Robert Szeniawski v. Illinois Department of Transportation

ORDER

Kubasiak, J.

This matter comes before this court on the complaint of ROBERT SZENIAWSKI, Claimant, and against THE STATE OF ILLINOIS, Illinois Department of Transportation, Respondent, seeking damages for personal injuries and seeking damages in the amount of $100,000.00.

The facts are as follows:

Claimant was simultaneously employed; full-time as a laborer by Keebler's Cookies and part-time for Catholic Charities as a seasonal laborer at the cemetery. Claimant testified that on April 12, 2002 at approximately 12:30 p.m. in the course of his employment, he was assigned to pick up debris along 111th street, approximately 150 feet east of Ridgeland Avenue. He stated that as he walked down the hill on the grassy area, approximately one foot from the 111th street curb, his foot went into a 6 inch hole. He continued to clean up the fence line and then about [*173] 2:15 p.m. he told his supervisor that he thought he had damaged his knee.

On April 15, 2002 Claimant visited his doctor, Anton Fakouri, M.D. of Midwest Orthopedic Consultants, S.C, and reported that he had injured his knee while working in a grassy area near the cemetery. The April 15, 2002 notes of Dr. Stephen Sokolski, D.O. of Advocate Christ Medical Center, also indicated Claimant's report of having twisted his knee while working at the cemetery. The medical records of the April 15, 2002 visit show that Claimant reported to his physician that his recovery from a prior injury had been progressing well until the week before when he lifted something heavy at work and his knee "gave out," causing him to fall. At trial, Claimant testified he was unable to recall that conversation.

At the time of the incident Claimant was 42 years old, 6 feet 6 inches tall, and approximately 300 pounds. Claimant's medical history included diabetes, non-healing wounds, staph infections, and problems with his right foot, left leg, and left knee. In June 2000, approximately two years before this incident Claimant underwent an MRI scan of his left knee, and another MRI in January 2001. Approximately 13 months prior to this incident Claimant underwent orthoscopic surgery on his left knee, but declined knee replacement because his doctor suggested that Claimant's then age of 42 years was too young for replacement. Claimant returned to work on March 4, 2002.

At trial, James Stumpner, Illinois Department of Transportation Bureau chief of

maintenance testified that as the time of the incident he was Illinois Department of

Transportation's South Area Operations Engineer, and that in that capacity he oversaw eight

maintenance facilities including the area of the subject incident. Stumpner testified that the area

in question was within the Illinois Department of Transportation right of way, and Respondent is

responsible to mow the grass in the area. Stumpner testified that there was no sidewalk along [*174]

the area in question, and that it is not designated as a walkway for pedestrians.

Stumpner indicated that in 1997 IDOT had entered into a contract for curb replacement at

the roadway adjacent to the incident site. Respondent was unable to produce a copy of the actual

contract because it was destroyed pursuant to the records retention act. He acknowledged that

the contractor's failure to back fill the area with dirt after removal of the wooden curb forms for

concrete would create a hazard, but that he was not aware of any such failure, and that the

contract resolution would not have been approved if the work had not been satisfactorily

completed.

He further testified that between 1997 and 2002, IDOT would have mowed the subject

area a minimum of three times per year between May and November, for a total of at least 15

cumulative mows. Maintenance workers are responsible to report any holes in the lawn, curb, or

gutter areas, that may be discovered in the course of maintenance. Stumpner's review of the

maintenance records indicated no report had been made by any IDOT employee or civilian.

Stumpner testified that the first indication of the existence of a hole at the subject site was

received by Claimant's Incident Report of Accident filed with IDOT on August 19, 2002. He

stated that IDOT has been unable to locate the alleged hole to date, but further acknowledges

that he had never personally visited the site.

The issue before this court is whether Respondent was negligent in maintaining its

premises at 111th Street and Ridgeland Avenue. The law is well established that the state is not

the insurer of the safety of persons entering its premises, however, it does owe a duty of

reasonable care in maintaining its new property. Stewart vs. State (1995) 47 Ill. Ct. Cl. 324. In

order for a Claimant to sustain his burden of proof, he must establish by a preponderance of the

evidence that Respondent breached its duty of reasonable care in maintaining its property, and [*175]

that Respondent's negligence was the proximate cause of both Claimant's injuries and resulting

damages. Noonan vs. State (1983) 36 Ill. Ct. Cl. 200. Further, Claimant must establish that

Respondent had actual or constructive notice of the dangerous condition. Ewing vs. State (2007)

59 Ill. Ct. Cl. 302.

Claimant contends that the destroyed 1997 contract between IDOT and Ganna

Construction for curb replacement at the incident site, represents key evidence to the claim.

Claimant contends that a party's failure to produce evidence within his control and not equally

available to an adverse party, gives rise to a presumption that the evidence would be unfavorable

to him. Tepper vs. Campo (1948) 398 Ill. 496, 76 N.E. 2d 490. And further that an adverse

presumption also arises from the deliberate destruction of evidence. R.J. Management vs. SRLB

Development Corp. (2004) 346 Ill App 3d 957, 282. Ill. Dec. 486, 806 N.E. 2d 1074.

Claimant asks this court to assume that the 1997 contract for curb replacement required the contractor to back fill the area where the wooden fence forms were removed after the concrete was poured, and that the absence of the contract leads to a presumption that Claimant stepped into a hole caused by the removal of the wooden forms, and failure to backfill the hole with dirt.

The record established that the contract was destroyed in 2003 pursuant to the records retention act. Claimant casts suspicion on the missing document because it was destroyed in 2003 after Claimant's Report of Accident which was filed on August 19, 2002. But Claimant's argument urges the court to conclude that the missing contract is conclusive evidence of constructive notice that the subject hole was created by the removal of the wooden curing forms which were not properly filled with dirt. Claimant's argument is not reasonable. Even if the court assumes that the contract expressly provides that the contractor is required to backfill the [*176] contraction site, there is no credible evidence that the requirement was not met. And, there is no reasonable evidence to support Claimant's contention that the contract was intentionally destroyed.

The subject site was maintained by IDOT employees at least 15 times between the time of construction and the date of incident, and yet no worker ever identified or reported any unfilled hole. No other person ever identified or reported an unfilled hole at, or near the subject location. Claimant has not established by a preponderance of the evidence that Respondent had actual or constructive notice of the defect, if any existed, and that failure precludes his claim against the state.

Based on the foregoing, Claimant's claim is hereby denied.