WENDY WASILEWSKI, Claimant v. STATE OF ILLINOIS, Respondent
Case summary
Claimant alleged negligence for a slip and fall at a DHS facility. The State moved to dismiss for failure to exhaust remedies against a third-party janitorial contractor, but the court denied the motion, finding no viable cause of action against the contractor and that pursuing it would be futile.
Statutes cited: 705 ILCS 505/25; 74 Ill. Admin. Code 790.60
Cases cited: Tunk v. State, 40 Ill. Ct. Cl. 1, 2 (1988)
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ORDER
BURNS, J. This cause coming before the Court on the Respondent's Motion to Dismiss pursuant to 735 ILCS 5/2-619(a). The Claimant filed a response. The Court having read the pleadings and being fully advised finds as follows:
Facts
The Claimant, Wendy Wasilewski, filed a tort complaint alleging negligence against the Respondents for injuries allegedly suffered in a slip and fall incident on June 15, 2015, at a Department of Human Services ("DHS") facility located at 700 South State Street in Elgin, Illinois.
Respondent State of Illinois has filed a motion to dismiss on the basis that the Claimant has not exhausted her remedies against other potential tortfeasors prior to pursuing a claim in this court, as required by the Court of Claims Act and Rules. Specifically, Respondent states that at the time of the alleged incident, the DHS facility was under a government contract with Sertoma Centre, Inc., ("Sertoma") a private third-party janitorial services firm, and that the Claimant failed to first pursue a remedy against Sertoma and/or its insurer.
Claimant filed a response in which it states that the Sertoma contract was for overnight cleaning services, and that the alleged slip and fall incident at issue occurred at around 10:15 a.m. due to a slippery or wet floor caused by either a spill or the act of mopping the floor by a security guard, circumstances that in either event would not involve and conduct by Sertoma or its agents. Thus, Claimants argue there is no possible cause of action against Sertoma and it would be futile to pursue a remedy against them.
Analysis
Section 25 of the Court of Claims Act states that any person who files a claim in the court shall, before seeking final determination of his or her claim, exhaust all other remedies and sources of recovery whether administrative or judicial. 705 ILCS 505/25. Section 790.60 of the Court of Claims Rules adopts this legislation but adds the proviso that "no frivolous or unreasonable action is required to be brought against any third-party in order to comply with his exhaustion of remedies requirement. 74 Ill. Admin. Code 790.60. Thus, we have held that a claimant need not pursue a particular remedy where there are no facts in the record to indicate that a favorable result would be possible. Tunk v. State, 40 Ill. Ct. Cl. 1,2 (1988) ("A remedy is a [*255] favorable result, not the process or means of seeking a result, or an unsupported theory of action.").
Here, the Claimant's Complaint, when taken together with her Response, alleges that the slip and fall incident at issue occurred around 10:15 a.m. on the day in question. The contract attached to the pleadings shows that Sertoma provided essentially overnight janitorial services, as it required them to be at the facility at 4 p.m. each day. The Respondent does not state that Sertoma was on duty during business hours on the date in question. Meanwhile, deposition testimony from the office manager and a DHS employee witness indicates that building staff would typically clean up spills such as this on their own once the facility opened for business.
Given the totality of the circumstances set forth in the pleadings we find no basis for requiring the Claimant here to sue Sertoma or its insurer. The pleadings and testimony show that Claimant is alleging that the incident took place at 10:15 a.m., well after the overnight cleaning crew would have left for the day, and as a result of a wet floor from a spill of some sort that even if left behind by the cleaning crew would have become the responsibility of regular staff at the facility once they arrived at the facility for the day. There simply does not appear to be any viable cause of action here against the overnight janitorial staff. As such, it would be futile to pursue a remedy against Sertoma or its insurer and Claimant need not do so in order to pursue her claim in this court.
IT IS HEREBY ORDERED that the Respondent's Motion to Dismiss is DENIED and the case referred back to a commissioner for further proceedings.