Shawn P. Depke v. State of Illinois

OPINION

BIRNBAUM, J.

Claimant, Shawn P. Depke, seeks judgment against Respondent, the State of Illinois, in the sum of $7,510.00 for property damage sustained to Claimant’s fence, roof shed, residence rain gutters, and residence rear porch as a result of two large mature trees that fell from the adjacent property owned by the State. Claimant alleges that the trees fell as a result of negligence on the part of the Respondent. The Respondent does not contest that the trees fell from property owned and controlled by the State and further concedes that the fallen trees damaged Claimant’s property. The Respondent, however, urges that the claim should be denied because the Claimant failed to prove the State had actual or constructive notice of a dangerous condition.

At hearing Claimant testified that on June 8, 2004, two large mature trees fell onto Claimant’s property located at 618 O’Plaine Road in Gurnee, Illinois. The trees fell from the adjacent property that is owned by the State of Illinois. One of the trees landed on top of a steel chain link fence, bending and distorting the top steel rail, snapping the support rails and crushing the webbing. It also scraped a storage shed located near the fence, damaging the roof of the shed. The other tree landed on the residence rain gutters and rear porch entrance shed, causing significant structural damage. Claimant testified that there were no storms on the day the trees fell. Claimant’s group exhibit 3A-L contains photographs of the trees and damaged areas. Claimant alleges $7,510.00 in damage to his property.

At hearing, Respondent did not contest that the trees that fell onto Mr. Depke’s property are located on land owned and operated by the State. The State produced three witnesses employed by IDOT who testified that they had never received any complaints regarding the trees in question until Mr. Depke called to report the fallen trees on the day of the accident. Mr. Torrez, employed by IDOT, acknowledged that when Mr. Depke first reported the accident, IDOT was not certain that the State even owned the adjoining property from where the trees fell. The State witnesses further testified that, to their knowledge, no inspections were ever performed in the area where the trees were located. This [*339] testimony contradicted statements contained in Claimant’s Exhibit 2, a letter Claimant received from IDOT, which stated that IDOT inspects the area in question twice a year, and that the trees were not considered to be a hazard at the time of the last inspection.

Analysis

Respondent urges this Court to find that there is no liability on the part of the State because the Claimant has failed to prove that Respondent had either actual or constructive of a dangerous condition. In support of its position, Respondent cites this Court’s decisions in Talbott v. State (1983), 35 Ill.Ct.Cl. 885 and Gower v. State (1994), 46 Ill.Ct.Cl. 434.

In Talbott, Claimant was denied recovery when a tree limb fell on his car while it was parked in the parking area of a state park. In Talbott, the State presented credible evidence to show that severe thunderstorms had occurred the day prior to the accident and that there were wind gusts of up to 48 miles per hour on the day the tree limb fell on Claimant’s car. This is distinguishable from the case at hand. Here, Mr. Depke provided uncontested testimony that there were no storms on the day of the accident.

In Gower, this Court also denied recovery to a claimant whose car was damaged when a tree limb fell on it while it was parked at a state park. The Court denied recovery under the theory that a patron visiting a state park assumes a risk when he chooses to place his property beneath a tree. Gower, 46 Ill.Ct.Cl. at 443. The evidence in Gower established that Claimant knew that there was a problem with falling tree limbs in other parts of the state park. We do not believe that this rationale can be applied to the case at bar. Mr. Depke suffered damage to his home and the fence around his home, not to his property while patronizing a State or other facility where he clearly assumed the risk.

Which leads to another critical difference between Gower and the case sub judice is the property in question: Gower involved a state park, accessible by the public. The property damaged in this case was the Claimant’s private property caused by trees which fell from the State’s property. The claimant in Gower was denied recovery because the State did not have notice, actual or constructive, of the hazard that caused the damage. However, the Claimant in this case was prohibited from entering the State property adjacent to his land and therefore, was in no position to inspect any trees for hazards. The State had exclusive access to inspect for such hazards and failed to do so.

With regard to such inspections, the State has provided contradictory evidence. At trial, the State’s evidence was that it had no knowledge of any inspections being conducted on this property. However, in a letter dated September 23, 2004, sent to the Claimant, Sharon Watson, the litigation supervisor of IDOT, stated:

Please be advised as we stated in our September 1, 2004 letter that our

Maintenance and Communication facilities were not aware of any [*340]

hazard at 618 O’Plaine Road in Gurnee, Illinois on 06/08/04. I have

rechecked the records and still found nothing reported to either our

Maintenance Department or to our Communication Center indicating

that this specific location was a hazardous area. The Department does

check this area twice a year and at the time this area was inspected this

area was not considered to be a hazard. We do rely on the public to

notify the Department or their village if they notice a tree is starting to

look bad. (Emphasis added).

For the Claimant to recover, he must show, by a preponderance of the evidence, that the State owed the Claimant a duty, that the duty was breached by a negligent act or omission to act and that the act or omission proximately caused a compensable injury. Stimage v. State, 52 Ill.Ct.Cl. 173, 175 (1999). In this case, the State assumed the duty to inspect the property properly, and because it was public property, not accessible by the public, it had that duty exclusively. Feigning ignorance while admitting that the State conducts inspections twice a year only indicates to this Court that the State needs to improve their system of inspection. The argument that inspecting all trees would be an undue burden on the State is compelling, if the State did not have exclusive control over the property. Hence, “reasonable care” in this case would require the State to take certain safeguards in the area to prevent hazards to adjacent private property where the Claimant could not have discovered said hazards and notified the State. The State failed to take those safeguards.

The claim is also supported by the doctrine of res ipsa loquiter. The Court has previously applied the doctrine of res ipsa loquiter to cases where a tree or tree limb located on land owned or operated by the State fell and cased injury. See Kenney v. State (1956), 22 Ill.Ct.Cl. 247. The purpose of the doctrine of res ipsa loquiter is to allow proof of negligence by circumstantial evidence when the direct evidence concerning the cause of the injury is primarily within the knowledge and control of the defendant. Durbin v. State (1999), 52 Ill.Ct.Cl. 236. The accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care. Kenney, 22 Ill.Ct.Cl. at 258. The doctrine recognizes that in some situations an occurrence is so unusual, that absent a reasonable justification, the person in control of the situation should be held responsible. Maroules v. Jumbo, Inc., 452 F.3d 639, 642 (7th Cir. 2006).

Res ipsa loquiter applies when the thing that caused the injury is shown to be under the control or management of the party charged with negligence, and the occurrence is one that, in the ordinary course of things, would not have happened if the person so charged had used proper care. Kenney, 22 Ill.Ct.Cl. at 257. To establish this inference of negligence, the plaintiff must demonstate: (1) that the injuring instrumentality was within the exclusive care and control of the defendant, and (2) that the accident is of the type that does not ordinarily happen if those who have the management and control exercise proper care. Maroules, 452 F.3d at 642.

[*341] Like any other evidence, the presumption of negligence may be explained or rebutted by the opposing party. Durbin, 52 Ill.Ct.Cl. at 238. However, where the State has offered no evidence or explanation to rebut the presumption of negligence, this Court has found for the claimant. In Kenney v. State, for example, a tree limb fell on a patron while he was at a state park and killed him. The State did not offer any explanation or evidence as to what caused the tree limb to fall. Rather, the State contended that it was not liable because it did not have actual or constructive notice that the tree limb was a dangerous condition. This Court applied the doctrine of res ipsa loquiter and found for the claimant because the State “did not offer any evidence or explain why the tree fell.” The Court stated that a tree limb, particularly a limb of that size, should not have fallen for no reason, and concluded that the problem could have been determined had a proper inspection taken place. Moreover, the Kenney court held that “it was respondent’s duty to make such an inspection in order to safeguard [the public].” Kenney 20 Ill.Ct.Cl. at 256.

The instant case is factually similar to Kenney and we find that the doctrine of res ipsa loquiter is appropriate here. The claimant has established both elements to support the application of res ipsa loquiter. First, the State does not contest that the trees are on land under its exclusive control. Next, claimant’s testimony that the weather was not stormy on the day of the accident and the photographs depicting the large size and maturity of the fallen trees establish that this is the type of accident that does not ordinarily happen but for a want of due care.

Finally, the State has failed to rebut this presumption. The State presented no evidence to show that it exercised due care. Rather, the evidence adduced at trial established that the State did not even initially know they owned the property. The State sent Mr. Depke a letter in which it claimed that the subject property and trees were inspected twice a year, but three State witnesses testified they were unaware of any inspections of the property. Therefore, the State failed to offer any explanation as to what might have caused the trees to fall onto Mr. Depke’s property to rebut the presumption of negligence.

Accordingly, this Court hereby awards the Claimant the amount of damages sought, $7,510.00.

IT IS SO ORDERED.