Margaret Sivak v. State of Illinois

OPINION

MOORE, J. Margaret Sivak ("Claimant") brought this action against the State of Illinois ("State" or "Respondent"), claiming that the State was liable for injuries she suffered while visiting an office of the Illinois Secretary of State located in Bridgeview, Illinois on March 5, 2018. A hearing on the merits was held on March 10, 2022, and the parties filed post-hearing briefs on April 15, 2022, and April 28, 2022.

FACTS

On March 5, 2018, Claimant visited the Illinois Secretary of State facility at 7358 W. 87th St. in Bridgeview, Illinois (the "Facility"), for the purpose of renewing her driver's license. After completing her vision test and written test, Claimant had her picture taken. After taking her picture, she proceeded along a designated pathway to take her driving test. As she was walking, a kiosk used for administering the written driving test fell into her, hitting her left arm and hand, and knocking her down, causing injuries.

At the time of the accident Claimant was 78 years old.

The Facility and Testing Kiosks Testimony from Paula Kaczmarek, manager of the Facility from 2010 to the date of hearing, was submitted by the parties as a joint exhibit. Kaczmarek testified that the kiosk that fell was one of 10 new testing kiosks installed during a recent renovation. The kiosks are essentially enclosed desks with panels on the side and back for privacy. There is a small ledge on top of the kiosk to place smaller items. The tests are administered electronically, so each kiosk contains a monitor. The kiosks have metal legs and are heavy - Kaczmarek testified that she cannot move one on her own.

The kiosks at the Facility were designated numerically 1-10. Kiosks 1-8 were positioned so that the back of the kiosks were up against the wall. Kiosks 9 and 10 were not against the wall, and instead the back of the kiosks faced the section of the facility where pictures were taken. Visitors at the Facility would be directed to walk along the back of kiosks 9 and 10 after having their picture taken, to proceed to the next area.

[*261] Kiosks 9 and 10, in addition to not having a wall behind them, were not anchored nor secured in any manner. These two kiosks served as the designated handicap accessible kiosks for the Facility and were slightly larger than the kiosks 1-8. The chairs used at all the testing kiosks did not have arms, so an individual getting out of these chairs would not have anything to grasp, other than the testing kiosk.

The Kiosk That Fell

The kiosk that fell was kiosk 10, one of the two kiosks designated as handicap accessible, and without a wall behind it. The kiosk fell when an elderly man who was sitting at the kiosk caused it to fall forward. In attempting to get out of the chair at the kiosk, the man was asked by a passing state employee if he needed help. The man declined, but then apparently lost his balance and pushed kiosk 10, causing it to fall forward onto the Claimant. The elderly man also fell, but apparently was not injured.

Claimant’s Injuries

When struck by the kiosk, Claimant immediately experienced pain in her arm and severe pain in her hand, which had a laceration. Claimant had a hard time breathing and thought she may be suffering a heart attack. Emergency services were called and Claimant was taken to Palos Hospital. At the hospital, her hand laceration was cleaned and closed with butterfly stitches, and she was given oxygen. Claimant was put on a heart monitor and X-rays were taken of her left hand and wrist, as well as her chest.

Claimant was discharged from the hospital with a sling for her arm and a brace for her left hand and wrist. Following discharge, Claimant followed up with her doctor, Suman Setia, on March 8, 2018. In addition to the laceration on her left hand, she also had a contusion from the blunt trauma. She was diagnosed with a cervical and left shoulder strain, which is a tension in the muscle that causes pain. She was prescribed physical therapy twice a week for four weeks for the muscle strain.

She continued to return to Dr. Setia for follow-up and complained of pain in her left hand. She was diagnosed with hyperesthesia in her left hand, which is hypersensitivity and abnormal pain sensation. Dr Setia ordered an MRI of her hands, which found tendonitis in the left hand, and a mild subchondral edema, which is a mild collection of fluid under the cartilage in her hand, causing pain. Dr. Setia testified that both of these conditions were caused by the March 5, 2018, accident.

Claimant was prescribed pain medication and provided a brace for her left hand and wrist to stabilize the joints that were causing her pain. On June 26, 2018, Dr. Setia referred Claimant to a surgeon for an analysis of whether surgery may be necessary to correct the issues with her left hand. That doctor provided Claimant with a cortisone injection to address her pain, and Claimant testified that helped for approximately a month, but then the pain returned. Surgery was presented as an option to attempt to remove scar tissue that was wrapped around her nerves and tendons, but she declined due to her age in the possibility it may not be successful.

Claimant testified that following the accident, she had an occupational therapist come to her home to help her learn to move around the house with the limitations on her left hand.

Claimant did physical therapy to try and build strength in her left hand. Claimant continues to do some of these exercises today, such as squeezing playdough, but she is still unable to use her left hand to lift heavy objects.

[*262] As a result of the accident, Claimant testified that she experiences ongoing issues, including: · Pain in her arm and hand, particularly when she touches metal objects or forgets that she is not able to lift heavy things; · She is unable to lay on her left side; · Because she is not able to lift anything heavy, she is not able to cook large meals she used to cook for her family, or bake (which she used to do often), or do other chores, such as laundry and gardening, by herself.

Claimant has had to hire a caretaker for the last two years due her limitations after the accident. The caretaker comes for four hours, twice a week, to assist Claimant with her hair, which she can no longer roll on her own. The caretaker also takes her shopping and to the doctor and assists with chores around the house and gardening outside. The caretaker must also leave items such as milk, juices, and other bottles twisted half open so that Claimant can open them herself.

While Claimant testified credibly that she suffers from ongoing limitations and pain, Dr. Setia testified that he did not believe Claimant should suffer any permanent injuries. It is unclear from other testimony as to why Claimant continues to experience these limitations based on her doctor's diagnosis, however her testimony as to her ongoing limitations was credible.

LEGAL ANALYSIS

The State 's Liability The standard applicable to this case was stated in Creekmore v. State, 61 Ill.Ct.Cl. 282, 258 (2009):

In order to prevail, Claimant must establish a duty owed to Claimant, a breach of that duty, and damages resulting proximately from that breach, Chandler v. Illinois Central Railroad Co. 207 Ill.2d 331, 340, 298 N.E.2d 724, 729 (2003). It is undisputed that Respondent owes 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). In order to establish the breach of duty by Respondent the Claimant must establish actual or constructive notice of the defect. Bahl,49 Ill.Ct.Cl. 120.

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

In this case, the State failed to maintain the facility in a reasonably safe condition.

Specifically, a free-standing testing kiosk was placed in an area of high pedestrian traffic without being secured or anchored to prevent it from falling over. The kiosk was one of only two kiosks at the facility without a wall behind it. Further, by designating the kiosk as handicap accessible, and providing a chair without arms, it was more likely an elderly or physically limited individual may lean on the kiosk to stand up after taking a test. All of these factors establish that the kiosk was maintained in an unreasonable and unsafe manner.

Whether a legal duty exists is a question of law which is determined by the Court, and factors which are relevant to the existence of a legal duty include whether the injury was [*263] reasonably foreseeable, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden upon defendant. Ondes v. State, 43 Ill. Ct.

Cl. 272 (1991). In this case, a legal duty did exist for the State to guard against the danger of the kiosk falling on an invitee to the Facility. It was reasonably foreseeable that an elderly or physically limited individual may collide or lean on the kiosk, causing it to fall into the walkway behind it. The risk presented by this freestanding kiosk was significant, and the State did not present any evidence that the burden of anchoring the kiosk or otherwise securing it from falling was so great as to outweigh the potential danger.

The central argument made by the State is that it did not have notice of any dangerous condition. However, when the dangerous condition is created by the State, actual notice is inferred. For example, in Creekmore v. State, 61 Ill.Ct.Cl. 282, 283 (2009), the claimant was walking on state property when she fell. The fall was caused by a 6-inch hole in the ground created by State employees when removing temporary fencing. Id. In finding the State liable, the Court commented that while the State "is not the insurer of safety, it is responsible for hazards it creates," and that it is "axiomatic that if Respondent's employees create the hole they had notice of it." [Id. at 284-85; see also Daniels v. State, 53 Ill.Ct.Cl. 116 (2000) (notice of a dangerous condition was imputed to the State when State employees placed forklift extenders in a dangerous location).

In this case, the State created the dangerous condition by placing a testing kiosk in an area where invitees regularly walk, without anchoring or otherwise securing it.

Further, the State designated the kiosk as handicap accessible, and placed a chair without arms at the kiosk, increasing the likelihood that an elderly or physically limited individual might lean or otherwise place weight on the kiosk, causing it to fall.

The cases cited by the State are distinguishable. In Varon v. State, 46 Ill.Ct.Cl. 339 (1993), the claimant sought damages for a fall that allegedly was caused by a weight bench not being properly secured. The Court denied the claim based on the fact that the fall may have been caused by the claimant improperly using the bench, and because the bench had been in place for a number of years without any prior incidents. Claimant in this case is not alleged to have contributed in any way to the accident, and there was insufficient evidence to conclude how long the kiosk had been in place. To the extent the elderly gentleman may have "misused" the kiosk by leaning on it to get out of the seat, this was reasonably foreseeable based on the State's choice to designate the kiosk as handicap accessible, and providing an armless chair to sit in. The risk was reasonably preventable by either anchoring the kiosk, or placing it against the wall.

In Pakenham v. State, 50 Ill. Ct. Cl. 300 (1998), the claimant's claim was denied when she failed to provide proof of a dangerous condition. In Pakenham, the claimant was exiting a state facility when a door adjacent to the one she was using struck her foot, causing injury. The Court denied her claim because she provided no evidence that there was a defect or dangerous condition presented by the doors. Unlike in Pakenham, Claimant in this case was not traversing a pathway when injured by another person utilizing a door in the way it was intended, she was injured by a heavy desk falling onto her while walking on a designated pathway. The State created the unsafe condition that resulted in Claimant's injury, and is therefore liable.

Claimant's Damages

The cost of medical care claimed by Claimant is $33,401.73. That amount is undisputed and is therefore awarded. Claimant also requests $100,000 for past loss of normal life, $10,000 [*264] for future loss of a normal life, $100,000 for pain and suffering, and $10,000 for future pain and suffering.

Claimant is awarded $75,000 for pain and suffering and loss of normal life (both past and future). There is no question that Claimant suffered pain the day of the accident, in the months following the accident, and to this day. Claimant testified credibly that her life has been altered by not being able to utilize her left hand to perform everyday activities she used to perform.

Some recent precedent by the Court is worth noting. In Walker v. State, 73 Ill.Ct.Cl. 127, 135 (2021), the State was found liable for causing significant injuries to the claimant, including neck trauma that required surgery on his cervical spine. After a year, the claimant required a second surgery. The claimant testified as to significant ongoing limitations and was awarded $150,000 for pain and suffering and loss of a normal life. In making the award, the Court cited another case, Kmetz v. State, 09-CC-0653 (2016). In Kmetz, the Court awarded $100,000 for pain and suffering and a loss of a normal life to a claimant who suffered back and neck injuries, including a related surgery, as a result of a vehicle collision caused by a state trooper.

In Giovannetto v. State, 42 Ill.Ct.Cl. 106, 108 (1990), the claimant was awarded $75,000 when she suffered multiple transverse fractures in her spinal column after a fall caused by a broken railing at a state park. She was hospitalized for 10 days after her accident and then underwent orthopedic treatment for three years, and even after that continued to suffer ongoing pain and limitations.

In this case, Claimant’s injury does not rise to the level of Walker, Kmetz or Giovannetto.

Although serious, her injuries did not result in an extended hospital stay nor surgery. Her injuries are closest to Giovannetto, but her pain, suffering and limitations are less severe. We balance that with the time since the Giovannetto award. Therefore, the State is found liable to Claimant in the amount of $108,401.73.