was the chief stationary engineer at the JRTC on December 4, 2016. As such, Mr. Piraino oversaw the physical plant staff for the JRTC, whose duties included maintaining the exterior. During off hours, two stationary engineers staffed the JRTC. On a wintry day, the stationary engineers’ normal routine included walking around the exterior to inspect and salting or plowing as needed. They also had many other responsibilities related to maintaining the JRTC’s interior, and an interior emergency would take priority over exterior maintenance. If necessary, such as during active snowstorms, the two stationary engineers would call in additional maintenance staff. Logs are maintained that document salting or plowing, and the logs for December 4 and December 5, 2016, do not show any snow or ice removal work.

Mr. Piraino had regular interactions with Claimant related to Ronny’s Steakhouse, including related to employees of Ronny’s Steakhouse tracking grease outside their service door as they took the garbage out. Mr. Piraino does not recall any conversations with Brendan, from the Atrium mall, related to anyone slipping or falling around December 2016, nor had his staff reported any such conversations. Mr. Piraino learned about Claimant’s slip-and-fall from the instant lawsuit.

Mr. Piraino testified that the photo of the cone placed at the location where Claimant fell is not a JRTC cone, that JRTC cones have “JRTC” spray painted on all four sides, which this cone lacks. The Atrium mall employees have their own cones that look like this one, which they place outside from time to time, when cleaning an area, or working on air intake or a grill, for example.

During the five to ten years prior to and including December 2016, there were no leaks on the Clark Street side of the building. Any water spilling over the overhang area would fall on the street or curbside, beyond State property. If Mr. Piraino had been informed about a leak from the overhang, it would have been a priority to be repaired. While waiting for a repair, the area could be taped off or other warnings placed. In December 2016, there were no leaks or reports of leaks, and so no JRTC cones or other precautionary indicators were placed. Each of Mr. Piraino’s staff is trained to investigate any potentially dangerous condition, which they are expected to do immediately upon any report of such. However, if their investigation finds no evidence of a dangerous condition, such as finding an area reported as wet or icy as perfectly dry, then they would not report the condition. If the weather indicated a possible recurrence, the subsequent shifts would continue to check for any recurrence. If a leak from the soffit had been reported, the JRTC staff would be expected to both check the ground for water or ice, and to look for any leaking water from the soffit. If the staff saw evidence of a leak, the area should be immediately blocked off and the leak reported to Mr. Piraino.

[*131] Testimony of Michael O’Connor

Mr. O’Connor testified that he has worked at the JRTC for over 20 years. In December 2016, he was a day shift engineer at the JRTC, and was promoted to assistant chief stationary engineer around that time. Even prior to his promotion, he handled some assistant chief responsibilities such as oversight of outside contract work. He was a direct subordinate of Mr. Piraino. He knows Claimant as a tenant at the JRTC and first learned about Claimant’s slip-andfall through the present litigation.

Maintaining the exterior of the JRTC is the State’s responsibility, with the exception of the sidewalks on the outer perimeter, which are the responsibility of the City of Chicago. If a dangerous condition was discovered that could not be repaired immediately, a warning cone or other safety measure could be taken. Mr. O’Connor testified that only the JRTC physical plant staff has actual authority to place warning cones on the exterior of the JRTC, but sometimes other entities, such as the CTA, place cones. The cone shown in Claimant’s photo at the location where Claimant fell is not a JRTC cone. JRTC cones have “JRTC” stenciled on them. This cone looks similar to the cones the Atrium mall employees use.

During off hours, two stationary engineers are responsible for maintaining the exterior, including de-icing and salting. They do not have the full workload of the exterior, as garbage cleanup outside is left for weekday maintenance workers, and additional staff are called in during off hours for large snow events.

Mr. O’Connor was not aware of water leaking from the base of the soffit on the Clark Street side before Claimant’s fall. He was aware of repairs made to the area further south, at the front of the building, where the building curves, and was the State contact person for the roofing contractor. The repairs were not temporary, but the roofing contractor would not make a timeframe guarantee, which would be made with most work. Rather, a disclaimer was included that the roof could leak again sometime in the future, due to the amount of water at the curve of the front of the building. Water collected at the curve because there was no drain there. The repair ended where the curve met Clark Street.

The JRTC physical plant staff took the roofing contractor’s disclaimer seriously and during exterior perimeter checks were on the lookout for any water leaking or puddles and would report that finding.

Testimony of Dr. Steven Sclamberg and Medical Bills

By agreement of the parties, the evidence deposition testimony of Dr. Steven Sclamberg, an orthopedic surgeon who treated Claimant, was entered into evidence. The parties also stipulated to the admission of Claimant’s medical records and bills, in the amount of $60,944.08, related to Claimant’s injuries sustained on December 4, 2016, and that the healthcare services received by Claimant were reasonable and customary.

Dr. Sclamberg had operated on Claimant’s shoulder prior to Claimant’s fall at issue here and had discharged Claimant in June 2015 with full active and passive range of motion, full [*132] strength recovery, negative impingement, and zero pain reported. Dr. Sclamberg next examined Claimant on December 6, 2016, when Claimant reported constant, sharp pain. A physical exam revealed a diminished range of motion and an MRI revealed tearing of the labrum and of the superior glenoid labrum. The injuries required surgery, which Dr. Sclamberg performed on January 11, 2017. Dr. Sclamberg also supervised Claimant’s post-surgery recovery, which included keeping his arm in a sling for two weeks, then undergoing physical therapy and strength training, which course typically ends six to eight months after surgery.

Claimant will be predisposed to have slightly earlier-onset arthritis in the injured shoulder and a slightly higher risk of dislocation. If he still experiences pain while doing certain activities, it is likely to be permanent.

ANALYSIS

Claimant has stated a claim for negligence. In order to prevail, Claimant must establish, by a preponderance of the evidence: (1) the existence of a duty owed to him by the Respondent; (2) a breach of that duty by the Respondent; and (3) that the breach proximately caused the claimant's damages. Rivera v. State of Illinois, Department of Transportation, 63 Ill. Ct. Cl. 218, 224 (2011) (additional cites omitted).

The State of Illinois is not an insurer of all people traversing State property. See Bahl v. State, 49 Ill. Ct. Cl. 120 (1997). However, the State owes a duty of reasonable care to maintain its premises in a safe condition. Id. Here, Claimant alleges Respondent breached its duty by failing to maintain the outdoor area of the JRTC, both the specific location where Claimant alleges he fell and the third-floor overhang over that area, in a reasonably safe condition.

A threshold issue is whether Claimant fell on State property. This is a disputed issue. At trial, Claimant testified that he slipped and fell on pavers under the overhang of the JRTC. This area is State property. Claimant testified with specificity that, weaving around the many people outdoors at that time, he slipped and fell approximately four or five pavers south of the pillar nearest the corner of Clark and Lake Streets. Claimant further testified explicitly that he did not fall on the black pavers nearest to the street, which are the public sidewalk. Claimant also testified that he saw a leaking light fixture nearly directly overhead of the location where he fell.

However, Claimant’s testimony is inconsistent with his email to Lucie Habina, which he sent only hours after his fall. In that email, Claimant recounted that he had slipped on ice from a dripping light fixture and ended up in the traffic lane of Clark Street. The location Claimant identified in his near-contemporaneous email differs materially from Claimant’s trial testimony. The location Claimant identified in his email is separated by pavers, which constitute the public sidewalk, from the location Claimant identified at trial. While it may be possible for an individual to slip on ice on State property and then slide across the public sidewalk pavers and end up on Clark Street, that was not Claimant’s testimony at trial. Respondent disputes Claimant fell outside the JRTC at all.

The Court finds Claimant’s testimony credible that he fell somewhere outside the JRTC on the afternoon of December 4, 2016. However, given the inconsistency in evidence as to the location [*133] of his fall, the Court find that Claimant has not established a specific location of his slip-and-fall. Thus, Claimant has not established that his fall was on State property, or triggered any duty owed to him by the State.

Even if Claimant did slip on State property, Claimant has not shown that the State had either actual or constructive notice of any ice upon which he slipped. To prevail, Claimant must prove by a preponderance of the evidence that a dangerous condition existed, that the State had actual or constructive notice of that condition, and that it proximately caused Claimant’s injuries. Simpson v. State of Illinois, 37 Ill. Ct. Cl. 76, 78 (1985)(additional cite omitted).

Claimant offered no evidence that the State had actual knowledge of ice on the Clark Street side of the JRTC on December 4, 2016.

Constructive notice may be imputed to Respondent where the icy hazard is so substantial that notice should be imputed, or the dangerous ice existed for a sufficiently long time that it should have been discovered. Bouchez v. State of Illinois, 18CC2817, opinion January 15, 2020 (additional cites omitted). Whether the ice was substantial enough and existed for a sufficient length of time to impute notice to Respondent is fact specific. Claimant cites case law where the specific facts were sufficient to impute notice. See e.g., DeLaurentis v. State of Illinois, 72 Ill. Ct. Cl. 127, 133 (2019)(puddle inside JRTC approximately one-inch deep and two feet in diameter; would have taken significant time to reach this size). However, Claimant here offered no facts regarding the size of any ice he encountered, and testified only to his own legal conclusion that the ice was “a substantial enough amount of ice to make [Claimant] fall.” Claimant testified that he saw water leaking from a light fixture and argues the length of time it would take for a drip to develop into ice is sufficient to impute notice. The problem for Claimant remains that he has not offered any evidence to establish any facts of the alleged ice that would enable the Court to impute any length of time necessary for such ice to form.

Claimant alternatively argues that the third-floor soffit’s leak is itself a dangerous condition of which the State had actual and constructive notice. Given the uncertainty as to the location of Claimant’s fall, the Court does not find Claimant has established that a drip from the third-floor soffit has a causal connection to any ice he may have encountered. However, even if he could establish this, Claimant has not established that the State had actual or constructive notice of such a leak.

Beyond his own testimony of a leak that day, Claimant offered a photo of water damage above the location Claimant now claims is the location of his fall. However, Jennifer Haley Perrin identified the same water damage in a much older August 2015 photo. Ms. Perrin testified the water damage could have been from water infiltration, not necessarily a leak, and the water could have traveled to another location or evaporated from within the soffit. The old water damage stains, that did not appear to worsen during the sixteen months prior to Claimant’s fall, do not prove a leak existed at the time or location of Claimant’s fall.

Claimant also offers communication from a roofing contractor with the State in 2014, wherein the contractor includes a sentence that future leaks in the soffits at the JRTC are possible. Mr. O’Connor testified that the contractor repaired the soffit above the main entrance to the JRTC, [*134] at the curve, where there are no drains, and not toward the intersection of Clark and Lake Streets where Claimant fell. These were permanent repairs but did not come with a time-specified guarantee. Regardless, the lack of a 2014 contractor guarantee against potential future leaks in the JRTC overhang generally does not by itself establish either actual or constructive notice as to a specific leak in 2016, when there were no reported leaks in the soffit along Clark Street prior to Claimant’s fall. Unlike in Buckingham v. State of Illinois, where there was testimony from multiple State employees that the skylight above the claimant's fall leaked nearly every time it rained, here, there is no direct evidence that the light fixture and/or soffit at issue had ever leaked. Buckingham v. State of Illinois, 66 Ill. Ct. Cl. 201 (2014).

The testimony of Mr. Piraino, Mr. O’Connor, and Ms. Perrin was consistent as to the multiple-times-per-day exterior perimeter checks that JRTC stationary engineers conduct to check for any outdoor problems, including icy conditions. Weighing Claimant’s conflicting testimony as to the location of his fall, and thus both the location of any ice, as well as whether it was related to any overhead leak, against the consistent testimony of the state employees regarding exterior perimeter checks and the absence of any reported leaks or ice, the Court find Claimant has not met his burden of proving Respondent had constructive knowledge of either ice or a leaking soffit on the Clark Street side of the JRTC on December 4, 2016.

As Claimant has not established that Respondent had either actual or constructive notice of hazardous ice, Claimant has not met his burden of establishing by a preponderance of the evidence that Respondent breached its duty, and Claimant’s claim of negligence is denied.

In his post-trial Reply brief, Claimant included a motion to strike any argument that he had failed to mitigate his damages as Respondent did not plead failure to mitigate damages as an affirmative defense. However, given the Court’s ruling, the motion is moot.

Based on the foregoing, we find that the claim must be denied, and is hereby dismissed with prejudice.