Kimberly Lasso v. State of Illinois

OPINION

This matter comes to the Court on the Claimant’s Complaint and a hearing on the merits before a Court Commissioner:

I. Preliminary Matter

1. Claimant, Kimberly Lasso, filed by and through her attorneys, Corboy & Demetrio, Complaint at Law, and was received on May 10, 2017. 2. Respondent, State of Illinois, University of Illinois Hospital, and the Board of Trustees of the University of Illinois by way of the Attorney General of Illinois, filed Respondent’s first affirmative Defense on November 14, 2017. 3. Claimant filed her reply to the Respondent’s First Affirmative Defense of the Respondent, and the Board of Trustees of the University of Illinois and was received as filed February 8, 2018. 4. Claimant filed a Motion to Strike Respondent’s Affirmative Defense on March 8, 2018. 5. Respondent filed their Objection to the Claimant’s Motion to Strike Respondent’s Affirmative Defense on March 21, 2018. 6. This Court held a hearing on the Claimant’s complaint on July 26, 2023. 7. The Respondent the Board of Trustees of the University of Illinois by and through its attorneys, Kralovec & Marquard, chartered their Brief and Argument in Support of the Respondent’s Position After Trial filed on November 8, 2023. 8. With leave of court, the Claimant filed an Amended Complaint at Law on November 22, 2023. 9. The Claimant filed a Rebuttal Brief and Argument in Support of Her Position After Trial on November 22, 2023.

II. Background

[*215] 1. At all times relevant, the Claimant was an employee at the University of Illinois Chicago Hospital (UIC Hospital”) 2. On May 10, 2017, the Claimant filed a Complaint against the State of Illinois, the University of Illinois Hospital, and the Board of Trustees of the University of Illinois seeking damages in the amount outlined therein. 3. On November 22, 2023, the Claimant filed an Amended Complaint against the same. 4. On August 24, 2022, the Claimant filed his Complaint in the Court of Claims against the State of Illinois. The Claimant is seeking damages for $300,000 under 705 ILCS 505/22-1: a) Damages sustained from the state of Illinois for negligence resulting in $300,000.00 for medical bills, pain and suffering, loss of normal life, and lost earnings. 5. The Claimant alleges that on May 16, 2016, the Claimant was employed as a medical biller at the University of Illinois Hospital and worked at a hospital building located at 1855 W. Taylor Street in Chicago. 6. When her shift ended at 5:00p.m., she followed her usual exit route, which involved traversing an interior overpass to a different hospital building where she clocked out, then traversing a second overpass to the main hospital building at 1740 W Taylor Street. 7. The Claimant rode an elevator down to the main floor, made two right turns to reach the main hallway, then headed north through the main hallway toward an exit onto a pedestrian-only thoroughfare and toward the public transit Pink Line train. 8. The Claimant alleges that the floor of the main hallway is a white-speckled, hard terrazzo floor. 9. The Claimant alleges that she was dressed in her typical work attire: business casual clothing and Clark’s rubber-soled, non-skid shoes. She carried an over-theshoulder bag, wore a fanny pack around her waist, and was walking at a normal pace that day. The distance the Claimant needed to walk through the main hallway was approximately 300 feet. 10. There were other people coming and going but the hallway did not seem busy. 11. As the Claimant walked through the main hallway through the exit door, but before crossing the small hallway that leads to the bathroom and a janitor closet, without warning, her left foot slipped out and she fell, landing hard. 12. She was in the main hallway approximately in from of Maria Lopez’s office, office 1170. After her fall, people swarmed around the Claimant, including Maria Lopez.

[*216] 13. The Claimant asked Ms. Lopez what she fell on, and Ms. Lopez replied there were two streaks of water on the floor and that she was going to call housekeeping immediately to take care of it. 14. The Claimant stated that from her vantage point on the floor, she was able to see the two consistent streaks of water, approximately two feet apart. She could see the clear streaks that went straight ahead but could not see where they ended. 15. Maria Lopez testified that she told the Claimant they went all the way down the hall and around to the elevators. 16. The Claimant was familiar with the different styles of housekeeping carts used to clean the hospital and had seen them in use to clean a bathroom near where she fell. The width of the streaks of liquid on the hallway floor was consistent with the width of the wheels for one of the housekeeping carts. 17. The Claimant was assisted by two Emergency Room nurses, who transported her by wheelchair to the emergency room. 18. X-rays were taken of Claimant’s right foot, left hand, left wrist, left elbow, left shoulder, and neck. Her left arm was immobilized in a half-cast from her shoulder to her knuckles. She felt burning and pulling pain from her fingers to her shoulder and neck. She was given ibuprofen and took the Pink Line home. 19. The next day, Claimant reported to work but was unable to perform her duties. Per her employer’s protocol, she informed Employee Health of her inability to work due to the injury. 20. A few days later, Claimant was treated by orthopedic surgeon Dr. Benjamin Goldberg. Dr. Goldberg determined Claimant had torn ligaments on both the outside and inside of her elbow, and fractures on both the outside and inside of her elbow joint. 21. Dr. Goldberg performed surgery lasting thirty to forty minutes, using both regional and general anesthetics. One fracture had such shattered bone that he could not use screws to repair it. The repair was more difficult and required longer immobilization than usual. 22. Following the elbow surgery, Claimant had a cast from her shoulder to her knuckles, and her pain was an 8 out of 10. The cast could not get wet and allowed only a limited range of motion, which caused difficulty and sometimes prohibited the Claimant from performing everyday tasks such as eating, and dressing. 23. The Claimant wore a full cast for approximately four weeks, during which time she was unable to work. After the full cast was removed, the Claimant was improving but did not have the full range of motion so was prescribed physical therapy. 24. The Claimant still had wrist pain and was referred to Dr. Mejia to address her wrist complaints. Dr. Mejia prescribed wearing a wrist splint and physical [*217] therapy for her wrist. The Claimant also received physical therapy for her neck injury. 25. The Claimant’s physical therapy sessions lasted forty-five minutes to an hour.

The Claimant completed thirty-nine physical therapy sessions in total. 26. Today her wrist is pain-free, but has reduced strength. Her elbow is generally fully functional but occasionally - approximately once per month - still locks up.

Both her wrist and elbow issues are triggered by heavy lifting. She has modified her everyday life to accommodate, such as bringing a backpack or chopping cart to avoid carrying anything heavy in bags. Her neck pain comes and goes but is generally back to where it was pre-fall; she had had a prior neck injury. 27. According to Dr. Goldberg, Claimant does not have full range of motion with her left arm, but is 95-98% recovered; the small difference is not clinically relevant. When she reaches the end of her range of motion, it may be uncomfortable to engage in such activities as carrying heavy groceries or styling her own hair in a low ponytail. She likely will not improve and may get slightly worse over the next couple of decades. She is more likely to develop arthritis but not to need treatment for it. 28. Claimant suffered bruising and swelling of her right foot and aggravation of pre-existing migraines. Prior to her fall, Claimant suffered migraine headaches that would usually last two days. Following her fall, the migraines lasted longer, for approximately five days per episode. She treated them with Relpax and Eltriptan. The Claimant’s migraines tended to last for the longer duration for a couple years after her fall, but are now back to their shorter duration. 29. Claimant is the primary caregiver of her 83-year-old mother. The Claimant’s wrist and elbow injuries affect the Claimant’s ability to lift her mother, which she had been able to do so before her injury. 30. Claimant’s last day of related medical treatment was in June 2017. Her medical bills total $69,129.80. Dr. Goldberg testified that the injuries the Claimant sustained were due to her fall and that her medical bills were fair and reasonable. 31. At the time of her fall, the Claimant was an hourly hospital employee earning $20.51/hour plus an overtime rate of time and a half. She was completely off work during the time she was in a full arm cast, with her last day of missed work on June 13, 2016. She continued to miss partial days of work to attend physical therapy sessions. 32. The location where the Claimant fell was in the main hallway, near a secondary hallway that leads to a women’s bathroom, a men’s bathroom, a janitor closet, administrative offices, a security office, and more. Across from the secondary hallway is the cafeteria. Straight ahead, the main hallway leads to the north exit, which was open to the public at the time of day of the Claimant’s fall, but is mainly used by employees. The north exit leads to the Blue Line and Pink Line rapid transit and bus stops for multiple bus routes.

[*218] 33. At the time of the Claimant’s fall, the housekeeping team operated three shifts.

The Claimant fell just after 5:00 p.m., which is during the second housekeeping shift of 3:00 p.m. to 11:30 p.m. Floor cleaning and buffing machines are only used during the third shift’s overnight hours, when the hallway floors are scrubbed and buffed, making them shiny. During the second shift, the main hallway is only cleaned if there is a special need such as a spill. 34. UIC Hospital’s housekeeping employees used rolling Rubbermaid housekeeping carts with wheels. Housekeeping carts are stored in the various janitors’ closets around the hospital because they are used on almost every shift.

Per Karen Baker, the first floor of the main hospital has two such janitor’s closets, with one being nearby where the Claimant fell. Housekeeping employees enter the janitor’s closets to prepare their carts. Each housekeeping cart has a blue plastic bucket on one end of the cart. The bucket is not secured to the cart but can simply be lifted off. 35. The Housekeeping employees use the J-fill system to prepare the solution for their buckets. 36. Wanda Quillie the Building Service Supervisor, and housekeeper employed at the University of Illinois Chicago at the time of the incident, testified as to the correct protocol for filling the buckets with the Hospital’s J-fill system. 37. The J-fill system automatically adds water to the cleaner to get the correct concentration as it fills the bucket and, per her training, correctly preparing the bucket would result in only approximately 3 inches of solution in a bucket. She was unaware of a bucket on a housekeeping cart ever leaked but opined that if a bucket had leaked, a housekeeping employee would be expected to detect the leak while filling the bucket, and common sense would be to call a supervisor to request a new mop bucket. 38. The cleaning solutions used in May 2016 were Virex 256 and Stride. Once diluted with water, either solution would appear nearly clear in a housekeeping employee’s bucket. 39. Karen Baker the Assistant Director, Facilities Management/Environmental Services for the University of Illinois-Chicago, testified that at the time of the Claimant’s fall, public bathrooms were cleaned every hour. During the second shift, the housekeeping staff also cleaned all the offices, resulting in housekeeping employees likely being in the main hallway every hour or so. 40. Wanda Quillie testified that housekeeping employees would use the housekeeping carts to clean bathrooms and that public bathrooms would at least be monitored for cleanliness every hour on the hour. 41. At the time of the Claimant’s fall, the Claimant did not see any cleaning equipment in the area, nor was anyone actively cleaning the hallway. The Claimant saw a warning cone put up after her fall.

[*219] 42. The Claimant testified the width of the wheels on housekeeping carts is consistent with the width if the streaks in the hallway that she saw after she had fallen, which were slightly wider than her shoulders, and approximately two feet apart. Photographic evidence shows the cart wheels are twenty inches apart. 43. In this action, the Claimant seeks damages for medical costs that the Claimant testified have been paid ($69,129.80), lost wages ($5,128.69), and past and future pain and suffering and disability ($225,741.51), for a total claim of $300,000. 44. The Claimant has stated a negligence claim. To prevail, the 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 Claimant’s damages. See Johnson v. State, 50 Ill. Ct.

Cl. 153, 158 (1997) (citing Kraemer v. State, 42 Ill. Ct. Cl. 236, 245 (1990)).

III. Legal Analysis

a. Duty and Breach 45. The Respondent owed a duty of reasonable care to invitees in maintaining its buildings. However, the State is not an insurer of the safety of all people visiting its buildings. Berger v. Bd. Of Trustees of the Univ. of Illinois (1988) 40 Ill. Ct. Cl. 120, 124; Byrd v. State (1997) 50 Ill. Ct. Cl. 280, 283. The question for the Court is whether the Respondent breached its duty of reasonable care to the Claimant. To establish such a breach, a claimant has the burden of proving by preponderance of the evidence that Respondent created alleged dangerous conditions or that Respondent had notice of the dangerous condition and failed to correct it. Fausch v. Bd. Of Trustees of the Univ. of Illinois, 42, Ill. Ct. Cl. 175 (1989)(additional cite omitted); Reed v. Wal-Mart Stores, Inc., 298 Ill. App. 3d 712 (4th Dist. 1998). Here, the Claimant alleges a housekeeping employee of the Respondent actually created the dangerous condition. 46. Through the admission of Maria Lopez, Respondent’s employee, Claimant has established that streaks of water went all the way down the main hallway of UIC Hospital from the location of Claimant’s fall. Thus, the Claimant has established that a dangerous condition existed. As to evidence that a housekeeping employee of Respondent created the streaks of water, Claimant has offered the following circumstantial evidence: (1) The Claimant testified the streaks of water were approximately two feet, or shoulder-width, apart. While Respondent argues Claimant previously claimed they were two feet “or more” apart, her testimony has consistently described them as approximately two feet apart, whether slightly more or less. (2) The housekeeping carts used to clean the first floor of the hospital have wheels that are twenty inches apart - just under two feet. (3) One of two janitors’ closets on the first floor of the hospital is near where the Claimant fell. The closets are used to store housekeeping carts and are where the housekeeping team members prepare their cleaning buckets.

[*220] (4) During the second shift when Claimant fell, housekeeping staff would have been cleaning all first-floor offices, and so likely would be in the main hallway every hour. (5) The housekeeping carts have buckets of cleaning solution on them. Wanda Quillie testified the level of cleaning solution should only be approximately three inches deep. (6) The testimony of Wanda Quillie, as well as photographic evidence of the housekeeping carts, establish the location of the bucket of liquid on the housekeeping carts, and that the “hood” of the cart where certain cleaning supplies are kept would obscure the view of an employee pushing the cart from seeing any leak from the bucket. (7) The testimony of Karen Baker and Wanda Quillie established that the bathroom near where the Claimant fell likely would have been cleaned at 5:00 p.m. (8) The Claimant fell shortly after 5:00 p.m. 47. Both parties recognized their post-trial briefs that the Claimant could not meet her burden if the cause of her fall was speculative. However, circumstantial evidence can be sufficient to establish that the Respondent’s employee created the dangerous condition. See Donoho v. O’Connell’s, Inc., 13 Ill.2d 113, 120 (1958) citing Sundberg v. Boal, 320 Ill. App 138 (1943). 48. Respondent attempted to impeach Claimant with her May 2016 email exchange with Maria Lopez, in which she wrote that the streaks of water “went all the way to the [exit] doors,” while at trial testifying the streaks went only to the small, intersecting hallway that contained the janitor’s closet and bathrooms, which would be short of the actual exit doors. Based on the location of the small hallway intersecting the main hallway just before the vestibule to the exit doors - and both being approximately 300 feet away from where the Claimant first entered the main hallway. The Court does not find Claimant’s testimony materially inconsistent. 49. Respondent further argues that Claimant has not shown the streaks of water are more likely to have come from housekeeping cart rather than a rolling suitcase or something else on wheels. The Claimant responds that only a wheeled cart with its own source of water could create water streaks for the entirety of the main hallway. 50. This Court has previously considered somewhat similar facts in Aikas v. State of Illinois, 63 Ill. Ct. Cl. 166 (2011). There, the Claimant alleged she slipped and fell on a puddle of water on the floor of the University hallway, outside a janitor’s closet, and there were a mop and bucket nearby. Id. 51. Unlike this case, in Aikas, (1) The Claimant did not make the argument - or offer evidence beyond disputed testimony of a nearby mop and bucket - that the Respondent’s employee had created a the pool of water, and could not establish [*221] that Respondent had notice of the water and (2) a janitor testified that he had entered the janitor’s closet five to ten minutes prior to the Claimant’s fall and had not seen water on the floor at that time, but that after the fall he retrieved a mop and bucket from the janitor’s closet and (3) a second University employee entered the janitor’s closet five minutes before the claimant’s fall and also did not observe any water on the floor before entering. Id. Under those facts, the Court found the lack of notice was fatal to the claimant’s claim. Id. 52. In this case, the Court finds Claimant has established that the width of the streaks of water are the same width as the wheels on the cleaning cart and that whatever created the streaks would have had to have its own source of water to create streaks of over 300 feet. The housekeeping cart’s bucket of clear cleaning solution would be such a source. 53. In contrast to Aikas, here Respondent’s employee’s testimony bolsters Claimant’s argument: the testimony of Karen Baker establishes that the nearby bathroom would have been cleaned at 5:00 p.m., and that the janitor’s closet - being one of only two on the floor - would have been in heavy use for housekeeping staff at that time of day, while they cleaned every office on the floor. The structure of the housekeeping cart makes it likely that a leak could easily be undetected by an employee using the cart. 54. As a general rule, a court will not infer an ultimate fact - such as caution - through inference unless no other reasonable theory exists. Dennis v. State of Illinois, 51 Ill Ct. Cl. 142, 151 (1998)(reconsideration denied). However, given the totality of the evidence, while a close call, the Court Finds Claimant has met her burden of showing by a preponderance of the evidence that Respondent’s housekeeping staff created the streaks of water on the floor, thus breaching its duty to Claimant. b. Proximate Cause 55. The Claimant must also prove that the streaks of liquid proximately caused the Claimant’s injuries. 56. Proximate cause is any cause that “in natural or probable sequence, produced the injury complained of.” Osborn v. State of Illinois, 70 Ill. Ct. Cl 157, 160 (2017)(add’l cite omitted). Proximate cause has two separate and distinct elements: cause-in-fact and legal cause. Collins v. State of Illinois, 66 Ill. Ct. Cl. 145, 149 (2014)(add’l cites omitted). Cause-in-fact exists when the injury would not have occurred but for the defendant’s conduct. Id. Legal cause relates to foreseeability of the injury. Lopez v. State of Illinois, 65 Ill. Ct. Cl. 138, 144 (2013). 57. As to cause-in-fact, the Claimant must specifically prove “the nature and extent of his injury attributable to the claimed negligence” and must do so by a preponderance of the evidence. Enyart v. State of Illinois, 57 Ill. Ct. Cl. 202, 208 (2004). 58. Respondent does not dispute that Claimant slipped and fell on the streaks of water or that slipping on the streaks of water was the cause of Claimant’s injuries.

[*222] 59. Respondent argues that it was Claimant’s failure to take proper care to observe conditions in her walking path, including the water streaks, that resulted in her slipping and falling, sustaining injuries. 60. The Court finds the water streaks created by Respondent’s employee were the cause-in-fact of Claimant’s injuries. 61. As to the legal cause, it is foreseeable that a person - including the Claimant - walking through the main hospital hallway just after 5:00 p.m. would slip on any existing streaks of water and fall, resulting in injury. c. Comparative Fault 62. No evidence of carelessness by the Claimant was adducted at the hearing. 63. The Claimant was walking in the main hospital hallway, which was intended for pedestrians, at just after 5:00 p.m., a time when others would also be in the hallway. The Claimant would not have expected to encounter water on the hallway floor. 64. The Court finds Respondent has not met its burden of proving by a preponderance of the evidence that Claimant failed to keep a proper lookout to avoid water along her walking path, or was otherwise negligent in failing to keep a proper lookout for her own safety. d. Damages 65. Given the totality of the evidence presented, the Claimant has met the elements of proximate cause as to at least some of the damages she is claiming.

Analysis of what specific type of damages follows.

Medical Expenses

66. The Claimant claims $69,129.80 in medical expenses. 67. Claimant must establish both that the medical services provided were causally connected to the accident and that the medical services were reasonable and customary charges for the type of services provided. Bradley v. State of Illinois, 64 Ill. Ct. Cl. 207, 218 (2012). In addition to the Claimant’s testimony that the bills were paid, Dr. Goldberg testified as to both the casual connection and the reasonableness of the charges. The Court finds that Claimant should be awarded her medical costs of $69,129.80.

Pain, Suffering and Disability 68. Claimant claims $225,741.51 in damages for pain and suffering, and disability.

Respondent disputes these damages. 69. Dr. Goldberg testified as to the multiple breaks and multiple torn ligaments in Claimant’s elbow - among other injuries - and to the surgery her performed and follow-up care, as well as his referral to Dr. Mejia to treat Claimant’s wrist injury.

The Claimant testified that her pain after elbow surgery was initially an 8 out of [*223] 10. The Claimant also testified to the increased duration of her migraines for a couple years after her accident, although this has now been resolved. The Claimant testified that her neck pain comes and goes but is generally back to where it was pre-accident, noting her pre-existing neck injury. 70. As for disability, the Claimant testified her wrist is now pain-free but has some reduced strength. The Claimant compensates for this by using a backpack or shopping cart rather than carrying heavy bags. The reduced strength also affects the Claimant’s ability to lift her 83-year-old mother, for whom the Claimant is the primary caregiver. Dr. Goldberg testified that although the Claimant does not have full range of motion with her left arm, she is 95-98% recovered; the small difference is not clinically relevant. When she reaches the end of her range of motion, it may be uncomfortable for Claimant to engage in such activities as carrying heavy groceries or styling her own hair in a low ponytail. She likely will not improve and may get slightly worse over the next couple decades. She has an increased likelihood of developing arthritis but does not necessarily need treatment for it. 71. The court awards $75,000 for pain and suffering and disability.

Lost Wages

72. Claimant claims $5,128.69 in damages for lost wages. 73. At the time of the accident, Claimant was employed as a medical biller for the University of Illinois at Chicago Hospital. The claimant testified that se earned $20.51/hour plus time and a half for overtime. Due to her accident, the Claimant missed approximately four weeks of work, as well as an additional time for thirtynine physical therapy appointments, totaling $5,128.69. Respondent does not dispute this. This Court finds that Claimant should be awarded lost wages of $5, 128.69.

IT IS HEREBY ORDERED that Respondent compensate Claimant $149,258.49 for her medical costs, pain and suffering and disability, and lost wages.