Derek Dejohn Dow v. State of Illinois

OPINION

Storino, J.

This claim is before this Court upon a recommendation from the assigned commissioner following an evidentiary hearing this matter is a premises liability claim asserted by Claimant, Derek DeJohn Dow (hereinafter “Claimant”), against Respondent, Chicago State University (hereinafter “CSU”), for injuries and damages that the Claimant sustained on August 10, 2004, after falling through an allegedly defective window on CSU’s premises.

The following witnesses and evidence were presented at trial:

FACTS

Claimant Derek DeJohn Dow:

Claimant testified that he attended CSU from 2000 until 2006.

Claimant

further testified that during the summer of 2004 he was employed as a counselor at CSU’s summer camp for theater and media arts.

As a counselor, Claimant often stayed beyond the normal 7:00a.m. to 3:00p.m. camp hours in order to ensure that the children, ranging in ages from eight to fourteen years old, were picked up by a parent or guardian.

Claimant testified that at approximately 4:00p.m. on August 10, 2004, Claimant was standing in the hallway of the Douglas Hall library monitoring a group of children that were awaiting their rides.

The hallway was lined with plate glass windows on each side and Claimant was standing with his back to one of those windows.

Claimant further testified that on August 10, 2004, he was twenty-two years old, approximately 5’7” and approximately 150-160 pounds.

Claimant

testified that he was talking and joking with the children.

In response to his joking, one of the children playfully pushed the Claimant.

Claimant testified that the child [*167] who pushed him was a little girl who was approximately ten to twelve years old, 4’6” tall, and approximately 70 pounds.

The push caused the Claimant to take a step back, whereupon his back touched the glass of one of the windows.

Claimant

testified that it was not a heavy push, but he stepped back so that his back gently touched the window.

The window shattered, and Claimant fell straight through the window.

The upper half of his body was lying outside of the building, and the lower half of his body was inside the building.

Claimant testified that he sustained the following injuries as a result of the accident: a laceration to his left wrist; a laceration to his left forearm; a laceration to his left thumb; a laceration to his right middle finger; and a severe laceration of the tip of his right ring finger which required reattachment.

A group of CSU nursing students who were in the vicinity of the incident provided Claimant with immediate first aid to control some of his bleeding, and he was subsequently transported by paramedics to Roseland Community Hospital where he received further medical treatment.

Claimant’s injuries required fifteen staples in his left forearm, staples in his left thumb, and further stitching for his other lacerations, including the reattachment of the tip of his ring finger.

Claimant testified regarding the physical extent and impact of his injuries.

Due to the injuries he sustained in his right arms, Claimant was unable to perform many daily life activities, such as opening doors, opening medicine bottles, driving, etc. While healing, Claimant was also instructed to keep his wounds dry.

Therefore, he needed assistance with bathing and other grooming activities.

Claimant had also suffered an injury to his left hand which further impaired his ability to take care of himself.

Claimant testified that he had the staples in for approximately one month, and the stitches were kept intact for approximately two months.

Claimant further testified that one month after the incident, he was able to extend the fingers of his right hand, but that doing so was painful.

His left hand became pain-free approximately two months after the incident and his right hand became pain-free approximately four to five months after the incident.

After the staples were removed, the scar on his left forearm became infected and required some antibiotic treatment.

Claimant testified that approximately four months after the incident he still experienced numbness in his fingers, and had difficulty shaking hands with people.

He further stated that he had difficulty holding a video camera, which prevented him from taking his freelance film shooting assignments, which he previously had done.

Claimant stated that he was not able to resume video shooting until the summer of 2005.

As to scarring, Claimant testified that he has a raised scar on his left forearm in the area where the staples had been placed, approximately one and a half inches to two inches in length.

Claimant testified that the point where his ring finger tip was reattached is still misshapen, bent and bulky.

His right middle finger also has an area of skin that is harder than the rest of the skin due to the way it healed.

Claimant further testified that he feels self-conscious about his scars, but has learned to get past it.

As to condition of the windows, Claimant testified that prior to the incident, he had passed through the Douglas Hall corridor many times, and had often heard the windows rattle and shake when the wind was blowing.

He further testified that [*168] at some point in 2004, prior to his own incident, he had seen one of the corridor windows boarded up.

Claimant testified that he had not inspected the window he fell through prior to his fall.

Claimant seeks to recover $2,160.00 for the medical bills he incurred from his injuries.

He requests a further sum of $10,000.00 for his pain and suffering.

Claimant also seeks $10,000.00 for the loss of a normal life suffered, and $20,000 for the permanent disfigurement he sustained.

In total, Claimant seeks to recover $42,160.00.

Wendell Tucker

Wendell Tucker (“Tucker”) testified that he was a student at CSU from 2001 until 2006.

He was Claimant’s classmate, and was also employed by CSU as a camp counselor during its summer 2004 theater and media arts camp.

Tucker testified that he had passed through the Douglas Hall corridor on numerous occasions, and had heard the windows rattle on windy days.

On August 10, 2004, Tucker was in a classroom with his summer camp students when a child informed him that someone was hurt.

He went to see what happened and observed the broken window that the Claimant had fallen through.

Tucker further testified that he had observed this same window boarded up on a previous occasion in 2004, and had knowledge about prior incidents of windows breaking in the Douglas Hall corridor.

Tucker testified that in the spring of 2004, prior to Claimant’s incident, there was a town hall meeting led by Dr. Daniels, CSU’s president at the time.

Tucker

testified that he was present at this meeting, and that one of the students had voiced concern that the windows rattled when it was windy.

Another individual at the meeting also mentioned that a student had fallen through a window.

Tucker further testified that Dr. Daniels’ response was that she would have the maintenance people look into any issues with the windows. Arthur G. Stiers:

Arthur Stiers (“Stiers”) testified that he is an architect who was employed by CSU as the director of physical facilities planning and management from 2002 until approximately 2010.

Stiers testified that upon his arrival at CSU in 2002, he found the University to be poorly maintained.

He stated that he had noticed a significant amount of maintenance and repairs that needed to be made.

Stiers stated that the windows in the corridor of Douglas Hall were made of tinted plate glass, and were in compliance with the industry and government standards of the 1970s when Douglas Hall was originally built.

Stiers further testified that if DouglasHall had been built in 2004, tempered glass would have been required in conformance with updated industry and government standards.

To his knowledge, no major changes or renovations, other than repairing broken windows with the same type of plate glass, had been made to the window prior to his arrival in 2002.

While serving as a facilities director at CSU, Stiers testified that there were multiple incidents of windows breaking as a result of individuals coming into contact with them.

He also testified that everyone that was involved in an incident with windows had been injured in some way.

Stiers stated that the protocol after an incident of broken glass usually required the campus police to immediately respond to the scene of the incident.

Subsequently, workers under his supervision were [*169] responsible for going out to an incident site to clean up debris and secure the area until a contractor could be contacted to replace the windows.

As a potential remedy to the window incidents, Stiers testified that he had recommended the installation of a wooden handrail along the interior corridor of Douglas Hall, near the windows, in order to provide some barrier between individuals and the glass.

Stiers stated that this proposal was ultimately rejected because in order to install the rails, CSU would have had to also upgrade the preexisting aluminum window frames.

The total cost of the upgrades was prohibitive in light of CSU’s budget.

After the first incident of a student falling through the Douglas Hall windows, total window replacement (upgrades to tempered glass) had also been considered, but again ultimately rejected due to cost considerations.

Although Stiers could not testify as to the exact dimensions and specifications of the plate glass windows used in Douglas Hall at the time of Claimant’s incident, he did testify that the proposed temper-glazed window replacements were significantly stronger than the plate glass, and could withstand incidental contact to a greater degree.

Stiers further testified that he did not have knowledge of any warning signs having been placed on or near the windows.

LEGAL ANALYSIS

This is a negligence claim brought by Claimant Dow against Respondent CSU for injuries that he sustained when he fell through an allegedly defective window on the Respondent’s premises.

In a negligence action, a claimant must establish the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach of that duty.

Holloway v. Board of Trustees of the University of Illinois, 45 Ill. Ct. Cl. 255 (1992).

Claimant is alleging that CSU’s windows were defective because they were prone to breaking upon incidental contact.

Thus, Claimant must prove by a preponderance of the evidence that: (1) CSU had actual knowledge that there was a defect in the glass and failed to remedy that defect, or (2) the defect existed for a sufficient length of time so that it should have been discovered through reasonable diligence, thereby charging the University with constructive notice of the defect. Id at 258.

The case of Ondes v. State of Illinois is highly dispositive of the matter at hand.

43 Ill. Ct. Cl. 272 (1991).

In Ondes, the claimant was a Southern Illinois University student who brought a premises liability claim against the State for injuries he sustained from gymnasium light fixtures which he alleged were defective and prone to breaking. Id. On the date of his incident, claimant went to the gymnasium and decided to stretch out before playing basketball.

Id. at 274.

He chose to hang on one of the light fixtures in order to stretch, because he had seen other students stretch in the same manner on previous occasions.

When claimant went to grab the light fixture bar it broke, whereupon claimant fell on his back and the bar fell on his face.

Id. at 275.

Even though Claimant was not able to allege a precise defect in the fixtures, he presented evidence of similar prior incidents of which the University had notice.

Specifically, University maintenance crews had to go to the gymnasium on at least seven different occasions prior to the claimant’s incident in order to repair and replace broken light fixtures. Id.

The Ondes court found that these [*170] incidents provided the University with notice that the gymnasium light fixtures were defective.

The University’s failure to warn of the danger was a breach of the duty it owed to gymnasium users. Id. at 278.

Thus, the Ondes Court held that there was sufficient evidence that the gymnasium light fixtures were defective even though a specific defect was not identified.

Similar to Ondes, CSU had notice of a potential defect in the Douglas Hall corridor windows.

Stiers’ testimony is especially instructive because he was in charge of maintaining CSU’s facilities.

Stiers’ testimony established that in addition to the Claimant’s incident there had been previous incidents of individuals becoming injured after incidental contact with the windows.

In fact, he stated that there had been a proposal to install a guardrail, or upgrade the windows in light of the frequency of individuals becoming hurt upon incidental contact with the windows.

These proposals were considered prior to Claimant being injured.

Even if the cost of these measures exceeded CSU’s budget, CSU could have still implemented less expensive safety precautions.

However, CSU never publicly addressed the potential danger with a school bulletin signs, or otherwise.

There is convincing evidence that CSU knew of the defective windows yet failed to take any reasonable measures to protect its students and others on the premises.

Respondent contends that it is not liable to the Claimant.

In support of this position, Respondent cites case law where the claimants’ negligence claims, stemming from injuries they sustained from broken glass, were dismissed.

However, all of these cases are distinguishable.

First, Respondent cites Zonta v. Village of Bensenville, in support of its position that the Douglas Hall windows were not defective.

167 Ill. App. 3d 354, 521 N.E.2d 274 (2nd Dist. 1988).

In Zonta, the plaintiff was injured when he was about to enter defendant’s village hall.

He

stopped to tie his shoe and as he learned his arm against the plate glass window next to the entrance doors, it shattered, injuring him.

Id. at 275.

The plaintiff was not able to specify how the plate glass was defective, so the defendant moved for summary judgment.

Id.

Plaintiff was not able to present any evidence in opposition to defendant’s motion. Id. at 276.

He did not have any witnesses, or any other evidence to show that the Defendant had any prior notice or knowledge of a potential defect.

Thus, defendant’s motion was granted. Id. at 277.

Unlike the plaintiff in Zonta, Claimant in the case at hand has presented evidence that CSU had knowledge of prior incidents involving Douglas Hall windows breaking due to incidental contact.

Respondent next cites Holloway v. Board of Trustees of the University of Illinois, 45 Ill. Ct. Cl. 255 (1991).

Similarly, the claimant in Holloway was injured when a glass door on respondent University of Illinois’ premises shattered, injuring her.

Id. at 256.

Claimant admitted that she could not specify how the glass door may have been defective. Id. Further, she was not able to offer evidence of any other similar prior incidents that would have put the respondent on notice that the glass door was defective.

Id. at 266.

Again, this case is distinguishable from the case at hand because Claimant has presented evidence that supports his allegation that CSU had knowledge that the Douglas Hall corridor windows were prone to breaking upon incidental contact.

[*171] Respondent asserts that it did not have a duty to replace the windows with safer, glazed glass because the windows were in compliance with the industry and government standards of the 1970s, when Douglas Hall was built.

Respondent cites case law where the Illinois Court of Claims dismissed Claimants’ negligence claims that arose from allegations of defective highway construction.

See Fejes v. State, 46 Ill. Ct. Cl. 109 (1994); Hodge v. State, 35 Ill. Ct. Cl. 50 (1981); Nass v. State, 32 Ill. Ct. Cl. 487 (1979).

The dismissals were partly based on the fact that the roadways were in compliance with the accepted safety standards at the time the roads were constructed, rather than the safety standards in effect at the time of the incidents.

Id.

However, all of these cited cases are distinguishable because none of the fact patterns involved evidence of a defect demonstrated by prior similar incidents that would have given the State notice of a dangerous defect. Id.

Compliance with standards and regulations at the time of construction, alone, will not dispose of a claim where there is sufficient evidence to show that the State has notice of a defect.

See Fejes, 46 Ill. Ct. Cl. 109 at 119; Hodge, 35 Ill. Ct. Cl. 50 at 54-56; Nass, 32 Ill. Ct. Cl. 487 at 494-495.

While CSU’s plate glass windows complied with the 1970’s industry standards and regulations, the numerous incidents involving broken glass with incidental contact put the State on notice of a defective condition.

Further, CSU

failed to take any reasonable measures to warn its students of the defect.

While cost is always a consideration for any institution which tries to maintain a budget, warning signs would have been a minimal, cost effective, temporary step for warning individuals to stay away from the windows.

Respondent’s compliance with standards at the time of construction, and budget considerations will not completely bar a claimant from recovering for injuries that result from a defect if the State knew about the defective condition.

The evidence shows that CSU had notice of the potential danger that the windows posed to individuals, and it had a duty to mitigate the danger in some reasonable manner.

Therefore, the Respondent should be held liable for Claimant’s injuries.

DAMAGES

The Claimant seeks a total of $42,160.00 in damages.

In evaluating the damages to be awarded in a personal injury action, the Court of Claims must consider the Claimant’s medical expenses, lost income, pain and suffering, and disability.

Giovanetto v. State of Illinois, 42 Ill. Ct. Cl. 106 (1990).

The Claimant’s

medical bills total $2,160.00.

Claimant further seeks $10,000 for his pain and suffering endured, as well as $10,000 for the loss of normal life suffered.

Claimant

finally seeks $20,000 for the permanent disfigurement he sustained.

A Claimant has the burden of proving his damages with certainty.

Gildehaus

v. State of Illinois, 46 Ill. Ct. Cl. 176 (1993).

Claimant also has the burden of proving his medical damages by a preponderance of the evidence. See Davis v. State of Illinois, 51 Ill. Ct. Cl. 214 (1998).

As to medical expenses, Claimant has presented medical bills from Roseland Community Hospital for charges he incurred on August 10, 2004.

Claimant’s visits are well documented, and clearly stem from the injuries he sustained when he fell through the Douglas Hall window.

The charges for these hospital visits total $2,160, so Claimant is entitled to this full amount claimed for his medical bills.

[*172] Claimant seeks $10,000 for his pain and suffering.

Claimant testified that he was experiencing pain and dexterity issues for several months following his incident.

However, he has not presented medical documentation to support these claims.

Claimant’s testimony as to the extent of his suffering contradicts his medical records which show that he had some stitches removed on August 17, 2004, but had all the remaining staples and stitches removed on August 21, 2004, which was eleven days following his incident on August 10, 2004.

The emergency room record of August 10, 2004, indicates that following his treatment, Claimant was prescribed Keflex (an antibiotic), Motrin (for his pain), and a topical antibiotic ointment.

However, on his August 13, 2004 visit to Roseland Community Hospital, Claimant’s hospital record indicates that he denied experiencing any pain.

Further, no additional pain medication was prescribed.

On August 17, 2004, Claimant’s record indicated that he was still taking Motrin and antibiotics, but the record further showed that he denied experiencing pain.

On August 17, 2004, Claimant also had some of his stitches removed, which is contrary to Claimant’s testimony that his stitches were kept intact for approximately two months.

Claimant’s remaining staples and stitches were removed from his right hand and left arm on August 21, 2004, approximately eleven days after his incident.

The August 21, 2004 discharge notes instruct Claimant to keep his wounds clean, but fail to include any prescription renewals for pain medication.

Further, this final hospital record of August 21, 2004 does not maintain Claimant experiencing any pain or disability in his hands.

As no medical testimony was presented, nor were there any medical records presented at trial to establish that Claimant experienced pain from his injuries beyond August 21, 2004, Claimant’s entire request for damages for pain and suffering has not been proven.

Nevertheless, Claimant clearly experienced some pain and suffering from the day of his incident on August 10, 2004 until the final removal of his staples and stitches, eleven days later, on August 21, 2004.

In addition to any physical pain which required Motrin, Claimant did not have use of his right hand and his stapled thumb on his left hand prevented him from having use of his left hand.

Based upon the record, Claimant’s injuries resulted in pain and suffering for eleven days in the reasonable amount of $1,000.

As to the loss of normal life suffered, the Claimant seeks $10,000.

The

Claimant’s medical records support the fact that Claimant’s daily activities were impaired for eleven days from the date of his incident on August 10, 2004, until the final removal of all of his staples and stitches on August 21, 2004.

Within that time period, Claimant did not have use of either of his hands and required assistance to carry out normal life activities like bathing.

Claimant also proved that he would not have been able to hold his video camera during these eleven days.

Nevertheless, there was no medical evidence presented that Claimant was experiencing loss of normal life beyond the eleven days between August 10, 2004 and August 21, 2004.

Based upon the evidence, Claimant’s injuries resulted in a loss of normal life suffered in the amount of $1,925.

Finally, Claimant seeks $20,000 for the permanent disfigurement he sustained on his right hand and left forearm.

Claimant testified that the area where his right fingertip was reattached is still misshapen, bent and bulky.

His right [*173] middle finger also has an area of skin that is harder than the rest of the finger’s skin due to the way it healed.

Claimant further testified that he has a slightly raised, one and a half to two inch length scar on his left forearm which is slightly darker than the rest of his skin.

This scar marks the spot where the staples had been placed, and appears to be permanent.

Claimant also testified that all of his scars sometimes cause him to feel self-conscious, but he himself stated that he gets past it.

Based

upon the evidence, Claimant suffered permanent scarring in the amount of $8,640.

IT IS HEREBY ORDERED that Claimant is hereby awarded $13,825.00.