Marion and Allan Mapel v. Illinois State University

OPINION

Reid, J.

Claimants, Marion Mapel and Allan Maple, bring this action for injuries sustained by Marion Mapel at Illinois State University’s Bone Student Center stage area while she was working a fund-raising event for [*218] Claimant’s employer on September 7, 1997. This fund-raising event was sponsored by the United Way organization wherein several local businesses, including Claimant’s employer, were performing acts or skits for the charity. Claimant was positioned behind the stage area to assist her employer with certain props that were being used for their skit. As the skit concluded, Claimant was one of several individuals responsible for quickly removing a large number of boxes from the stage in order to make room for the next skit. Claimant was the final member of a “bucket brigade,” formed to remove these boxes. As the Claimant hurriedly stacked boxes that she received from her team members, she continued moving deeper into the unlit rear corner of the stage. Ultimately, Claimant, being unfamiliar with this stage, stepped backwards onto an elevator life that was raised flush with the stage floor. As she continued stacking boxes on this lift, Claimant stepped further backwards off of the lift. As a result, the Claimant fell and wedged herself in a 6 to 10 inch gap that existed between the lift and a doorway. As a result of this fall, Claimant suffered bruises and abrasions to her body, but no broken bones.

Respondent, Illinois State University, was not informed of this incident until several days later when Claimant called Illinois State University’s office of Environmental Health and Safety to notify them of her alleged injuries. Claimant presented no evidence that Respondent had any involvement with the United Way production, or any of the skits, or the conditions that existed at the rear of the stage. Claimant merely pointed to the 6 to 10 inch gap at the end of the lift and claimed this to be a dangerous condition. Respondent has received no other complaints regarding the lift in question, nor were any other prior incidents reported to Respondent involving the lift since its installation.

Claimant, Marion maple seeks $75,000.00 in compensation for her pain and suffering and medical bills not otherwise covered by her worker’s compensation claim. The Claimant, Marion Mapel , received $13,194.00 for loss of income and for the permanent damage to her body in a case filed against her employer, Bromenn Healthcare, in the State of Illinois Industrial Commission, Case No. 97-WC-62881. Also, Claimant, Allan Maple, seeks $15,000.00 for his loss of consortium because of his spouse’s inability to perform some activities post accident that she was previously able to perform. In addition, Allan Maple claims to have lost the benefit and frequency of sexual activity with his spouse due to the accident.

The court must also address issues of setoff and contributory negligence in rendering a decision in this matter.

[*219] THE FACTS AT TRIAL

In the early morning of September 17, 1997, Claimant was at the Illinois State University Bone Student Center on behalf of her employer, Bromenn Hospital. Bromenn was one of several organizations putting on skits for the event which was characterized as a United Way fund-raiser. United Way was running the entire program.

Claimant could provide no evidence that Respondent had any involvement with the directing of personnel on this stage. Claimant did not pursue any type of action against United Way. Claimant was not a participant in the Bromenn skit, but was assisting its production from the rear of the stage. The part of the stage was behind the curtains in a dimly lit area.

At the conclusion of the Bromenn skit, Claimant was involved with a rapid prop removal from the state, in order to make way for the next skit. Claimant testified to a question in part as follows:

Q. What did you do in terms of removing the boxes?

A. It seemed like help came out of everywhere because it was anybody behind the stage who had

even maybe the next skit in preparation for themselves. They were taking the boxes which we had

then carried one at a time during the development of the skit, now were coming off in mass. So

instead of going out kind of one at a time, they were coming back quickly, and they were all

coming at me, and I was the furthest one back, so it was, “here, take these, take these, take these.

Get them off, get them off stage. Come on, we got to get them off.” And I was backing as the

boxes were coming at me, kind of stacking them inside themselves, and backing up.”

Claimant indicated that this process was very rushed. The Claimant was backing into the direction she was going, not looking as she proceeded deeper into the corner of the stage. Eventually, Claimant backed herself into the far rear corner of the state, onto the life and off of the back edge of the lift, wedging herself in small gap between the back edge and a doorway.

Following the event, Claimant drove herself back to work and later that morning went to the emergency room. No expert medical testimony was presented at the hearing. Claimant testified that she experienced bruising, but no broken bones. Claimant testified about the various aches and pains that she experienced in the months following the incident. Radiological findings from BroMenn Healthcare indicate that Claimant has attributes of degenerative changes to the hip, pelvis, sacroiliac joints and right knee. These findings make no mention of any acute injury as a result of this accident.

[*220] Claimant provided evidence of various doctor’s visits and bills for the four months following the incident, totaling $3,102.53. Claimant testified that about one (1) week of work was missed; but provided no evidence of any monetary value. Claimant concluded her testimony by claiming that certain hip and leg pain, including “charley horses,” continue to occur, some nine years after the incident. Claimant provided no medical records or expert medical testimony to indicate that anything she has experienced beyond four months post-accident had any correlation to the incident. In fact, Claimant testified that the last time she visited a physician regarding this incident was within a few months following her injury, thus 1997 or early 1998.

Donald Kunde, assistant director of Illinois State University’s Office of Environmental Health and Safety, testified that Illinois State University first received notice on Claimant’s incident on September 22, 1997, four days after it occurred. Mr. Kunde testified that the lift is designed for moving heavy equipment on and off the stage and there have been no prior injuries involving the lift.

Claimant submitted a cover page of an installation and service manual for the lift that exists at the Bone Student Center. However, Claimant provided no evidence as to the installation instructions, options, models or variables contained in the manual. Mr. Kunde had no knowledge as to whether certain components (rails or chains) ever existed on the lift or were removed at some later time. He concluded his testimony by stating in response to a question as follows:

Q. If a person were walking - watching where they were going walking forward, and they were

on a lift - you talked about before entering the lift. If they were actually on the lift and looking

forward watching where they were going, would you think that they would see the gap in between

the end of the elevator lift and the door?

A. Yes

Claimant, Allen Mapel, offered testimony that the injuries to his wife caused him to incur damages under the theory of loss of consortium.

[*221] ANALYSIS

Claimants suggest several different theories upon which they assert that Respondent should be held liable for their injuries.

First, with regard to the lift itself, Claimants assert that it is a dangerous condition of which Respondent was on notice. The burden of proof for this claim in on Marion Mapel and Allan Mapel. “The claimant has the burden of proving by a preponderance of the evidence that respondent breached its duty of care, that claimant was free of contributory negligence in line with our decisions on comparative negligence, that the negligence of respondent proximately caused the injury, and that the State had actual or constructive notice of the dangerous conditions from all of the circumstances of the case.” Steger v. State of Illinois, 46 Ill.Ct.Cl. 262 (1993).

Initially, Respondent contends that the existence of the lift, positioned between the two walls of the rear of the stage is not a dangerous condition, merely because Claimant was injured there. The intended purpose for the lift is for moving heavy equipment to and from the stage. It is not a people mover. “unreasonable dangerous condition” has been defined as a product which is dangerous because it fails to perform in the manner reasonable to be expected in light of its nature and intended function. Hunt v. Blasius, 74 Ill.2d 203 (1978).

The question was posed as to whether or not the State was on notice that any dangerous condition existed at the stage. The testimony of Respondent’s witness Kunde indicated that he had no record of any previous accidents involving the lift. This Court has noted that the absence of a prior accident is a factor in establishing notice. See Sewell v. Board of Trustees of Southern Illinois University, 32 Ill.Ct.Cl. 430 (1979). (no prior accidents involving wheel chair students was a factor for the court when considering whether the State knew, or should have known, of a dangerous condition).

Claimants next allege that Respondent was negligent by not providing proper lighting in the rear area of the stage and not closing the gate that blocked the lift. Under both allegations, it should be incumbent upon Claimants to prove that Respondent had exclusive control of these factors. The evidence was to the contrary since the Claimant testified that United Way was “running the show.” Claimant stated that numerous people were [*222] backstage during this event, but she could not recall the presence of anyone affiliated with the University. Based upon the record, the conditions on the stage were not within the exclusive control of Respondent.

Further, the Claimants chose to to pursue an action against other potentially culpable parties, including United Way.

Court of Claims rule 790.60 provides in pertinent part as follows:

Sec. 790.60 Exhaustion of Remedies. As required by Section 25 of the Court of Claims Act [705

ILCS 505/25], the Claimant shall, before seeking final determination of his claim before the Court

of Claims, exhaust all other remedies, whether administrative, legal or equitable, against all other

sources of recovery for the injury or damages sought to be recovered by the claim, provided that

no frivolous or unreasonable action is required to be brought against any third party in order to

comply with this exhaustion of remedies requirement…

Accordingly, the “exhaustion of remedies” provision requires the Claimant to first pursue a claim against United Way or other potentially culpable parties before bringing an action against the Respondent.

Finally, Claimant alleges that Respondent somehow modified the lift after it was purchased, and this modification was negligent. Claimants state: “Mr. Kunde, an Illinois State University employee, agreed that the side rails were removed, as were the safety chains.” However, no such statement by Mr. Kunde could be found in the record. Mr. Kunde confirmed that Claimant’s Exhibit 2 was the front page of the installation and service manual for the lift. Mr. Kunde also confirmed that the photo on this front page had side rails and chains that were not present on the Illinois State University lift. However, since the entire installation and service manual was not presented into evidence, it is not known what the instructions, options, models or variables were applicable at Illinois State University. Mr. Kunde specifically stated that he had no knowledge as to whether the lift at Illinois State University ever had rails or chains. Thus, no evidence exists that these terms were at some point “removed” by Respondent as alleged, and the Claimants did not meet their burden of proof on this issue.

[*223] CONTRIBUTORY NEGLIGENCE

The Court must also review the Claimant’s conduct leading up to her injury to determine if Claimant’s actions contributed to her injuries.

Admitted into evidence was Exhibit 6 which described witness Karen Daudelin’s, characterization of the events which led up to the accident as follows:

The lift was in the up position and the doors were closed. The lady (Claimant) was standing on the

lift stacking the boxes and stepped backwards off the lift and fell in a standing position between

the lift and the doors…

Claimant was in a dimly lit area at the rear of the state, hurriedly stacking boxes being thrown at

her by a “brigade,” and backing deeper into the corner admittedly without watching where she was

going.

If Claimant is found to be contributory negligent for her injuries, in a percentage greater than 50%, she will be barred from recovering damages. 735 ILCS 5/2-1116(c). Based on the evidence the Court also finds that the Claimant, Marion Mapel, was contributory negligent in a percentage greater than 50% for her injuries.

LOSS OF CONSORTIUM

The Court must also weigh the evidence presented on the loss of consortium claim presented by Claimant, Allan Mapel.

Recovery for loss of consortium is subject to reduction by the percentage of fault attributed to the injured spouse. Blagg v. Illinois FWD Trucker Equipment Co., 143 Ill. 2d 188 (1991). Claimant, Allan Mapel’s, $15,000.00 claim for loss of consortium must be reduced if the Court determines that Claimant, Marion Mapel, is contributory negligent. Since the Court has found that the Respondent was not negligent and the Claimant, Marion maple, was contributorily negligent in a percentage greater than 50% for her injuries, this claim is denied.

[*224] DAMAGES

Claimant, Marion Mapel, presented medical bills relating to her injury totaling $3,102.53. She testified that she missed one (1) week of work but offered no value of loss of income. She was, however, award an Illinois Industrial Commission Worker’s Compensation award of $13,194.00 which was for compensation for loss of income and for the permanent damage to her body although the worker’s compensation award was never entered into evidence. Claimant offered no other evidence pertaining to any special damages incurred as a result of her injuries. The Claimant asks the Court to award her $75,000.00 based on the claim presented. In addition, the Claimant testified as to bruising and abrasions, but the Claimant suffered no broken bones and offered no medical testimony pertaining to the medical conditions surrounding the Claimant’s injuries. Also, there was no evidence as to the permanency or prognosis of Claimant’s injuries. Based upon the findings in this case and the award in the worker’s compensation claim which was for loss of income and for the permanent damage to her body, it would be improper for this Court to award Claimant any compensation for loss of income, for further medical expenses or for pain and suffering.

Medical support of prognosis or permanency of one’s injuries must be medically supported and be close in time to the offered medical testimony. Knight v. Lord, 271 Ill. App. 3d 581 (1995). Finally, any finding of damages should be reduced by Claimant’s contributory negligence, if any, and should be totally disallowed if her negligence exceeds 50%, since the Claimant’s contributory negligence exceeds 50% in this case, there can be no award for damages. Also, the claim of Allan Mapel for loss of consortium is denied due to the finding of no negligence by the Respondent and the finding that his spouse’s contributory negligence exceeds 50%.

It is hereby ordered that the relief requested in the Claimant’s Complaint is DENIED.