Maryann Makkay v. University of Illinois

On February 19, 1999, Claimant, Mary Ann Makkay, was attending an Illinois State High School Association wrestling event at the University of Illinois, Champaign Assembly Hall. Claimant went to the event to see her daughter’s boyfriend’s brother wrestle. Claimant’s group arrived in Champaign from the Chicago area at approximately 10:00am., checked into a hotel, and went to the Assembly Hall at the University of Illinois.

When they arrived at the assembly Hall, they purchased tickets for the event. The tickets were general admission and they did not have assigned seating. Multiple wrestling matches were proceeding simultaneously.

The Assembly Hall had three sections: Section A was closest to the floor and seated approximately 2,000 people, [*226] Section B awes above Section A and seated approximately 4,000 people; and Section C was above Section B and seated approximately 10,000 people. Claimant originally sat in Section B, in the middle portion of the hall, as the day progressed she moved to Section A which was closer to the mats. In Section A, people were sitting in the seats, on the stairs and walking around the aisle or catwalk at the top of the section. Ushers were present in the area but did not remove or relocate the individuals sitting on the stairs.

When Claimant moved down to Section A she sat on the stairs at the very top row of Section A43 next to Gary Rigler’s grandmother. She left room for people to walk past her. The people sitting on the stairs were staggered; some were in front of her, some were to the right of her. After sitting in this location for about five minutes, Claimant decided to move down. She got up and began to walk down the stairs. Because of the people sitting on the stairs, Claimant had to zig-zag between people and was unable to reach the stair railing. Claimant fell down the stairs head first and hit the cement retaining wall at the bottom of the stairs with her head. As Claimant hit her head, her chin went to the right and she heard something crack. After hitting the wall, Claimant did not lose consciousness, but lost vision for 10-20 seconds. Her knee was scraped and bleeding and she had a big bruise mark on her chest. A few minutes later paramedics arrived and Claimant declined to go the hospital because she was embarrassed.

Claimant felt jarred and had a headache. After Gary wrestled, she returned to the hotel for lunch. That night she was achy, her jaw hurt, and she felt worse. Before going to bed, Claimant felt nauseous and vomited several times during the night. In the morning, she had a splitting headache and her jaw clicked when she opened her mouth. Claimant went back to the Assembly Hall and filed an accident report at the First aid station.

Before the fall, Claimant did not have any problems with her jaw, neck or back. After returning home, Claimant had a headache and a lump on her head. On Monday evening she went to see Drs. Uhler and Kolb, her family physicians, complaining of the excruciating pain in her head and her jaw. She was instructed to go the emergency room where she had X-rays and an MRI taken. Within several weeks, Claimant went to see Dr.

Sherman, a neurologist and Dr. Ingles, a dentist. Dr. Ingles referred her to Dr. Van Gilder, an oral surgeon. She saw Dr. Van Gilder once and went back to Dr. Ingles. Dr. Sherman treated Clamant for the head injury. Dr.

Sherman referred Claimant to Dr. Regan, an orthopedic surgeon, for the pain in her hand, knee and back. Dr.

[*227] Regan sent her for ultrasound therapy. Claimant stopped going to therapy because it was uncomfortable. In the summer of 2000, Claimant began seeing Dr. Orloski, a chiropractor, who preformed acupuncture on her in order to treat her head, neck and jaw. Claimant did not work from February, 1999 to August, 2001. At the time of the hearing, Claimant still had aches and pains in the joints, jaw and head. Her jaw still snapped and she would get headaches once a month which she would treat with Tylenol.

Numerous physicians testified by deposition with respect to Claimant’s injuries. Dr. Jeffrey Uhler is board certified in family practice. He testified that Claimant was first treated on February 22, 1999 for headaches, contusions, jaw pain, neck pain, nausea, loss of vision, chest pain, shoulder pain, left knee and back pain resulting from a fall down some stairs. He diagnosed Claimant with post concussion syndrome which he believed was caused by her fall.

Dr. Eugene Ingles testified that in March 1999, Claimant came to see him for routine care and complained of jaw discomfort and limited opening. He believed that Claimant was suffering from a trauma-induced jaw joint problem and referred her to Dr. Van Gilder, an oral surgeon, for a diagnosis. Dr. Van Gilder referred her back for the fabrication of a centric occlusion splint for the treatment of TMJ. In Dr. Ingles’ opinion, his treatment of Claimant from March 1999 to October 1999 was for a condition she sustained as a result of the fall in February, 1999.

Dr. Van Gilder saw Claimant in April 1999, because she was having headaches and jaw pain. He determined that Claimant had a decreased opening relative to her mandibular movement. When she did open her jaw, it deviated to a side and then returned to midline. She also had bilateral reciprocal clicks. He diagnosed tempromandibular joint disk displacement with reduction. In his opinion it was caused by trauma and was caused by the fall.

Dr. Sanford Sherman, a neurologist, first saw Claimant on March 12, 199. Claimant told him that she had fallen down some concrete steps at the University of Illinois, had hit her head on a concrete wall, and had neck pain, headaches, dizziness, nausea and light-headedness. Dr. Sherman performed an examination and found limitation of movement in the neck, tenderness in the neck muscles and weakens on the left side that might have [*228] been related to pain. He believed that Claimant had a concussion and that she was suffering from either a cervical strain or cervical radiculopathy secondary to her trauma. In his opinion, these conditions were caused by her fall down the stairs, but that they were not permanent.

Dr. Quinn Regan, an orthopedic surgeon, testified that he first saw Claimant in December 2000 when she came to see him for multiple joint complaints. He diagnosed cervical strain without severe pressure on the spinal cord and stated that the fall was the probable cause of the injury.

Dr. Kevin Orloski, a chiropractor, first saw Claimant in August 2000. She was complaining of nausea, headache, neck pain, jaw pain, thoracic pain, lumbar pain and left heel pain that she had ever since she fell down some stairs and hit a cement wall with her head. He diagnosed pain in the thoracic spin, lumbago, myositis, muscle spasm and joint dysfunction of the jaw, neck and spine. In his opinion these injuries assured that she was going to be in pain for a very long time.

Kevin Ullestad was the director of the Assembly Hall in 1999. He testified that Section A43, the site of the claimant’s fall, had six rows on the right side and three rows and a handrail on the left side. The rise on the steps was eight or nine inches in height. The short steps were 10 inches long, the long steps were 21 inches long and the steps were a maximum of 26 inches across. There were a total of 12 steps in that section.

The assembly Hall has about 16,1000 seats affixed to the ground and hosts 85 to 90 events per year and uses ushers at all the events. This was the only event for which general admission tickets were sold. Mr. Ullestad testified that the crowd at the wrestling event was a mobile crowd and more transient than at other events. Up to six wrestling matches could be taking place simultaneously and the matches lasted two to five minutes. Spectators would gather to watch a match and then leave. Ushers were positioned at the top of the exit behind A43. The usher’s job was to service the guests and if the usher’s had not been present, the doors would not have opened. Mr.

Ullestad testified that Respo9ndent did not sell stairs as scats and if someone was sitting on a stair they should be moved. Mr. Ullestad was working on the date of Claimant’s fall and, if he had seen people sitting on the steps, he would have told someone to have those people move.

[*229] Linda Bates was working as a nurse at the Assembly Hall on February 20, 1999. The log sheets for that day reflected that at 5:45 in the evening, Claimant stopped by to complete a post-accident form for a fall the previous day

complaining of a stiff neck and possible cracked ribs.

Claimant filed a claim against Respondent pursuant to Illinois common law and the Premises Liability Act of Illinois (740 ILCS 130/1 et seq.)

Claimant does not argue that Respondent was negligent because the steps were defective, slippery or poorly configured. Rather, Claimant argues that she was a business invitee and that Respondent was negligent in:

(1) failing to control the crowd; (2) permitting patrons to sit on the stairs; and (3) failing to provide a reasonably safe means for her to descend and ascend the stairs.

Respondent argues alternatively that it was not negligent because (1) the mere presence of people seated on steps does not present a dangerous condition; (2) it did not have notice of the dangerous condition; and (3) the condition was open and obvious.

Premises Liability Act

Under the Premises Liability Act (740 ILCS 130/1 et seq.) the State, as owner of the premises, owes a duty to persons on the premises to use reasonable care in keeping the premises reasonably safe for use by one lawfully on the premises. Daniels v. State, 53 Ill.Ct.Cl. 116, 121 (2000). This duty includes the duty to use reasonable care to discover any defects or dangerous conditions existing on the preemies. De Loe v. State, 46 Ct.Cl. 256, 257-58 (1993). However, the State does not have a duty to clear away every possible source of injury. A legal duty requires more than the possibility of occurrence and the State is charged with a duty only when harm is foreseable.

This involves 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, Ill.Ct.Cl.262.2666 (9193).

In an action under the Illinois Premises Liability Act a plaintiff has the burden of proving: (1) the existence of a condition that presents an unreasonable risk of harm to persons on the premises; (2) that the defendants knew, [*230] or should have known, that the condition posed an unreasonable risk of harm; (3) that the defendants should have anticipated that individuals on the premises would fail to discover or recognize the danger or otherwide fail to protect themselves against it; (4 a negligent act or omission on the part of the defendant; (5) injury suffered by the plaintiff; and (6) that the condition of the property was a proximate cause of the injury to the plaintiff. Jordan v.

National Steel Corp., 183 Ill.2d448, 454, 708 N.E.2d 1092 (1998).

Thus, the first issue to be addressed is whether the people sitting on the steps constituted a dangerous condition. Respondent claims that the mere presence of people sitting on the stairs does not constitute a dangerous condition. Claimant concedes that the mere presence of spectators on the steps may not constitute a breach of the duty of care. However, she argues that the staggered manner in which the spectators were seated, which prevented Claimant from having access to the handrail, did constitute a dangerous condition.

Here, the spectators impeded ingress and egress from the rows and on the stairs and blocked access to the handrail. In light of the fact that this was an extremely “volatile” and “mobile” audience, which could change seats after every match, we find that, under the circumstances, the presence of spectators sitting in a scattered pattern on the stairs constituted a dangerous condition.

The next issue is whether Respondent knew, or should have known, that the condition posed an unreasonable risk of harm. Respondent contends that it did not have actual or constructive notice of the dangerous condition because there had been no prior accidents. Claimant argues that the State had constructive notice, if not actual notice and that this would constitute a dangerous condition because it had a policy of not permitting specters, to sit on the stairs.

We find that Respondent had notice of the dangerous condition. Mr. Ullestad testified that Respondent did not sell stairs as seats. He further testified that if someone was sitting on a stair they should be moved and if he had seen people on the steps, he would have told someone to have them move. Claimant testified that she sat in Section B for approximately ½ hour before moving down to Section A and during this time, spectators were sitting on the stairs. Respondent had ushers on duty throughout the course of the wrestling tournament that were [*231] positioned at the top of the exit behind A43. This time period is sufficient to establish constructive, if not actual, notice of the dangerous condition on the part of Respondent.

Next, we consider whether Respondent should have anticipated that individuals on the premises would fail to discover or recognize the danger or otherwise fail to protect themselves against the danger. Respondent claims that the condition in question was open and obvious and the general rule is that a landowner has no duty to warn of open and obvious conditions. See minor, 47 Ill.Ct.Cl. at 114-15. Respondent argues that Claimant saw the spectators seated on the stairs in a scattered pattern, saw that it would be difficult to grasp the handrail, and there was no reason to believe that she would not protect herself against this hazard when she chose to seek a lower seat.

Claimant contends that the condition was not open and obvious. Even if it were open and obvious, she maintains that the “distraction exception” applies. Under this exception, a property owner owes a duty of care, despite an open and obvious condition, if it has reason to expect that the invitee’s attention might be distracted so that she would not discover, or may forget that she had discovered the obvious condition. Buchelers v. Chicago Park District, 171 Ill.2d 435, 665 N.E.2d 826 (1996); Ward v. K-mart Corp., 136 Ill.2d 132, 554 N.E.2d 223 (1990). Claimant argues that the proper inquiry is not whether the condition was inherently dangerous but whether, under the circumstances, it was unreasonably dangerous. She contends that even if she knew of the patrons sitting on the stairs, she was distracted enough, in that crowded arena, while descending the stairs, to fail to appreciate the risk posed by the patrons.

We find that the dangerous condition was not so open and obvious so as to preclude liability. However, Claimant’s failure to exercise caution establishes some liability on her part. While Respondent argues that the liability on Claimant’s part would be in excess of 50%, we find that claimant was 40% negligent.

Based upon the dangerous nature of patrons sitting scattered about on the stairs while other patrons were ascending and descending those stairs, the State’s policy of prohibiting this type of activity and its notice of the dangerous condition, we believe Respondent was negligent in not moving the patrons from the stairs. Claimant has established that she was injured in her fall when she attempted to navigate around the individuals seated on the stairs and the evidence established that this condition was the proximate cause of Claimant’s injury.

[*232] Negligence

In addition to premises liability, Claimant also alleged simple negligence on the part of the State. In light of our findings for Claimant on the States liability under the Premises Liability aAct we conclude it is not necessary to address this alternative theory of liability.

Damages

Claimant is seeking damages in the amount of $7,680.75 for medical expenses, $58,500. for lost wages, $25,000. for pain and suffering and $15,000. for loss of a normal life. Respondent argues that under Section 26 of the Court of Claims Act, the amounts that Claimant received in the form of disability payments must be deducted from any award she may receive.

Claimant argues that a setoff arising from her receipt of disability payments is barred by the collateral source rule. Under this rule, benefits received by the injured party from a source wholly independent of, and collateral to, the tortfeasor will not diminish damages otherwise recoverable from the tortfeasor. Wilson v.

Hoffman Group, Inc., 131 Ill.2d 308, 546 N.E.2d 524 (1989). The logic behind the collateral source rule is that an injured party has who had prudently entered into an insurance contract should be allowed to benefit from the contract. Failure to apply the collateral source rule allows the tortfeasor to escape the consequences of its wrongdoing by throwing the burden on the insured and rewarding those without insurance. Sallee v. State, 42Ill.Ct.Cl. 41,54 (1990).

While not explicitly bound to do so by its enabling act, this Court has applied traditional Illinois common law where it does not conflict with the act itself. Such common law includes the collateral source rule.

Accordingly, it is the policy of this Court to allow set-off’s pursuant to Section 26 of the Court of Claims Act only when monies received are from the State or another tortfeasor. Continental Insurance Co. v. State, 46 Ill.Ct.Cl. 26, 30-31 (1992).

Here, Claimant did not receive disability payments from the State or another tortfeasor.

[*233] Accordingly, the amount received by Claimant for disability shall not be set-off. We hereby award Claimant the amount of $7,680.75 for medical expenses, $58,500. for lost wages, and $20,000. for pain and suffering and loss of a normal life. This amount is reduced by 40% for Claimant’s negligence and Claimant is award the amount of $51,708.45.