Patricia Sullivan v. State of Illinois

OPINION

BIRNBAUM, C J. This claim is before the Court upon a recommendation from Commissioner Herbert B. Rosenberg following an evidentiary hearing.

Claimant, Patricia Sullivan, is seeking damages for an injury suffered as a result of a fall at Illinois State University. Claimant alleges that her fall was caused by an unsafe condition that existed on campus that the State failed to repair and that the State failed to warn people about the unsafe condition. She seeks $75,000.00 in total damages as follows: medical expenses in the amount of $8,667.37, lost wages of $432.26, as well as pain, suffering, and disability of $65,900.37. An evidentiary hearing on this matter was held before Commissioner Herbert B. Rosenberg.

[*116] FACTS

Claimant testified that on March 24, 2009, she had traveled to Illinois State University with her daughter for a campus visit. Claimant and her daughter attended an informational session and had a walking tour of the campus quad. After the walking tour, Claimant and her daughter left the quad area and were walking south on School Street near Hovey Hall. Claimant and her daughter were walking on a paved sidewalk. Between the sidewalk and School Street at this location was a stretch of brick pavers. Claimant and her daughter intended to cross School Street at the crosswalk where North Street intersects with School Street. When Claimant was approaching the crosswalk, Claimant moved from the paved sidewalk to the brick pavers adjacent to the sidewalk. In the course of moving from the sidewalk to the pavers, Claimant rolled her left foot and fell. Claimant heard a snap when she fell and was in pain.

Claimant testified that there was a height differential between the sidewalk pavement and the brick pavers at the spot where she crossed from the sidewalk to the pavers. Claimant described the height differential as a "big gap of about two inches.”

Claimant conceded that was an estimate. Claimants daughter had testified by deposition admitted into evidence that the height difference between the sidewalk pavement and the brick pavers was “at least a two-inch difference.” Claimant’s daughter did not measure the differential and also acknowledged that was an estimate. Counsel for Claimant entered into evidence three photographs that show the area where Claimant fell and show the differential between the sidewalk pavement and the brick pavers. The photographs show that the brick pavers had settled in a couple of spots along the length of the sidewalk pavement which created a height differential compared with the sidewalk pavement. But there was nothing in the photographs, such as a ruler, a coin, or any other object to serve as a scale in which to measure the magnitude of the height differential.

Claimant testified that the weather that day was cloudy, "chilly, probably fifties'', it had not been raining, and that there was no snow on the ground. Claimant testified that she was looking where she was walking and that she was wearing her glasses at the time. Claimant testified that she was wearing her flats on her feet that day.

After her fall, Claimants daughter and a passing gentleman helped Claimant to a nearby bench. When the pain in Claimants foot did not subside, Claimants daughter assisted her into Hovey Hall where a University employee provided an ice pack and some over the counter pain medicine. A University employee drove Claimant and her daughter back to Claimants car, and Claimant drove to the emergency room at BroMenn Medical Center. An x-ray taken at the emergency room confirmed that Claimant had a broken bone in her foot. Follow-up medical care by Dr. Solway, a podiatrist at the Illinois Bone & Joint Institute, further diagnosed three bone breaks including the fifth metatarsal on the outside of the foot. Claimant had a cast on her foot for eight weeks followed by two additional weeks in an air cast. Claimant needed several months of physical therapy before feeling back to one hundred percent.

Counsel for Claimant called Mr. Charles Scott as an adverse witness. Mr. Scott was the Director of Facilities Management at Illinois State University at the time of Claimants fall. Mr.

Scott testified that when the brick pavers were installed the pavers were at the same grade as the sidewalk pavement. He testified that brick pavers can shift due to weather conditions [*117] over time. Mr. Scott testified that the Illinois State University grounds employees inspect the University property on a daily basis. He testified that the University grounds employees had the discretion and a budget to make repairs to defective pavers and to place safety barricades around unsafe areas as needed.

Counsel for Respondent also called Mr. Scott as a witness in the case. Mr. Scott testified that the University did not have a written policy on how big a sidewalk height differential needs to be to require a repair. Mr. Scott opined that the height differential in Claimants photographic exhibits was less than two inches based on the height differential in relation to the size of the bricks in the photographs.

LEGAL ANALYSIS

While the State is not an insurer of safety, visitors are owed a duty of reasonable care while on State premises. Berger v. Board of Trustees of the University of Illinois, 40 Ill.Ct.Cl. 120 (1988). To prevail, Claimant has the burden of establishing by a preponderance of the evidence that a dangerous or defective condition existed, that the State had actual or constructive notice of the dangerous condition, and that the dangerous condition proximately caused Claimants injury. Simpson v. State, 37 Ill.Ct.Cl 76 (1985). The general rule is that minor defects in a walkway are not actionable, but it is within the purview of the trier of fact to determine when a defect rises to the level where a reasonably prudent person would anticipate it to be a danger to people. Id. There is no mathematical standard as to when a defect is actionable and each case must be determined upon the facts and circumstances. Bush v. State, 59 Ill.Ct.Cl. 342 (2007).

Claimant testified that the height differential between the sidewalk pavement and the brick pavers was about two inches. Claimant’s daughter testified that the differential was at least two inches. However, neither Claimant nor her daughter actually measured the differential. The testimony provided by Claimant and her daughter were estimates based on visual inspections. Claimant’s testimony is credible to establish that some degree of height differential did exist between the sidewalk pavement and the brick pavers. But the testimony is insufficient as to the magnitude of the height differential.

Claimant’s photographic exhibits further clarification of the magnitude of the height differential. While the photographs indeed show a deviation between the sidewalk pavement and the brick pavers, the photographs do not present any way to accurately measure the differential. Claimant’s photographs do not present a ruler, a coin, or any other object of a known size to be compared with the height differential. The best evidence available with respect to the size of the height differential is the testimony of Mr. Scott that the height difference is less than two inches. Mr. Scott’s testimony is based on his comparison of the height differential to the size of the bricks in the photographs. Mr. Scott testified that because he knows the size of the bricks in the photographs, he has a reasonable basis in which to estimate the size of the height differential.

It is the opinion of this Court that when all of the testimony and exhibits are considered, the height differential between the sidewalk paving and the brick pavers along School Street outside Hovey Hall did not pose an unreasonably dangerous condition. This [*118] decision is consistent with other cases where there is height variation between a sidewalk and the adjacent surface. The case Simpson v. State, supra, involved a pathway on State property that had a dropoff of 1 to ½ inches along its border. The claimant in Simpson stepped off the asphalt, fell, and fractured her fifth metatarsal in her foot. This Court ruled that the defect was not unreasonably dangerous. Likewise in the case Barnhisel v. Village of Oak Park, 311 Ill.App.3d 108 (1st Dist. 1999), a plaintiff fell and injured her knee when her foot stepped partially off a sidewalk into an adjacent cut-out area approximately 2 ¼ inches lower than the sidewalk. The Circuit Court of Cook County found that the height differential was not a dangerous condition for which the Village of Oak Park owed a duty of care.

The Claimant has not provided any evidence that Respondent had notice of the height differential between the sidewalk pavement and the brick pavers. As such, the Claimant has not provided any testimony or other evidence that shows that any of Respondent’s agents had any knowledge of the height differential, sufficient to prove actual notice. With respect to constructive notice, Claimant must show that the defect was substantial enough and had existed for such a length of time that a reasonable person would conclude that immediate repairs should be made or that warning signs be posted. Aetna Casualty & Surety Co. v. State, 37 Ill.Ct.Cl. 179 (1984). At the evidentiary hearing, the best evidence presented was the testimony of Mr. Scott who estimated the size of the height differential at less than two inches. Mr. Scott also testified that brick pavers may subside over time due to wet weather or the general freeze/thaw cycle. Generally any height differential defects develop over time from causes such as the settlement of the underlying soil. Additionally, Mr. Scott testified that the campus of Illinois State University has approximately 400 acres of land which contain over 20 miles of sidewalks. The University employs thirteen grounds workers per Mr. Scott's testimony. Even with daily inspections, there are over 30 acres of land and 1 1/2 miles of sidewalk per grounds worker. Taking into account the magnitude of a height differential under two inches, the weather conditions and freeze/thaw cycle that occur in March in Illinois, and the size of the Illinois State University campus, it is not reasonable to expect Respondent to have been aware of the complained condition on this date and for Respondent to believe that the condition would require an immediate repair or warning. The economic burden to locate and repair defects of this magnitude would be unreasonable for the University.

The Claimant has not sustained her burden of proof. Under the facts and circumstances shown in this case, Claimant has failed to show that an unreasonably dangerous condition existed. Claimant has also failed to show that Respondent had notice of the condition that did exist. Either one of these factors is enough to defeat the claim.

Therefore, the Court does reach the issue of damages.

IT IS HEREBY ORDERED that Claimant's claim is DENIED.