Rotonda Cole v. State of Illinois

ORDER

SPRAGUE, C.J. [*228] The present case involves a claim for personal injury sustained by Claimant when she stepped out of her car onto a sewer cover and fell into the sewer. On August 13, 2000, at approximately midnight, claimant determined that she needed stockings for church the following day. Her husband drove her to Walgreens and they decided to stop at a nearby restaurant. Claimant’s husband parked the car on the street at approximately 2316 West Lake Street, in Melrose Park. As Claimant was getting out of the car she stepped on a sewer grate. Her right leg fell in, her left leg straddled the pavement, and she attempted to hold herself up. Claimant was too frightened to call for help. Claimant’s right leg was in the sewer for approximately one minute when her husband and another gentleman helped her out.

Claimant was taken to Westlake Hospital by ambulance where she was treated for injuries to her knee. X-rays were taken and Claimant was sent home on crutches which she used for approximately one month. One month later she went to see Dr.

Brash who prescribed an MRI and Tylenol for the pain. In December, 2002, Claimant began to work in an orthopaedic office where she was again treated for her knee. She had a second MRI, approximately six weeks of physical therapy and began taking Vioxx. Claimant testified that, at the time of the hearing, her knee buckled often and that she still had sharp pains in her knee for which she took Tylenol. She could not jog, could no longer lift leg weights, and was not confident standing on stage when she sang for weddings. Claimant had no knowledge as to whether there was a problem with the sewer grate prior to the accident.

Frank Klupshas was employed by the Illinois Department of Transportation (“IDOT”) as team section engineer and was responsible for the maintenance program in the geographical area which encompassed the accident site. Once a year he conducted an inspection of approximately 600 lane miles looking for anything that may be in need of repair. On April 14, 2002, he drove past the area of 2315 West Lake Street, however, if a car had been parked in the area, he would not have seen the sewer grate. There was no notation on the inspection report with respect to the sewer grate in question. IDOT records indicated that there were no prior complaints about the sewer grate and that it had no notice of any prior accidents. IDOT first learned of the cracked sewer grate on August 17, 2000, and it was subsequently replaced on or about August 21, 2000. Photographs of the grate revealed that the concrete around the grate was cracked.

Christine Ridge was employed as a Litigation Representative by IDOT. Ms.

Ridge testified that she did a search back to January 1, 1998 for any complaints made with respect to that particular sewer grate and that no complaints had been made with respect to that grate. Prior to Claimant’s accident, IDOT had no knowledge of the defect or of any accidents involving that particular sewer grate. She was not aware if any repairs were made to the grate or in the area of the grate prior to Claimant’s accident.

Henry Blevins had been employed as a lead worker with IDOT and performed the maintenance and repair work on the roads. He received a service order with respect to a complaint about the sewer grate located at 2318 West Lake Street that had a cracked frame. His crew replaced the sewer grate on August 20, 2000.

The State contends that it is not liable for Claimant’s injury because it did not have notice of the defective condition; IDOT had not received any complaints about [*229] the sewer grate and it had no prior notice of any accidents. Claimant argues that the State should be charged with constructive notice of the defect because the area around the sewer was not well maintained.

The State of Illinois has a duty to maintain manhole and sewer covers in a state of proper repair for the safety of persons and vehicles using the street. Lichter v. State (1987, 39 Ill. Ct. Cl. 97, 98. In order to recover for negligent maintenance, the claimant must prove by a preponderance of the evidence that a dangerous condition existed, that the State knew of the condition and that the condition proximately caused the incident. The State must have either actual or constructive notice of the defect. To establish constructive notice, it must be shown that the defect was substantial enough and that it existed for a sufficient length of time that reasonable person would conclude that immediate repairs or warning signs were necessary. Kelly v. State (1998), 50 Ill. Ct. Cl. 146, 150-51.

In Lichter, the claimant was injured when, while stepping from the curb, he stepped on top of the storm sewer and his foot went through the top of the sewer because one of the grates had been removed. This Court held that such a defect, which is known or could have been ascertained by reasonable inspection, amounts to constructive notice and that the failure to replace or repair such defect amounts to negligence on the part of the State.

In contrast, in the present case, Claimant testified that there was a sewer grate protecting the hole and that it fell in when she stepped on it. There is no evidence that the grate was cracked or missing one of the grates at the time. After the accident, IDOT received a complaint about a cracked grate at the location in question. Again, there is no evidence whether the crack occurred before the accident, at the time of the accident or after the accident. The fact that the concrete around the grate may have been cracked is not evidence of a defect in the grate itself which is cast iron, not concrete.

The Claimant’s failure to establish either actual or constructive notice of the dangerous condition precludes recovery in this matter. The claim is hereby denied.