Darin Shane Hudson Executor for Estate of Ardell Polensky v. State of Illinois

Claimant is the executor for the Estate of Ardell Polensky, deceased. Claimant seeks money damages for the personal injuries Ardell Polensky sustained when she fell on a sidewalk at the Gateway Rest Area off of Interstate 64 near Mascoutah, Illinois in 2008. In lieu of an inperson hearing the Parties entered into a Joint Stipulation as to the Evidentiary Record. The documents comprising the evidentiary record consist of the medical records and bills of Claimant, (003-0394), photographs, (0395-0409), the evidence deposition of Patricia Bindrim, (0410-0427), the Complaint and various other pleadings filed in the case, (0432-0505), and discovery documents, (0506-0634). It is based upon this evidentiary record that the Court will issue its decision.

Background

On May 18, 2008, Ardell Polensky was at the Gateway Rest Area located off westbound Interstate 64 near Mascoutah, Illinois. Claimant alleges that while Polensky was walking on the rest area sidewalk, she tripped and fell due to the state of disrepair of the area where a hole in the ground had become present next to a raised portion of the sidewalk and was obscured by grass.

See 0437. In the Claimant’s Answers to Interrogatories, Polensky claims in relevant part: "Claimant was walking on the sidewalk from the building at the rest area to parking area when she stepped in a hole left by a displaced chunk of concrete that had broken off the sidewalk." See 0507. The incident report provides that Polensky reported: "Coming down newest sidewalk west bound side just about back to car new sidewalk joins old sidewalk corner broke and sunk down tripped and fell hurt ankle right and said left wrist hurt also time approx. 3:00pm 5-18-08 Sunday." See 0429.

The only testimony submitted was the evidence deposition of Patricia Bindrim. See 0410- 0427. Bindrim worked for Challenge Unlimited, Inc. See 0416. Her company contracted with the Respondent to maintain rest areas. Bindrim’s duties included cleaning the rest areas, supervising co-workers, ordering supplies, and inspecting the premises. See 0416-0417. In May of 2008, the Gateway Rest Area off of Interstate 64 was one of the rest areas that she supervised for Challenge Unlimited. See 0417. Part of her inspection duties included looking for cracks and defects in sidewalks. See 0417. She indicated that the Gateway Rest Area had locations on both sides of the highway, and she would rotate every two hours between the two sides. Bindrim was [*237] not working on the day of the fall as that was a Sunday. See 0418. She did work the day prior on Saturday May 17, 2008, and she stated that that she did not notice any problems with the sidewalks. See 0419. Bindrim testified that she had not been made aware of any complaints about the conditions of the sidewalks, and she had no knowledge of any prior incidents or falls.

See 0419. Bindrim testified that on May 19, 2008, the day after the fall, she prepared an incident report, but conceded that when she came to the rest area on May 19, 2008 she did not inspect the area in question. She did not witness the incident. She merely filled out the incident report based upon what others had informed her. See 0421-0422.

After her fall, Polensky was taken via ambulance to Belleville Memorial Hospital. See 0004-0005. At Belleville Memorial Hospital she was diagnosed with "1. Bimalleolar fracture subluxation right ankle. 2. Tip avulsion fracture distal fibula associated left ankle sprain." See 0024-0026. She underwent a surgical procedure to reduce the fracture of her right ankle. See 0038-0039. Polensky stayed at Belleville Memorial Hospital until she was transferred to the Memorial Convalescent Center on May 21, 2008. She stayed at the Memorial Convalescent Center until July 1, 2008. Polensky also complained that she suffered an aggravation of her lower back, and treated with Virginia Orthopedic & Spine. Finally, she underwent physical therapy back at her home in Virginia. There was no evidence as to loss of normal life other than what is gleaned from the medical record. There was no claim for lost wages or other economic loss.

Analysis

This is a claim for negligence against the State of Illinois for failing to maintain the sidewalk at the Gateway Rest Area in a reasonably safe condition. In order to prevail, Claimant must establish a duty owed to Polensky, a breach of that duty, and damages resulting proximately from that breach. Chandler v. Illinois Central Railroad Co., 207 Ill. 2d 331, 340, 798 N.E.2d 724, 729 (2003). It is undisputed that the Respondent owed a duty to maintain its premises in reasonably safe condition for the use of the public. Daniels v. State of Illinois, 53 Ill.

Ct. Cl. 116 (2000); Bahl v. State of Illinois, 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 property. Bahl v. State of Illinois, 49 Ill. Ct. Cl. 120 (1997). The Claimant bears the burden of proving that there was an actionable dangerous condition in the sidewalk. Respondent had actual or constructive notice of the defect in the sidewalk, and Polensky was injured due to the dangerous condition. See Laughary v. State of Illinois, 52 Ill. Ct. Cl. 187, 188 (2000); Simpson v. State of Illinois, 37 Ill.

Ct. Cl. 76 (1985).

A review of the photographs in the evidentiary record shows the area in question where Polensky fell. See 0396 - 0409. The first photograph in the record is of the actual construction of the sidewalk in 2006. See 0396. The next four photographs were taken by Polensky's husband four days following her fall. See 0398-0399. The final 17 photographs were taken by Polensky's counsel in 2014, six years following the fall. See 0401- 0409.

On the first photograph taken by Polensky's husband there is a marking on the photograph showing where Polensky actually fell. See 0398. A close inspection of the photographs taken by Polensky's husband shows that there was a crack in the sidewalk in the rounded corner where Polensky fell. See 0398-0399. This crack forms a small triangular area of concrete. In the 2014 photos, taken by Polensky's counsel, the triangular corner of the rounded edge is no longer part of the sidewalk; it is suggested it must have broken off between 2008 and 2014. See 0401-0409.

Polensky's counsel used a tape measure to document the change in elevation between the [*238] sidewalk and the ground adjacent thereto in the rounded corner area in the photographs taken in 2014. The change in elevation ranges from less than one inch in the triangular area where the sidewalk broke (see 0402-0404), and two inches in the beginning of rounded area of the sidewalk where there appears to be no defect (see 0405-0407). Polensky's counsel also measured the drop off of the straight section of the sidewalk (see 0408-0409), but the evidence does not indicate that Polensky fell in that area. It is based upon the stipulated photographs that Claimant must meet her burden of proving that the sidewalk in question constituted an unreasonably dangerous condition.

A review of all of the photographs demonstrates the following. First, when Polensky fell in 2008 there was a crack in the sidewalk. Second, the 2008 pictures do not include a measurement of the change in elevation on either side of the crack. However, when comparing the 2008 photos with the measurements in the 2014 photos it is clear that the unevenness is less than one inch. Third, the 2014 pictures show that the condition of the sidewalk between 2008 and 2014 changed as is evident from the fact that the triangular portion present in the 2008 photos is missing in 2014. Despite this change the 2014 photos are instructive as to the maximum possible evenness of the sidewalk in 2008. A review of all of the photographs leads us to the conclusion that in the area of Polensky's fall in 2008 any unevenness was less than one inch.

The Court of Claims has considered many "trip and fall" cases over the years. The Court has consistently adhered to the general rule that a change in elevation of less than two inches is not an actionable dangerous condition. See Laughary v. State of Illinois, 52 Ill. Ct. Cl. 187 (2000). The most instructive case is Chepan v. State of Illinois, 51 Ill. Ct. Cl. 201 (1998). In Chepan the claimant fell on a sidewalk at the Rend Lake rest stop off of Interstate 57. While walking on a sidewalk the claimant tripped and fell on a section of the sidewalk that was uneven by in excess of an inch. See Chepan v. State of Illinois, 51 Ill. Ct. Cl. at 202. The Chepan Court held that a deviation of the amount alleged in Chepan was ". . . too minor to be considered a "dangerous condition." See Chepan v. State of Illinois, 51 Ill. Ct. Cl. at 208. The Court of Claims also considered a trip and fall in the matter of Simpson v. State of Illinois, 37 Ill. Ct. Cl. 76 (1985). In Simpson the claimant fell at New Salem State Park on a walkway where the edge that borders the adjacent ground had a drop-off of one inch to one and half inches. See Simpson v.

State of Illinois, 37 Ill. Ct. Cl. at 77. The Simpson Court held that the drop-off in question did not create an unreasonable dangerous condition. See Simpson v. State of Illinois, 37 Ill. Ct. Cl. at 79.

Finally, in 2000 the Court of Claims considered the case of Laughary v. State of Illinois, 52 Ill.

Ct. Cl. 187 (2000). In Laughary a claimant fell on a sidewalk at the State Capitol Building. The claimant alleged that she tripped and fell when two separate slabs of concrete were uneven by about three-fourths of an inch. The Laughary Court held that such a minor defect was not actionable and wrote that ". . .the drop-off was less than two inches and . . . the general rule on such cases is that 'minor' defects in a walkway are not actionable." See Laughary v. State of Illinois, 52 Ill. Ct. Cl. at 190.

In this case, the Complaint alleges that Polensky fell on the sidewalk in area that had broken off. The Court notes that the photos taken by Polensky’s husband four days after the fall do not show any piece of the sidewalk as having actually broken off (see 0398-0399); however, the photos do show a crack in the lower triangular portion of the rounded edge of the sidewalk. This crack created an unevenness of less than one inch, but not a drop-off of greater than two inches. The Claimant bears the burden of proving by a preponderance of the evidence that the condition of the sidewalk posed an unreasonable risk to the safety of the intended users. Based upon the evidence [*239] presented in the stipulation, any condition of the sidewalk was de minimis and does not constitute an actionable dangerous condition.

Furthermore, even assuming that the defect was unreasonably dangerous and not de minimis, the Claimant has not established that Respondent had notice of any alleged dangerous condition. In order to prevail, the Claimant bears the burden that Respondent had actual or constructive notice of a dangerous condition. Langhary v. State of Illinois, 52 Ill. Ct. Cl. 187, 188 (2000); Simpson v. State of Illinois, 37 Ill. ct. Cl. 76 (1985). In this case the only testimony of the condition of the sidewalk was that of Patricia Bindrim. Bindrim testified that she had the responsibility to inspect the rest area in question, including the sidewalks. Bindrim testified that she did not notice any problems with the sidewalks the day before Claimant’s fall. Further, Bindrim testified that no one had made any complaints about the conditions of the sidewalks, and she was not aware of any prior incidents or falls. The Claimant presented no evidence that contradicts this testimony. Claimant has not met her burden of proving that Respondent had actual or constructive notice of a dangerous condition on the sidewalk.

In the end, Polensky unfortunately fell while walking on the Gateway Rest Area sidewalk.

However, not every fall on a sidewalk under the care of Respondent will support a recovery. The alleged defect in question was de minimis and therefore not actionable. There is no evidence that Respondent had actual or constructive notice of any defects in the sidewalk. For these reasons the claim is denied.

IT IS HEREBY ORDERED that the Claimant’s claim is DENIED.