Lillian Ross v. State of Illinois

Wherr c l a i in ; i n t \v:is ;I giivst for consit1rr;itiolr. and \vherc. stair\v;i!. iii;iiiit;iiii(yl 1)) statc had bccir i i i i I c \ d f o r s o i i i e pcriotl of tiiiic. l ’ h r stat<.\\xs I i i i b l r for it \ k i i l i i t n , to warn c1:iiin:int of tlic, h u : i r d o i i s c o n d i t i o l i .

HOLDERMAN,

J.

Claimant has brought action against the Stat(>of Illinois to recover from .damages allegedly suffered as a result of a personal injury sustained on June 17, 1966, in The Starved Rock State Park. The damages claimed are in the amount of $25,000.oo.

The complaint recites that on and prior to Jiinc> 17, 1966, the State of Illinois maintained a certain foot trail and stairway at l’he Starved Rock State Park leading from thc area behind the “Lodge” to a lower area.

It further recites that on said date claimant was visiting The Starved Rock State Park. She had been and was there at the invitation of the State of Illinois, and was a guest for consideration at l’he Starved Rock State Park Lodge.

Claimant further contends that the stairway on said premises, which was owned and maintained by the State of Illinois, had for some time prior to the accident been [*105]

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unlevel, so that it tilted forward creating a dangerous condition for persons using the said stairway.

Claimant also alleges that the State was negligent in failing to provide a proper hand rail, which could be held onto by a person using the stairway, and that the State had failed to inspect the stairway in time, prior to the occurrence claimed of herein, to learn of the unsafe condition of one of the steps of the said stairway. The State further failed to inform claimant and others of the unsafe condition of the said stairway, and repaired the said step as to leave it in an unsafe condition.

Claimant at the time of the accident was a retired woman, seventy years of age, who had been active in collecting spiders and insects. On the morning of the accident, she and her companions were starting on a hike from the Lodge at the Park. She was wearing shoes with heavy rubber corrugated soles and flat heels, and she started down the wooden steps leading from the upper part of the Park to the lower level. She is alleged to have stumbled on a broken step, and injured her left extremity as a result of the fall.

She was taken to St. Mary’s Hospital in LaSalle where x-rays revealed a complete oblique fracture of her left femur. She was operated on, and the fractured fragments of the bone were fixed into position with the insertion of rush rods. She was discharged after two months confinement in the hospital.

After returning to Chicago, she was treated by another doctor, who rendered follow-up care.

Claimant testified that, as she was going down the steps, she fell on the second wooden step. She further testified that she tried to grasp the side railing, but it was too big for her to grasp, so she fell after her right foot slid, and finally landed with the left leg doubled up under her.

[*106] Her companion, Miss Cotterill, testified that she was present when the accident happened, and that the second step slanted downward and to the right, and that there was some sand upon the step.

Miss Cotterill further testified that a man came along immediately after the accident, picked claimant up, and straightened her leg out. She was then removed in an ambulance to the hospital. Miss Cotterill further testified that she stayed in LaSalle all during the period of time that claimant was confined to the hospital, and helped take care of her by bathing her, feeding her, and performing similar services.

A Park employee, Mr. John Baima, testified that these steps would be swept approximately once a week, which was necessary because of the accumulation of very fine sand. Mr. Baima further testified that the second step in question was tilted forward, and that he repaired the same by putting in a temporary brace, and also informed the Superintendent of the Park that the brace underneath the stairway had rotted away, and would need replacement. He stated that he did not see any signs or warnings that the steps were slippery. He also testified that before he put the brace in the step was a little loose and in not too good a shape. Part of the step had rotted away, including a piece of the brace holding the step.

The evidence seems uncontradicted that there was sand upon the step in question, and that the stairway, and particularly the step on which claimant is alleged to have sustained her fall was defective due to the slant, the sand, and the rotting away of part of the brace. The pictures introduced by claimant indicate that new material had been placed under the step after the accident in question.

The expenses testified to as a result of the accident are as follows: [*107]

St. Mary’s Hospital $2,671.25;Dr. Ihyle’s bill $1,035.00;Dr. Sickley, one of the doctors in the hospital, who gave claimant care, $35.00;$12.00 for x-rays at The Michael Reese Hospital; $25.00 to Dr. Leonard Weinstein, for work and examination of claimant’s leg; $10.00 leg x-ray at The Michael Reese Hospital; $12.00 leg x-ray at The Michael Reese Hospital; and $20.00additional for Dr. Weinstein. These were claimant’s expenses in 1966. In 1967, claimant had an additional $12.50 for x-rays on her leg at The Michael Reese Hospital; $48.00 to Dr. Irving Mack; $10.00 additional to Dr. Weinstein; another $12.50 for x-rays at The Michael Reese Hospital; and another $29.00 to Dr. Mack.

Claimant also testified that she paid Miss Cotterill, her companion who lived with her, and was on vacation with her, the sum of $493.62, which was the amount of expenses incurred by Miss Cotterill while she stayed in LaSalle during the period of time claimant was confined to St. Mary’s Hospital.

It appears that claimant was exercising ordinary care for her own safety at the time of the accident. She had on corrugated rubber-soled walking shoes, and was attempting to use the rail on the stairway, but was unable to do so because of its size. Her fall was occasioned either by the sand on the step, the slant of the step, or a combination of the two circumstances.

We have carefully considered the record in this case, and the authorities cited by both parties. It is our opinion that this case, as far as the facts are concerned, corresponds greatly to two other cases, namely: Alhertu Hunsen, Adrnr., Etc. vs. State of Illinois, 24 C.C.R. 103, in which the rule was laid down that respondent has a duty to warn of a danger that exists along a trail; and Elizabeth Ann Murray, u Minor, Etc., vs. State of Illinois, 24 C.C.R. 399, in which the rule that the State owes a duty to the public to exercise reasonable care in establishing, maintaining and supervising its parks is set forth.

It is our opinion that the dangers in the case were the rotted support of the step, and the slanting of the step, which could not be discovered except by minute examina[*108]tion, and the failure to warn claimant of this hazardous condition caused the> result complained of.

In this case claimant was retired so there was not any loss of earnings, but we believe that she is entitled to recover for medical expenses and disability in pain and suffering, which occurred as a result of said accident. The Court, therefore, finds that claimant sustained damages in the amount of $12,000.00.

An award is, therefore, made herewith to clairnant, Lillian Ross, in the amount of $12,000.00.

(No. 54 I6-Clnint;int ;i\v;irckd $1 .~500.00) CHARLOTTE P ALECKI, Claimant, vs. STATE OF ILLINOIS, Respondent.

0 p i i 1 i 0 1 1filed Fehrririrc/ 18. 1971.

AND K ROLL , Attorneys for Claimant.

WOLFBERG

W ILLIAM J. SCOTT, Attorney General, MORTON ZASLAVSKYand SAUL, J. W EXLER, Assistant Attorneys General, for Respondent.

HIcHwAYs-cotl.strrrcfioc. ttoficc’ of dcfecfs. \ V h c w holr in strcct c,xistcd for at least six nionths :ind state (lid not post any \varning signs, nor in ; i l i c ~:in!. r c p i r s . The State did not nsc rcwonable ciiw in tnainkiining its higlways, and \\‘:IS negligent. This negligcwrc \viis the proritn;itc~c~nsc’of thr claitn;int’s injnric~.

DOVE,

J.

Claimant, Charlotte Palecki, brings this action to recover for injury to her person, which she sustained on October 13, 1966, in a fall on a public highway known as 87th Street near the corner of South Francisco Aveniie in Evergreen Park, Illinois.

The facts are relatively undisputed, and are as follows:

On October 13, 1966, at about 5:lS p.m. clainiant was walking south on Francisco Avenue on the east side thercof. At the point ~ 7 her eFrancisco Avenue intersects with 87th Street claimant crossed to the southwest corner of [*109] Francisco Avenue and 87th Street for the purpose of board- I ing an eastbound 87th Street CTA bus to go to work at the

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Evergreen Plaza. While crossing 87th Street at its intersection with Francisco Avenue on her way to the bus stop on the southwest comer of said intersection, claimant stepped into a deep hole adjacent to a sewer cover on 87th Street. The hole was near the south crosswalk of 87th Street and to the west crosswalk of Francisco Avenue. Claimant testified that she did not see the hole before she stepped into it, as she had been watching the oncoming traffic and looking for the bus; that the hole in question was approximately four or five inches deep and about a foot and a half in diameter; and, that upon stepping into the hole she fell to the pavement injuring her left foot. Claimant further testified that she was able to go to the bus stop, approximately eight or ten feet away, where she boarded her bus, and went to work. While at work that night, she experienced great pain especially when she had to stand on her feet.

The next day claimant called Dr. Gregory N. Hernandez, and was told to meet him at The Little Company of Mary Hospital in Evergreen Park, Illinois, where x-rays were taken, and a boot-size cast was put on her left foot. She wore the cast for approximately six weeks, and used crutches and a walking chair to get about her home. Her injury was a complete fracture of the fifth metatarsal bone. The evidence indicates that the time claimant lost from work because of her injury amounted to approximately six weeks, totaling $195.00 in lost wages. Hospital bills amounted to $57.00, and doctor bills, including bills for physical therapy at the South Side Physical Medical Center, amounted to the sum of $167.00, for a total out-of-pocket expense of $399.00.

The testimony of Lillian Wise, called as a witness for claimant, was introduced into evidence by stipulation. Her [*110] testimony was that the hole in the street in question existed to her knowledge for approximately six months before the accident.

This Court has held on numeroils occasions that the State of Illinois is not an insurer of every accident that occurs upon its public highways. Link vs. State of Illinois, 2.A C.C.H. 69; Bloom vs. State of Illinois, 22 C.C.H. 582. ‘I’he law in the State of Illinois is clear that, in order for a claiiuant in a tort action to recover, she must prove that the State was negligent; that such negligence was the proxiniatt cause of the injury; and, that claimant was in the exercise of due care and caution for her own safety. Link vs. State of Illinois, 24 C.C.R. 69; McNary vs. State of Illinois, 22 C.C.R. 328; Bloom Vs. State of Illinois, 22 C.C.H. 582. l’hc State has a duty to exercise ordinary care to maintain its highways in a reasonably safe condition for public travel. Garrett, Et Al., vs. State of Illinois, 22 C.C.H. 343.

In Di Orio, Et Al., vs. State of Illinois, 20 C.C.R. 53, this Coiirt applied the same rules of law pertaining to notice in suits against the State involving defects in highways, as pertained to suits against municipalities involving injuries caused by defective sidewalks. In this respect the law in Illinois is clear. Before a municipality can be held liable for injuries, it is necessary that there be evidence showing that the city had actual or constructive notice of the alleged iinsafe condition. The nnrebutted testimony of Lillian Wise, a witness for claimant, was that the hole in qiiestion existed to her knowledge for approximately six months before the accident.

This Court has held that there cannot be any hard or fast rule in determining when it can be said that the State had “constructive notice” of a dangerous condition, and each case must be decided on its own prticnlar facts. Visco vs. State of lllinois, 21 C.C.H. 480.

[*111] It is the opinion of this Court that the hole in question existed for a sufficient length of time so that the State of Illinois can be held to have had constructive, if not actual, notice of the defect.

From the evidence, it is apparent that the State did not post any warning signs nor make repairs for a period of at least six months. This leads the Court to the conclusion that the State did not use reasonable care to maintain its highways, and that it was negligent in allowing said hole to remain for so long a period of time. It is the further opinion of this Court that such negligence was the proximate cause of the injuries suffered by claimant. Contrary to the contention of respondent, this Court finds no evidence in the record that claimant was guilty of contributory negligence. An award is, therefore, made to the claimant, Charlotte Palecki, in the amount of $1,500.00.