Sheri Creekmore v. Illinois Department of Agriculture

OPINION

Sprague, C.J.

Claimant filed a Complaint for monetary damages. The Complaint alleges that she was injured when she fell at the DuQuoin State Fair Grounds. A hearing was held before Commissioner Ysursa on November 6, 2008.

Claimant was represented by William Wimmer, and Assistant General Geri Lynn Arrindell represented Respondent.

I. Background

Claimant alleges that she fell in a hole located on the DuQuoin State Fair Grounds on September 4, 2006.

Claimant and her husband were at the DuQuoin State Fair Grounds for the ARCA Remax Series automobile races.

At the time of the incident Claimant was walking from parking Lot 4 to the grandstands of the race track. She testifies that she was walking on a road leading from Lot 4 to the grandstands when she encountered a tram coming in the opposite direction on the road. She stated that she exited the roadway due to the oncoming tram and stepped [*283] into a six inch deep hole. She testified that after she stepped into the hole she fell forward and hit both knees on the roadway and then fell on her right shoulder.

It is undisputed that Claimant suffered a fractured left leg and a torn rotator cuff in her right shoulder. It was further stipulated that Claimant suffered $23,660.65 in medical damages and that the services were reasonable for like services in the area and were necessary to treat the injuries she suffered due to her fall. The sole issues are liability, contributory negligence and damages.

Creekmore testified that she suffered lost wages due to her injuries. She stated that due to her rotator cuff injury she was unable to use crutches and was therefore placed on bed rest for six to eight weeks. She stated that during this period that she could not work. When she was released to return to work in March 2007 she lost her job because her position had been replaced in January 2007. Claimant did not present any evidence to support this position, but Respondent did not contradict it. Claimant was out of work until October 2007 where she regained employment. She testified that she is being paid less in her current job as compared to her old job. Claimant did not present any evidence to support this testimony or attest for the future earning capacity of her current job, but Respondent did not contradict it. Claimant testified that during her injury she suffered increased costs for medical insurance costs for medical insurance and paid for benefits after she was hired at her new job. Claimant’s alleged lost wages and incidental damages are contained in Claimant’s Exhibit 10.

Claimant called her husband, Charles Gilbert Creekmore, to testify. Claimant’s husband did not witness the fall as he was working in the pits at the time of the incident. Mr. Creekmore did corroborate Claimant’s assertion of bed rest. Claimant’s husband testified to having taken pictures of the hole in question in March 2007.

Respondent presented Jeffrey Mason, Building/Ground Manager at the DuQuoin State Fair Grounds.

Mason testified as to the condition of the premises on the date in question. Mason stated that during the Labor Day Weekend prior to Claimant’s fall there were numerous activities at the DuQuoin State Fair Grounds. On Friday there was a horse race, on Saturday a different car race and on Sunday the ARCA race. He stated that on Friday in the area Claimant’s fall there was a temporary fence is supported by 1.5 inch posts. The posts are placed in the ground by using a 4 inch augur to dig a hole and then placing 1.5 inch posts into the hole. The posts are placed about every ten feet. Mason stated that the temporary fence up for Friday was removed prior to Claimant falling on Sunday. He testified that the general method of removing the posts involves pulling the posts out of the ground.

[*284] When the posts are pulled out the ground is disturbed resulting in holes left behind. Mason testified that all employees are instructed to fill in the holes and compact the ground.

II. Analysis

Claimant has made a claim for negligence. In order to prevail, 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). It is undisputed that the Respondent owes a duty to maintain its premises in reasonably safe condition for the use of the public Daniels v. State of Illinois, 53 Ill. Ct.

Cl. 116 (2000); Bahl v. State of Illinois, 49 Ill. Ct. Cl. 120 (1997). In order to establish the breach of the duty by Respondent the Claimant must establish actual or constructive notice of the defect Bahl v. State of Illinois, 49 Ill.

Ct. Cl. 120 (1997). While Respondent owes a duty of care, it is not an insurer of the safety of persons who visit its property Bahl v. State of Illinois, 49 Ill. Ct. Cl. 120 (1997).

The Respondent had a duty to maintain its property in reasonably safe condition. Claimant asserts that Respondent breached this duty by creating a hole from the removal of the temporary fence post in an area that Respondent knew people would be walking. Building/Grounds Manager Mason testimony supports Claimant’s claim that the hole was created by the removal of posts. Mason testified that there were posts in the area of where Claimant fell two days prior. Mason testified that at the time that Claimant fell the posts had been removed.

Mason testified that the removal of posts automatically leaves a hole and that it is the duty of the fairgrounds employees to fix the holes. Based upon a totality of all evidence it is more likely than not that the hole in questions was created by Respondent.

The next issue is whether the hole was unreasonably unsafe. The testimony and evidence shows a small hole about 6-8 inches wide and about 6-8 inches deep. Claimant testified that the hole was covered with grass and ground debris. Respondent acknowledged the safety issue with the holes when Mason testified that the employees are tasked with filling in the holes for safety reasons. It is clear from the evidence that the hole presents and unreasonable tripping hazard due to its size and concealment.

The final question on Respondent’s liability is notice. Actual or constructive notice is all that is required.

In this case Respondent had actual notice due to the fact that as Mason testified the hole appeared to be the result of Respondent’s employees removing posts from the ground and leaving the hole. It is axiomatic that if [*285] Respondent’s employees created the hole they had notice of it. This is further supported by Mason’s testimony that employees are instructed to fill in the holes after removing posts. This demonstrates that the creation of a hole from the removal of a post is known to the employees as it happens every time a post is removed. While Respondent is not the insurer of safety it is responsible for hazards that it creates.

The next consideration is contributory negligence since Respondent raised Claimant’s negligence as an affirmative defense. Respondent bears the burden of establishing that Claimant was negligent and if the negligence is greater than 50% then the claim is denied Connor v. State of Illinois, 58 Ill. Ct. Cl. 211 (2005); Russell v. State, 42 Ill. Ct. Cl. 83 (1990). In this case, it is alleged that Claimant had a duty to watch where she was going. Certainly Claimant has such a duty but this was not a case of an open and obvious hazard. As such any contributory negligence is less than 50%. With that said Claimant cannot be relieved her duty to protect herself.

The Court finds Claimant 25% contributorily negligent.

As for damages, the Parties stipulated to $23,660.65 in reasonable medical bills related to her fall.

Claimant suffered a fractured leg and rotator cuff tear. She was placed on bed rest for six to eight weeks.

Claimant suffered from the injury. Claimant did not present much evidence for loss of normal life. With that said $100,000 is fair compensation for her medical damages and pain and suffering.

Claimant presented a claim for $141,609.79 in lost wages and benefits. Claimant asserted that due to her injury she was out of work for eight weeks. Her rate of pay was $37,387.42 annually which equals $102.43 per day. She stated that while she was unable to work her job was given to another person. She did not gain new employment for over a year after her termination. She claims total loss of days 417. She also claims future lost wages due to her new job being less pay. She claims $97,278.18 projected over her remaining working life. She claims $1,618.30 in lost benefits.

Claimant is entitled to time off from the date of her injury until her doctor released her to work on March 5, 2007. This equals twenty-one weeks worth of lost pay due to her injury. Her weekly pay is $718.99. Her lost wages for twenty-one weeks equals $15,098.79. As for the remaining lost wage claim, Claimant did not present sufficient evidence to support her claim. The only evidence that she lost her job due to her injury is her selfserving statements. As for lost future earning capacity, Claimant did not present any independent evidence of her future earning capacity other than her self-serving testimony that she is paid less and will always be paid less. As [*286] such her lost wage claim beyond the twenty-one week period of bed rest is too speculative. Claimant is awarded $15,098.79.

IT IS HEREBY ORDERED that Claimant’s claim is granted. She is awarded $115,098.79 in total damages. Reducing this by her 25% contributory negligence results in $86,324.09 awarded to Claimant.