Eva Karpowicz v. Board of Trustee of the University of Illinois

OPINION

STORINO, J.

Claimants filed a Complaint for monetary damages. The Complaint alleges that the University of Illinois, (hereinafter “University”), negligently failed to provide a reasonable and safe crossing from a University Parking Lot to the Assembly Hall causing her severe personal injuries. A hearing was held before Commissioner Ysursa on December 5, 2005. Robert L. King represented Claimants, and Gary Lietz represented Respondent.

[*202] I. Preliminary Issues

This matter involves a minor child, Eva Karpowicz, being struck by a motor vehicle while crossing First Street in Champaign, Illinois. Eva was exiting parking lot E-14 crossing First Street in order to enter the University’s Assembly Hall to attend a state wrestling event. Claimants filed a two count complaint. Count I was brought by Karen Karpowicz, as Mother and Next Friend of Eva Karpowicz, seeking damages for her personal injuries. Count II was brought by Karen Karpowicz, individually, for her out of pocket medical expenses she paid for the injuries suffered by her daughter Eva Karpowicz.

Prior to the start of the hearing a number of preliminary issues were raised. First, Claimants stated that Eva Karpowicz was a minor when the original complaint was filed and now has reached majority. Claimants moved to substitute her for Karen Karpowicz, as her Mother and Next Friend, in Count I. Respondent did not object and Eva Karpowicz was substituted for her mother in Count I.

Second, the parties entered into a written stipulation. The parties stipulated to the following: (1) the medical services submitted into evidence were fair and reasonable for like services in the locality where the services were provided; (2) the admission of the police report as Group Exhibit 2; (3) to keep the record open for the limited purpose of introducing either a statement or evidence deposition of George DePeder; (4) the University owns First Street, and (5) any award is to be reduced by $20,000.00 representing funds that Claimant has received from an alternate source.

Third, the parties orally stipulated to: (1) the fact that the sunset on February 19, 1993 in Champaign, Illinois was at 5:34 p.m.; (2) the fact that there were no diamond signs in the parking lot E-14; and (3) the evidence depositions of John Whittington and Jeff Christensen.

Fourth, Claimants objected at the hearing to Respondent intention to call Edward Karpowicz, the brother of Eva, as a witness. Claimants withdrew their objection in a subsequent pleading. The testimony of Edward Karpowicz is allowed.

Fifth, the parties stipulated that the affirmative defenses asserted by Respondent are denied by Claimants.

II. Background

Claimants called Karen Karpowicz as their first witness. She stated that on February 19, 2003, she, her daughter, Eva, her son, Edward, and two of [*203] Edward’s friends went to the University to attend a state wrestling event taking place at the University owned Assembly Hall. When they arrived at Assembly Hall they parked their vehicles in parking lot E-14 across First Street from the Assembly Hall. As they crossed First Street Eva, who was nine years old at the time, was struck by a car.

Karen Karpowicz testified that the group crossed First Street in between Kirby Avenue to the north and St. Mary’s Road to the south along with approximately 15 to 20 other pedestrians. When they crossed First Street it was almost dark out. She testified that she was the furthest south of the group and Eva was directly to her north with the remaining members of her group to the north of Eva. She testified that First Street was two lanes of traffic in both directions with a double yellow line separating the northbound and southbound lanes. Her group successfully traversed the southbound lane and stopped at the double yellow line. At that point she stated a car came out of nowhere and struck her daughter. She did not see the actual impact but turned immediately following the impact and saw Eva on the hood of the vehicle being thrown north and into the southbound lane. She testified that she did not notice how far they crossed from the intersection of First Street and Kirby Avenue or the intersection of First Street and St. Mary’s Road. She did not see any crosswalks, no signs directing pedestrians, no traffic control devices, no cones directing pedestrians and no police officers. She testified that her group did not cross at the designated pedestrian crossing.

After the impact she ran to her daughter who was unresponsive. The police arrived and Eva was placed in an ambulance. Karen rode with Eva in the ambulance to Carle Medical Center. Karen testified that Eva had to have brain surgery and was unconscious for three days. She stated that Eva was in Carle Medical Center for about a week. Upon release she was referred to Dr. Gregory Baily, a neurologist.

Karen testified that post accident Eva’s normal activities were limited. Eva could not play soccer for about a year after the accident. She testified that Eva has never fully recovered from the injuries. She still suffers headaches frequently and has seen multiple physicians to address the headaches to no avail. Karen testified that they recently realized that Eva suffered some memory loss from the accident. She testified that Eva has a scar on her head under her hair.

On cross-examination, Karen stated that this was her first trip to the University. She was unaware that there was a pedestrian crossing at the intersection of First Street and Kirby Avenue. She stated that she did not take the photographs labeled Plaintiff’s Exhibit 2 through 5 and had no knowledge of who took them or when they were taken. Karen testified that she did not have a specific recollection of placing her call to their family physician, Dr. Weber, as [*204] Eva got out of intensive care but conceded that she most probably called him. Karen stated that Eva eventually played soccer again and graduated from high school. Eva attended college at Southwestern Illinois College. Karen testified that Eva previously injured her neck when she fell down some stairs. Karen stated that Eva had suffered some previous injuries while playing soccer.

Next to testify was Eva Karpowicz. Eva stated that she has no recollection of the accident or of even going to Champaign, Illinois. She testified that she suffered a subdural injury and a broken arm. She identified Plaintiff’s Exhibit 6, 7 and 8 as photographs of her after the accident. She testified that her hair grew back approximately one year after the accident. She did not remember being at Carle Medical Center and was told that she was there for about seven (7) days. After she was released from Carle Medical Center she treated with Dr. Weber, received an MRI from a Dr. Baily, and consulted with Dr. Chin for her arm.

Eva testified that she suffers from chronic headaches. The headaches did not begin until after the accident. She stated that she gets headaches everyday in some form. The severity of her headaches varies from mild to migraines. The headaches can be short or can linger all day. When she has severe headaches nothing helps to relieve the pain. When she suffers migraines she has to go to a dark room and lay down. Migraines cause her to get dizzy, have blurred vision, feel nauseous and lose her balance. She testified that the migraines usually occur once every two months. She has tried over the counter pain relievers but they have not helped her headaches. In 2001 and 2002 she saw Dr. Riaz Naseer for her headaches. She saw him about five or six times. Dr. Naseer prescribed maxalt, which did help the pain, but Eva did not like the side effects. The maxalt would “knock her out” and she could not perform her daily activities when she was taking it. She testified that she stopped seeing Dr. Naseer because she lost her insurance. She stated that her headaches inhibit her daily activities. She is sensitive to lights and sounds.

Eva testified that she suffers from memory loss. She discovered the memory loss within the last two years. She stated that when discussing family events with her family she realized that she had no recollection of the events. She testified that her pre-accident memory is limited to videotapes and pictures. She stated that she remembered her pre-accident family and friends, but not events.

At the time of the accident Eva was in the third grade. She testified that she played year round select soccer. Her soccer play was interrupted for approximately one year due to the accident, but after that she continued to play soccer through high school. Eva received her associate degree in administration of justice from Southwestern Illinois College in 2004.

[*205] On cross-examination, Eva testified that the accident did not effect her education. She stated that she does not have trouble sleeping. She conceded that she has not seen any physicians for her headaches since 2002. She never inquired to Dr. Naseer for alternative medications other than maxalt, and never inquired about less expensive remedies. She testified that she has no recollection of falling down stairs in 1992 or straining her neck playing soccer.

Claimants submitted the evidence deposition of Officer Jeffrey Christensen of the University Police Department. Officer Christiansen testified that he attended the University’s Police Training Institute in 1985 and started with the University Police Department in 1985. Officer Christensen testified that in 1995 the University Police Department issued a basketball and large events traffic plan for Assembly Hall. He testified that during these large events the University barricaded First Street between Kirby Avenue and St. Mary’s Road to normal traffic. Limited traffic, such as buses, limousines, etc., was permitted through the barricades. In order to trigger this policy the event had to be expected to draw around 10,000 patrons. The policy went into effect in 1995 and is attached to his Evidence Deposition as Exhibit 1. Christensen testified that he estimated that the state wrestling tournament drew about 7,000 to 10,000 in 1993. The 7,000 to 10,000 spectators encompassed all four sessions that were spread out over two days.

Claimants submitted the evidence deposition of Officer Jon Whittington. Officer Whittington testified that he has worked for the University Police Department for twenty-two (22) years and he attended the University’s Police Training Institute. Officer Whittington testified that he had no independent recollection of the events on February 19, 1993, so he referred to his supplemental report he prepared in the regular and ordinary course of business to refresh his recollection. Officer Whittington stated that his supplemental report was part of the actual police report prepared on the date of the accident by Officer Rolando.

Claimants presented the evidence deposition of Dr. Naseer, a neurologist in Madison County, Illinois. Dr. Naseer stated that he came to see Eva on March 5, 2001, when Eva was seventeen (17) years old on a referral from Dr. Weber. Eva was complaining of bad headaches. Dr. Naseer diagnosed Eva with post-traumatic migraine headaches. He prescribed a pain reliever, maxalt, for Eva. The side effects can vary but include drowsiness. Dr. Naseer continued to treat Eva until her release from him on June 10, 2002. He opined within a reasonable degree of medical certainty that the migraine headaches were caused by the surgery on her head following the accident. His prognosis was for Eva to improve over time but she would still suffer from migraine headaches from time to time. Dr. Naseer stated that it is possible for the traumatic event to cause memory loss. On cross-examination, Dr. Naseer stated [*206] that he based his opinion on causation on the history provided to him by Eva, and if she could remember that history he could not comment on the effect that would have on his opinion. He testified that fatigue is a natural part of the progression of a migraine headache and cannot be directly linked to the maxalt alone. On redirect, Dr. Naseer stated that the history regarding someone such as Eva can be received from her parents. He also stated that maxalt can cause drowsiness.

Claimants moved to admit Exhibits 2 through 8 into evidence.1 Respondent objected to Claimants’ Exhibits 2 through 5 for lack of foundation. Over Respondent’s objection, Claimants’ Exhibits 2 through 5 were admitted into evidence. Claimants’ Exhibits 6 through 8 were admitted into evidence without objection. Claimants rested their case.

At the close of the Claimants’ case, Respondent moved for a directed verdict. The Motion for directed verdict was denied at trial by the presiding commissioner.

Respondent then presented its first witness, Officer Bruce Rolando of the University Police Department. Officer Rolando testified that he has been with the University Police Department for sixteen (16) years after attending the Illinois State Police Academy in 1990. Prior to enrollment at the police academy, Officer Rolando worked as a security Policeman in the military. Officer Rolando identified Respondent’s Exhibit 2, the police report.2 He testified that he was notified of the accident at 6:18 p.m. and arrived at the scene at 6:19 p.m.. He stated that he was assisted at the scene by Officer Jon Whittington. Officer Rolando stated that Respondent’s Exhibit 3 was a blown up version of the second page of Respondent’s Exhibit 2. He stated that Respondent’s Exhibit 4 is a blown up version of page five of Respondent’s Exhibit 2, and Respondent’s Exhibit 5 is a blown up version of the last page of Respondent’s Exhibit 2. He testified that he drew all three sketches contained in Respondent’s Exhibit 3, 4 and 5. He stated that he is not an accident reconstructionist.

Officer Rolando testified that the measurements contained in Respondent’s Exhibit 5 were gathered by himself and another officer. He stated that the intersection of First Street and Kirby Avenue contains traffic control lights. The intersection of First Street and St. Mary’s Road is a four way stop. Officer Rolando identified Claimants’ Exhibits 2 through 5 as appearing to be

Claimants’ Exhibits 1A and 1B were previously admitted into evidence via the written stipulation of the parties.

Respondent’s Exhibit 2 was previously admitted into evidence via the written stipulation of the parties.

[*207] lot E-14 to the east of Assembly Hall. On cross-examination Officer Rolando stated that he did not witness the accident. Officer Rolando stated that there was no crosswalk where the accident occurred.

The statement of witness George DePeder was stipulated into evidence and provided to the Court via cover letter on April 8, 2006. DePeder testified that at the time of the incident he was in his vehicle traveling southbound on First Street. He stated that he witnessed a group of people stopped at the double yellow line in between the southbound and northbound lanes of First Street. DePeder testified that at this point he saw someone, later he discovered to be Eva, move out from the middle of the group and be struck by a northbound vehicle. He estimated that he was about a car length from the group of people when he saw the impact. DePeder stated that Eva’s body went flying after the impact and went into the southbound lane behind his vehicle.

Respondent called Eva’s brother, Edward Karpowicz, Jr., as a witness.3 Edward testified that he crossed First Street with his sister and the others on the night in question. He described First Street as a four-lane road with two lanes in each direction of traffic and double yellow line dividing the direction of traffic. He testified that the group did not cross First Street at an intersection or a designated crosswalk. He stated that Eva was immediately to his left. Edward testified that he witnessed Eva run out in the path of the car and be struck. On cross-examination, Edward stated that Eva was struck just one step over the double yellow line.

Respondent’s Exhibits 3 through 5 were admitted into evidence without objection. The portion of Respondent’s Exhibit 1 noting the February 23, 1993 phone call from Karen Karpowicz to Dr. Weber was admitted into evidence without objection. A certain portion of Respondent’s Exhibit 1, a September 1, 1992, note regarding Eva Karpowicz falling down stairs and incurring a neck strain during soccer was barred from evidence for lack of foundation.

III. Analysis

Claimants have made a tort claim sounding in negligence. In order to prevail, a 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, 798 N.E.2d 724, 729 (2003); Hickman v. State of Illinois, 55 Ill. Ct. Cl. 388 (2002); Kipping v. Illinois Dep’t of Employment Security, 52 Ill. Ct. Cl. 211 (1999); Steger v. State of Illinois, 46 Ill. Ct. Cl. 262 (1993). In Claimant’s complaint they allege that Respondent has

Claimant initially objected to the testimony of Edward Karpowicz, Jr., but withdrew the objection in a pleading filed on or around March 27, 2006.

[*208] a duty to provide a safe means of ingress and egress from its parking lot to its facility. Claimants allege that Respondent breached this duty by: (1) failing to provide a safe means of ingress and egress; (2) failing to provide crowd control; and (3) failing to provide traffic control.

In this case, it is undisputed that Eva and her group parked in a University designated parking lot for events at Assembly Hall. Although a pedestrian crosswalk was available, the group decided to cross First Street in a non-pedestrian crosswalk. Eva, a minor accompanied by her mother, was struck by a vehicle on First Street. It is undisputed that at either end of the parking lot there were intersections with crosswalks. The University placed no signs in the parking lot directing pedestrians to the intersections at either end of the parking lot. The University employed no measures, including barricades or security workers, to control the crowd or vehicles in and around First Street. The first question this Court must address is what duty the University owes to its patrons under the circumstances of this case.

It is undisputed that the University owes a duty to its patrons to provide a reasonably safe means of ingress and egress to its facilities. Hickman, 55 Ill. Ct. Cl. 388; Kipping, 52 Ill. Ct. Cl. 211; Steger, 46 Ill. Ct. Cl. 262. The question this Court must address is whether this duty extends to patrons jaywalking to get to Assembly Hall. The Court of Claims stated the standard for judging the extent of a legal duty in Steger v. State of Illinois:

“A legal duty requires more than the possibility of occurrence and the

State, like another person, is charged with a duty only when harm is

legally foreseeable. The issues of foreseeability and duty involve many

factors, including the magnitude of the risk, the burden of requiring the

State to guard against the risk, and the consequences of placing this

burden on the State.” Steger v. State of Illinois, 46 Ill. Ct. Cl. 262.

Furthermore, by definition a pedestrian crossing a State owned street at a location other than at a designated walkway is not a permitted user of the roadway and the State owes no duty for injuries to such pedestrians. Wheel v. State of Illinois, 42 Ill. Ct. Cl. 231 (1990). In this case, the University provided designated crosswalks for pedestrians at either end of the parking lot. Claimants did not utilize those designated areas. The University does not owe any further duty.

Since the State does not owe a duty to Eva under the facts of this case, Claimants’ cause of action fails.

IT IS HEREBY ORDERED that Claimants’ claim is denied with prejudice.