Jennifer Wayer N/k/a Jennifer Gruber v. State of Illinois

OPINION

BIRNBAUM, J. On March 18, 2003, while a freshman student at Eastern Illinois University ("EIU"), Claimant sustained disfiguring burn injuries when hot coffee spilled upon her. Claimant purchased the hot coffee in a disposable coffee cup lacking any protective lid with her EIU meal plan dollars at the Taylor Dining Hall, one of the EIU owned and operated dining halls.

She brings this action based in negligence against the State of Illinois seeking $50,000 in [*138] compensation for pain, suffering and the disfiguring burn injuries. A hearing was held by Commissioner Martinez and her recommendation is before the Court.

As a condition of having been admitted as a freshman student to EIU, Claimant was obligated to agree to be part of EIU's residency program. The EIU residency program consisted of two major components: living on campus and using the campus run food services. Any EIU freshman student not living with their parents within 10 or 15 miles of campus was-required to live on campus, and pay for their housing and dining in one package.

Taylor Dining Hall, where Claimant purchased her coffee on the day of her accident, is one of the dining halls that is owned and operated by EIU.

Claimant testified that on March 18, 2003, she was an EIU freshman student living on the second floor of Taylor Hall. Taylor Dining Hall was set up buffet style, and Claimant obtained her breakfast and then a 12 to 16 ounce cup of coffee from the self-serve coffee station there.

Claimant testified that while protective coffee lids had been provided by EIU on prior occasions during her five to six months of residing at Taylor Hall, no protective coffee lids were available for the coffee cups on March 18, 2003. On March 18, 2003, Claimant had used her EIU dining pass on her EIU identification badge to enter the Taylor Dining Hall and the cost of the coffee that she purchased that day was deducted by EIU from Claimant's prepaid meal cost. Claimant said as she walked back to her dorm room inside of Taylor Hall, she took a sip of the coffee. Claimant testified that the temperature of the coffee was so hot that it startled Claimant, she kind of jerked, and she spilled approximately 8 ounces of the hot coffee on herself. Claimant's sweatshirt sleeve had been pulled up, and the coffee fell directly on her arm, went through her pants, and burned her left arm and left thigh.

On March 18, 2003, the Taylor Dining Hall was under the management of EIU's employee, Sheila Denise Poffinbarger ("Poffinbarger"). Poffinbarger testified that she was responsible for everything associated with the food service at Taylor Dining Hall, which included anything and everything in Taylor Dining Hall that had to do with the dining center's staffing, food, and service. Poffinbarger testified that on March 18, 2003, Taylor Dining Hall did not offer protective lids for its coffee service. Poffinbarger testified that Taylor Dining Hall never made coffee lids available as part of its coffee service prior to March 18, 2003.

There also were no signs posted to warn the students, including Claimant, of the dangers associated with walking around with cups of hot coffee without protective lids on the cups.

Despite knowing that protective lids for coffee cups were generally available in the food service community before March of 2003, Poffinbarger made the decision to provide coffee cups without lids that were being used at Taylor Dining Hall on March 18, 2003.

Claimant's claim alleges that the State of Illinois owed her a duty of reasonable care, including the duty to provide protective lids for the disposable coffee cups supplied at the EIU owned and operated dining hall, and that EIU breached that duty to its students when it made the business decision to purchase disposable cups without protective lids. EIU was solely responsible for the set up and operation of its dining halls, including complete control over the selection of the disposable cups used in the dining hall as well as the decision to use those disposable cups without protective lids. On March 18, 2003, EIU supplied Claimant and other students a self-serve coffee station requiring students to walk away from the station holding cups of hot coffee without protective lids. Other than foregoing coffee from the Taylor Dining Hall, Claimant, and other students, had no choice but to accept EIU's method of dispensing coffee.

[*139] As a result of the coffee spill, Claimant suffered injuries. Upon burning herself and for weeks afterwards, Claimant experienced: pain ranging from a 9 to a 10, on a pain scale of 1 to 10; suffering, and disability. Claimant, of Polish and German descent, is fair-complected.

Claimant sustained a first-degree bum in a triangular area on her left thigh in addition to a second-degree burn on her left forearm and wrist. Those scars remained upon the Claimant's body at the time of the hearing. Claimant's left inner wrist, in addition to being scarred is also hyperpigmented. The hyperpigmentation of the top middle of Claimant's left forearm extends from the top middle forearm all the way to the bottom lower forearm, and it gradually fades in hyperpigmentation. On the medial aspect of Claimant's left forearm hyperpigmentation, there is an area of scarring that has left her skin whiter, shiny, and with different texture. The texture is not as smooth as the Claimant's right wrist and forearm, which are of normal skin tone, white and fleshy. Claimant's permanent scarring has caused her, and continues to cause her, self-consciousness and embarrassment. The burned areas of Claimant's skin remain extra sensitive, preventing her from wearing any metal bracelets or watches on her left arm; As a registered nurse assisting stroke patients at Carle Foundation Hospital, Claimant is constantly reminded of her burns and is often required to explain to her patients that the scar is not a contagious disease that her patients can catch. Prior to the incident of March 18, 2003, Claimant did not have any scars to her left wrist, arm or thigh.

Claimant additionally suffered discomfort while healing from her burns in the initial weeks following the incident. Within half an hour of the burn, she immersed the burned areas of her body in cold water, causing tremendous pain. Her bums were subsequently bandaged, and she was required to shower with her arm up in order to prevent the burned arm from getting wet. She was required to go six days a week to Health Services, where they would change her bandages; she would change hex bandages on her own on Sundays, because Health Services was closed on Sundays. Claimant also underwent three to five surgical skin removal procedures at EIU's Health Services. Watching the nurses and doctors cut skin off of Claimant's arm was distressing to Claimant. Claimant was prevented from enjoying her daily exercise activities while recovering from her burn injuries. She had to take pain medication during that recovery period. Additionally, while her skin grew back, the itchiness of the growing skin prevented her from sleeping throughout the night, Claimant testified that two weeks after the incident she went to EIU's food service manager in the manager's small brick office at Taylor Dining Half looking for answers. Claimant further testified that the manager admitted at that time that the coffee machine was broken on March 18, 2003, and that they were working on getting it fixed. The manager also admitted to Claimant that she had ordered coffee lids and that she was waiting for them to arrive.

Sheila Denise Pofinbarger testified, on behalf of EIU, that she was not the person who met with Claimant to answer Claimant's questions two weeks after the incident. From Claimant's description of the person she spoke with, Poffinbarger believes that Claimant spoke with Poffinbarger's secretary at that time. Poffinbarger testified that she was the one who made the decision about the coffee cups to be used at Taylor Dining Hall. She did not recall whether the cup that Claimant was using on March 18, 2003, could have been purchased with lids or not at the tune that she ordered them. Poffinbarger testified that the coffee machine was not malfunctioning on March 18, 2003.

Claimant seeks $50,000 in damages from Respondent and calculated, as follows: for the pain and suffering that Claimant experienced over the course of 50 to 70 days after and on March 18, 2003 - $10,000; for the disability experienced by Claimant during the weeks after [*140] the incident - $5,000; for the permanent scarring, and the mental suffering associated with the scarring, of the left side of Claimant's arm and thigh - $35,000.

ANALYSIS

Claimant's action against the State is for negligence, alleging that Respondent owed a duty to Claimant, that the duty was breached by Respondent's negligent act or omission to act, and that Respondent's act or omission proximately caused a compensable injury to Claimant.

The State has a duty to "exercise ordinary care in maintaining the premises" in which Claimant poured her coffee. Fleischer v. State, 35 Ill.Ct.Cl. 799 (1983). "Reasonable care does not exceed to require the use of all measures to remove all risks...." Duble v. State, 26 Ill.Ct.Cl. 87 (1967). With respect to the serving of hot liquids, it has long been established that patrons are owed a duty to be provided with containers that are reasonably safe and sufficient for the purpose for which the containers are to be used. In Johnson v. Stevens Building Catering Co., 323 Ill.App. 212 at 216 (1st Dist. 1944), the court, concluded that as long as the defendant served hot tea to customers in glass containers, "it was its duty to furnish decanters to its patrons that were reasonably safe and sufficient for the purpose for which it used them." Id.

In Alter v. Starbucks Corp., 368 Ill.App.3d 813 (5th Dist 2006), another Illinois college student sued Starbucks Corp. ("Starbucks") after a cup of coffee she had purchased at the Starbucks on the campus of Southern Illinois University Edwardsville collapsed and burned her hands. While that court did not squarely address the issue of whether a duty to provide coffee cup lids exists, the court did state that "Starbucks has a duty to the general public to provide structurally sound cups, to properly place the lids on the cups, and to serve coffee at a reasonable temperature." Id. at 818.

Where a "defective condition" presents itself despite the fact that the State has exercised ordinary care, the State must be warned of this condition before it can be held responsible for any injuries occurring from the defective condition. O'Neill v. State, 46 Ill.Ct.Cl. 146 (1993). To prevail, Claimant has the burden of proving that Respondent had actual or constructive notice of the dangerous condition, and a failure by the State to remedy the condition effectively and efficiently. Carlson v. Board of Regents, 47 Ill. Ct. Cl. 171,173 (1994). Without proper notice being afforded to the State so .that the State could fix the defective condition, then a claimant cannot claim that the State has breached its duty of care by failing to act. O 'Neil, 46 Ill.Ct.Cl 146.

With respect to the issue of whether Taylor Dining Hall had provided lids for their coffee cups prior to March 18, 2003, Claimant's recollection of the events was clearer than that of EIU's witness, Sheila Denise Poffinbarger. In fact, Poffinbarger was unable to recall whether lids were even available for the cups that she ordered and provided to the students at Taylor Dining Hali on March 18,2003, Claimant's testimony on the issue of whether Taylor Dining Hall had prior to March 18, 2003, provided lids for their coffee cups was more convincing than Poffinbarger's testimony, and the Court finds that Taylor Dining Hall had in the five to six months prior to March 18, 2003, provided lids for the coffee cups at the self-serve coffee station on some, although not all, days of the school year. The very fact, that Taylor Dining Hall provided lids on some, although not all, days of the school year, reflects that Respondent had both actual and constructive knowledge of the inherent need to furnish containers to its patrons that were reasonably safe and sufficient for the purpose for which, the patrons used them. The buffet style cafeteria was set up for students to serve themselves and walk away with their food and beverage choices. The requirement for coffee lids was born from the very fact that students [*141] would, when having chosen coffee as their beverage, be walking away with hot beverages in their hands and carrying the other regular trappings of a college student; namely, back packs, laptop computers, and the like.

In deciding whether parties have the type of relationship where the law imposes on a defendant an obligation of reasonable conduct for the benefit of a plaintiff, the courts consider the reasonable (1) foreseeability and (2) likelihood of injury, as well as the (3) the magnitude of the burden on defendant in guarding against injury and (4) the consequences of placing that burden on defendant. Ward v. Kmart Corp., 136 Ill.2d 132, 140-41, (1990). LaFever v. Kemlite Co., a Division of Dyrotech Industries, Inc., 185 Ill.2d 380, 388-89 (1998); Charleston v. Larson, 297 Ill.App.3d 540, 546 (1st Dist 1998). In the instant case, the magnitude of burden placed on EIU, in either providing lids for the coffee cups offered at the self-serve coffee station or in placing a warning sign at the station that warned the students of potential burn injuries while choosing to serve themselves hot coffee without lids, is minimal.

All EIU needed to do for the March 8, 2003 serving day, was to order cups with protective lids that were already widely and readily available in the market place. Poffinbarger ordered cups as part of EIU's day-today operation of the Taylor Dining. Hall; she just needed to choose cups with lids that could provide protection against accidental spills. It would not be an unreasonable burden for EIU it to provide the lids.

The risk of harm was great and the burden of protecting against that harm was very low.

But we also find Claimant is guilty of contributory negligence in that Claimant should have reasonably known the inherent risk of carrying hot coffee without a lid. Claimant is required to exercise a duty of care where it is reasonable to infer an injury may occur. See Duble, 26 Ill.Ct.Cl. 87. In Davis v. State, 39 ILL. Ct. Cl. 185 (1987), this Court found that the State's negligence does not relieve the Claimant of a duty to exercise due care for his own safety. In the instant case, Claimant knew the coffee she poured would be hot. It is reasonable to assume that without a lid there is an obvious risk of walking with an open cup of hot coffee.

This risk is compounded by the fact that Claimant proceeded to walk and drink the coffee.

In 1986, the Illinois legislature enacted modified comparative negligence in the most common negligence causes of action. Under modified comparative negligence, the plaintiffs recovery is reduced by the plaintiffs contributory negligence unless the plaintiff is more than 50% at fault for causing his own injuries or damages. If the plaintiff is more than 50% at fault, judgment is entered in favor of the defendant. 735 ILCS 5/2-1116.

The plaintiff must, by a preponderance of the evidence, prove that the defendant was negligent. The defendant has the burden of proof as to the plaintiffs comparative negligence.

Casey v. Baseden, 111 IU.2d 341 (1986); D.C. v. S.A., 178 HI. 26. 551 (1997). The percentage of a plaintiff's negligence may only be used to offset any recovery obtained by that plaintiff and not by any other plaintiff.

Respondent owed Claimant, in addition to all of other EIU student customers and bystander students, a duty to furnish containers - in this instance cups with protective lids ~ that were reasonably safe and sufficient for the purpose for which it used them. Respondent failed to provide coffee lids on March 18, 2003 for the "to-go" coffee cups on its college campus. Respondent's breach of its duty was the direct and proximate cause of the severe and permanent injuries suffered by Claimant.

IT IS HEREBY ORDERED that Claimant, is entitled to damages as follows: Claimant is granted $21,000 in damages from Respondent, as follows: for the pain and suffering that [*142] Claimant experienced over the course of 50 to 70 days after and on March 18, 2003 - $5,000; for the disability experienced by Claimant during the weeks after the incident - $5,000; for the permanent scarring, and the mental suffering associated with the scarring, of the left side of Claimant's arm and thigh - $11,000. The total award of $21,000 is reduced by 33% arising from Claimant's negligence. Thus, the net amount of the award is $14,070.