Rafael Flores v. State of Illinois

OPINION

SPRAGUE, J. Claimant¹ brings this claim in negligence for personal injuries suffered when Claimant fell through the roof of a State-owned empty building at 2900 S. Damen on April 11, 2016. Claimant initially alleged only ordinary negligence, and amended his complaint to allege willful and wanton conduct. Claimant seeks damages in an amount of $1,135,050.17 for medical bills, pain and suffering, loss of normal life, and disfigurement. Respondent filed affirmative defenses of contributory negligence and immunity under the Recreational Use of Land and Water Areas Act.

Factual Background

A hearing on the merits of the claim was held. Testimony was heard from Rafael Flores, Longinos Flores, and Nicholas Fountas, a retired State of Illinois property management employee. The parties stipulated to testimony of Theodore Ellis, another State of Illinois property management employee. The parties also stipulated that Claimant’s medical treatment was reasonable and necessary, and that Claimant’s medical bills in the amount of $35,050.17 were usual and customary, and were causally related to the injuries Claimant sustained at the Damen Silos on April 11, 2016.

On that date, Claimant and two of his friends decided to go to the property commonly known as the Damen Silos, located at 2900 S. Damen Avenue. At the time, Claimant was a 16-year-old high school student.

The Damen Silos is approximately 24 acres, located between the Chicago River and railroad tracks. Following a 1977 explosion, the railroad that owned the property abandoned it, and the State later came into ownership due to unpaid taxes. The property is surplus property, not used by the State for any purpose and not inhabited by anyone. It has been a surplus property since approximately 2004. The State sometimes allows television and film crews to use the property. Over half of the property’s perimeter consists of the Chicago River. The rest is bounded by fencing with a gate along 29th Street, railroad tracks, and an unfenced portion along the Damen exit ramp. This unfenced portion would be accessible to a pedestrian who walked down ¹ ¹ At the hearing, Claimant’s oral motion to substitute RAFAEL FLORES, who is now an adult, for his father, LONGINOS FLORES, was granted.

[*229] the Damen exit ramp and then crossed railroad tracks. Along this path were multiple signs reading “State of Illinois. No trespassing.”

As a property management employee for the State of Illinois, Nicholas Fountas’ duties from 2005 through 2015 included limiting accessibility to the Damen Silos. This included driving by the property on a weekly basis to confirm the gate on the 29th Street side was closed, that the existing fence was in good repair, making any necessary repairs, and replacing any defaced signs. All signs read “State of Illinois property. No trespassing.”

Fountas was aware that trespassers frequented the property. In addition to adults, he had seen teenagers there, although not often. He estimated that approximately five individuals would be there in the evening hours in a given week. Given the surrounding industrial area, at least five blocks away from any homes, people made an intentional trip to the property. Fountas would enter the property on occasion, including the two buildings along the slip on the river that are a issue here. The windows were broken, doors were missing, parts of the buildings had crumbled off, and there were holes in the roof. The property has extensive graffiti that started around 2004 or 2005 and increased. Sometimes there would be remnants of food and drink and other trash on the property. Beyond repairing the fence and gate and maintaining the “No trespassing” signs, the State did no other maintenance of the property, including to the multiple buildings that take up approximately 20-25% of the acreage.

In October and November 2015, Fountas emailed in his usual reports after visiting the property and reported that the gate had been demolished by vandals beyond repair, leaving dangerous conditions open to trespassers. Fountas was aware of the specific dangerous conditions of access to the river, the tall buildings on the property, loose items including portions of buildings no longer secured, and the buildings’ roofs. In the approximately ten years Fountas maintained the property, at least once a month the gate would be open, and he would chain it closed again. The gate had been seriously damaged approximately twenty times. Four or five of those times, the destruction had been complete and beyond the repair capabilities of Fountas and his assistant engineer, requiring professional repairs. In the fall of 2015, the gates needed to be replaced by outside professionals, as even when Fountas closed and locked the gate, a hole in the gate left the property accessible. Fountas received a quote of $2,900 for the gate replacement.

However, this was during the time of the State budget freeze, and no evidence was offered that the gate was replaced at that time.

Beyond repairs to the gate and fence, the State made no attempt to board up or block off the entrances to the buildings themselves or to cordon off the buildings. Entrances included openings the size of garage doors for large machinery, approximately two stories tall.

Claimant was aware of the Damen Silos; they were commonly known by his schoolmates. He had seen photos on Facebook of graffiti both inside and outside the buildings, and photos of the Chicago skyline. A couple months prior to April 2016, Claimant and two friends rode their bicycles to the Damen Silos, which are approximately one mile from their school. They entered through the main gate, which was open, and observed artwork and graffiti on the outside of buildings. On April 11, 2016, Claimant and three friends walked to the Damen Silos from school, with the main purpose of indulging Claimant’s photography interest, taking photos of the graffiti and skyline. The gate was wide open. Claimant knew that neither he nor his family or friends had owned the property. He also knew that neither the State of Illinois nor anyone else had invited him onto the property or otherwise given him permission to enter. He did not have a permit to enter, but did not know that he would need one. He could tell the buildings [*230] looked abandoned, with no doors and windows broken or missing. He knew what trespassing is, but did not think he and his friends were trespassing.

Claimant and his friends noticed thick ropes tied to the buildings that would facilitate access to the roof. One building had a ramp made of drywall propped to get into the first floor.

The ropes provided access to the fire escapes, and fire escape stairs and ladders were intact, allowing access to the roofs themselves. Claimant and his friends climbed to two rooftops, one of which was 15 stories high. Claimant and his friends entered a third building, two or three stories high. From the ground floor, they could see daylight through the holes in the roof. Claimant was aware that climbing on something high includes a risk of falling and injury, and that if a building is in decay, that probability is higher. Nevertheless, Claimant and his friends climbed an interior staircase in and over a brick wall to get onto the roof. On this third rooftop, Claimant had his friends pose for a photo against the skyline. Claimant stepped away, looking into his book bag for his camera, and fell through the roof to the floor two to three stories below. Strangers that were filming nearby called 911, and Claimant left by ambulance.

After his fall, Claimant was in extreme pain. Both of his wrists were fractured and dislocated. His hip and skull were also fractured. He suffered bruising and needed stitches. He was treated in the hospital for two to three weeks and left the hospital in a wheelchair. The parties stipulated to Claimant’s medical expenses and treatment.

It was three to four months until Claimant could walk under his own power. Two years later, he still experienced pain in his wrists and hip, and at the time of the hearing still felt wrist pain a couple times per week and hip pain when moving in certain ways when exercising.

At the time of the accident, Claimant was taking honors classes in his junior year in high school. Claimant missed two months of classes following the accident. He continued his schooling into his senior year, but found the school to be a constant reminder of the accident, and he ultimately did not graduate from high school. Prior to the accident, Claimant was a multisport athlete, playing on varsity teams since his freshman year, and on a park district water polo team that competed in the Junior Olympics. He also participated in karate and assisted his father with guitar lessons in the community. Claimant has not competed in any sport since the accident or participated in community activities.

Immediately following the accident, Claimant needed assistance with even the most basic human functions for about a month. Currently, his only physical limitations are workout duration and ability to run for only a short period of time and distance. He has physical scars on his eyebrow and both wrists.

Subsequent to Claimant’s accident, in late 2016 or early 2017, State of Illinois employee Theodore Ellis took over the management of the Damen Silos property and the first time he went out to the property, the gate was closed and secured.

Analysis

Claimant has stated a claim for negligence. In order to prevail, Claimant must establish by a preponderance of the evidence: (1) the existence of a duty owed to him by the Respondent; (2) a breach of that duty by the Respondent; and (3) that the breach proximately caused Claimant’s damages. See Johnson v. State, 50 Ill. Ct. Cl. 153, 158 (1997) (citing Kraemer v.

State, 42 Ill. Ct. Cl. 236, 245 (1990)).

[*231] Duty

The parties dispute what duty, if any, was owed to Claimant.

Claimant argues that a duty of reasonable care was owed to Claimant to maintain the Damen Silos property and specifically the roof of the building from which he fell, or to block off that building, or to post a warning as to the dangerous roof. Even if Claimant was trespassing, Claimant argues that under the child exception, Respondent had a duty to remedy the dangerous condition or otherwise protect children from it, and that under the habitual trespasser exception, Respondent also had a duty of reasonable care. Alternatively, Claimant argues that Respondent owes a duty even to an adult trespasser, to avoid willful and wanton conduct, and that the State instead engaged in willful and wanton conduct, proximately causing Claimant’s injury.

Respondent argues Claimant was a trespasser, and therefore the State owed him no duty other than to avoid willful and wanton conduct. Respondent also pleaded the affirmative defense of contributory negligence, arguing that while Claimant was trespassing on State property, he disregarded an open and obvious danger, and was responsible for his own injuries. Alternatively, Respondent pleaded the affirmative defense of the Recreational Use of Land and Water Areas Act, arguing that the State had no duty to Claimant on the property at issue, which Claimant entered for his own recreational purposes.

Pursuant to a motion in limine, deposition admissions of Claimant and his father as to Claimant’s trespassing at the Damen Silos were admitted. Claimant did not know who owned the Damen Silos but knew that neither he nor his father or friends owned the “burnt down, abandoned” buildings. Claimant testified consistently at trial, describing the decaying, abandoned buildings that were obviously not in use, that he knew he did not own the property and had no invitation to enter. He testified he knew what trespassing was but did not believe he and his friends were trespassing.

A trespasser is “one who enters the premises of another without permission, invitation, or other right and intrudes for some purpose of his own, or at his convenience, or merely as an idler.” *Maikranz v. State of Illinois*, 38 Ill. Ct. Cl. 134, 136 (1985). Respondent erected fencing topped with barbed wire, including a secured gate, and posted several “No trespassing” signs along the fence. Claimant argues that because the gate was broken at the time of Claimant’s entry to the Damen Silos and because there is another entry point to the property that was not fenced, Claimant was not a trespasser.

The broken gate alone does not transform Claimant into an invitee. There could be no mistake that Claimant was entering this specific property as he walked by the broken gate, and Claimant was aware that he did not own the property or have an invitation to enter. The unfenced entry point to the Damen Silos property could be accessed only by pedestrians walking down a street overpass exit ramp and crossing railroad tracks. No evidence was offered that any pedestrian had ever entered this way, and Claimant certainly did not. The Court finds Claimant was a trespasser. As such, we do not address Respondent’s affirmative defense of the Recreational Use of Land and Water Areas Act, other than to say it does not apply to the facts here.

Child Trespasser Exception

Ordinarily, the State owes no duty to an adult trespasser other than to avoid willful and wanton conduct. *Maikranz* at 136. However, there are exceptions, including for children and [*232] where there is found to be permissive use of the property by habitual trespassers. Although Illinois has abandoned the attractive nuisance doctrine, under a negligence theory, Respondent has a duty to remedy a dangerous condition that may injure trespassing children where: (1) Respondent knew or should have known that children frequent the property; (2) There was a dangerous structure or condition on the property; (3) Children would be unable to appreciate the danger of the dangerous structure or condition, likely resulting in injury, and (4) The cost of remedying the danger is low when compared to the risk to children.

Mount Zion State Bank & Trust v. Consolidated Communications Inc., 214 Ill. Dec. 156, 161 (1995).

The parties dispute whether Respondent knew that children frequented the property.

Nicholas Fountas testified that he had observed approximately five trespassers in a week trespassing Damen Silos. He had not seen children there, but had seen teenagers, although not often. No specifics were elicited as to whether the teenagers he observed appeared to be young teens who are legally children, or older teens, who are legally adults. Claimant extrapolates that if Fountas saw five trespassers per week for many years he managed the property, it would equal several thousand trespassers, and that even the occasional view of teenagers would extrapolate out to a significant number over time. While there is no assertion that young children ever traversed the property and it is located in an industrial area at least five blocks from any homes or playgrounds, the Court finds that Fountas' direct knowledge of teenagers on the property suffices to provide notice that teenagers who are not yet 18 years old are likely to frequent the property.

The parties agree that the abandoned buildings and specifically, the rooftops of these abandoned buildings, constitute dangerous conditions on the property. Fountas' testimony establishes this, as does Claimant's testimony.

There was both testimony and argument as to whether a sixteen-year-old would appreciate the danger of the dangerous structure. Claimant argues that the hundreds of online photos of the Damen Silos, including graffiti and photos of the Chicago skyline taken from roofs of buildings there, entice teenagers to the property. Even if a teenager could appreciate the danger present, a distraction could intervene, such as occurred here, where Claimant was looking into his bookbag and not looking where he was walking on the roof. Respondent argues that a sixteen-year-old is able to appreciate the innate risk of climbing onto an abandoned building's roof that had holes in it large enough to see daylight through from the ground floor.

Illinois applies a reasonable person standard, expecting a "reasonable minor...to act with a degree of care which would be commonly expected of a person of similar age, mental capacity and experience under similar circumstances." Ma v. State of Illinois, 45 Ill. Ct. Cl. 180, 188 (1993). When considering the facts, it is relevant whether the dangerous condition was obvious or latent. For example, liability was found where an 8-year-old child visiting a State Park trespassed into an abandoned structure and was injured by falling through glass panels in the floor that had been painted, concealing the fact they were glass and lacked any support. Boaz v.

State of Illinois, 35 Ill. Ct. Cl. 594 (1982). In Boaz, the building had no fence, sign, lock, or any type of warning. Id. at 597. On the other hand, even children are expected to avoid obvious dangers. Mount Zion State Bank at 161. This Court has found that a child as young as three years old is presumed to know that if he climbs on a structure seven feet above the ground, he may fall and be injured. Ma at 188-189. Exercising ordinary care does not require precautions of such obvious risks. Ma at 187.

[*233] Here, Claimant was sixteen years old and a high school student who earned As and Bs while managing a schedule that included competing on multiple sports teams. Here, we also have the quintessential obvious danger of falling from a height. Mount Zion State Bank at 162. The Court finds that a sixteen-year-old is able to appreciate that climbing onto the roof of an abandoned, dilapidated building includes a significant risk of falling from a height, resulting in serious injury. This third prong of the child trespasser exception is not met, and therefore, we do not address the fourth prong here.

Permissive Use Exception

Claimant alternatively argues that the permissive use exception applies, resulting in Respondent owing a duty of reasonable care to Claimant. The permissive use exception is also sometimes called the frequent trespass exception. This exception recognizes that if a landowner continually tolerates trespassing, the trespasser may be deemed a licensee, and thus owed a duty of ordinary care. Reid v. Norfolk & Western Ry., 157 F.3d 1106, 1111 (7th Cir. 1998)(additional cites omitted). The exception triggers a duty of ordinary care only if “(1) the trespasser is a frequent trespasser (2) in a limited area (3) where the landowner knows or should know of the trespasser’s constant intrusion.” Id. Claimant offers Epple v. LQ Management, LLC in support.

Epple v. LQ Management, LLC, 2019 IL App (1st) 180853. In that case, a duty of ordinary care was owed to pedestrians who regularly traversed a narrow driveway adjacent to a hotel in downtown Chicago on their way to adjoining properties. The hotel manager was aware of the daily use of this space by pedestrians, and there were no signs or barriers limiting the general public’s entry or informing them that it was not open to the public. Id. at ¶21. In fact, the plaintiff testified there was signage welcoming pedestrians to walk there. Id. The Court finds Epple distinguishable. At the Damen Silos, quite the opposite from tolerating trespassing, Respondent erected extensive fencing along this 24-acre property. The photo offered by Claimant shows the fencing was topped by barbed wire. Signs were posted informing the public “State of Illinois Property. No trespassing.” Fountas was assigned to check the property on a weekly basis to ensure the property remained secured. Although the various replacement gates Respondent installed over the years continued to be vandalized, Fountas repeatedly repaired the gates himself and had them replaced by outside contractors at least four times during the ten years he oversaw the property. The Damen Silos are in an industrial area and entering the property would require intention. There was testimony that Claimant and his friends had that intention.

On the other hand, Claimant offered relevant evidence of Fountas’ emails and testimony of his recommendation in December 2015 to try a different type of gate, and his report that the current gate was damaged beyond repair and that even closing the gate left a hold that would permit entry. The gate was not replaced at that time. There is no evidence as to whether the gate was repaired or replaced prior to Claimant’s first visit to the Damen Silos in early 2016 when he found the gate open. There is stipulated testimony that Fountas’ replacement, Theodore Ellis, found the gate closed and secured upon his first visit to the Damen Silos in late 2016 or early 2017.

Given the frequent vandalism to the gate, the Court is not convinced that replacing the gate in December 2016 would have resulted in a closed and locked gate when Claimant reached the property, or that it would have deterred Claimant’s entry give the barbed wire-topped fence and “No trespassing” signs did not. To the extent Claimant argues the lack of replacing the gate [*234] constitutes an invitation or acquiescence to trespassing that triggered a duty of reasonable care, the Court disagrees. Not all tolerance of trespassing established permission. See Epple at ¶24, citing Skoczylas v. Ballis, 191 Ill. App. 3d 1 (1989).

In addition to the gate, Claimant offered alternatives that he argues Respondent could have employed to prevent access to the various buildings on the property, if not the property itself. Some of these would be easier for vandals to destroy than the gate and would not withstand the elements, such as roping off the buildings or stringing caution tape around them.

Others, such as blocking off entry to the buildings with concrete blocks, would be costly due to the size of the openings in these industrial buildings, which allowed large machinery to enter and are double the height and width of typical garage doors. Additionally, concrete blocks could still be removed by vandals. Respondent testified that buildings cover 20-25% of the 24-acre property. Respondent is not required to undertake all precautions no matter how burdensome and expensive. Id. at ¶23, citing Skoczylas. Respondent apparently did remove stairs or similar to the doors, as Claimant testified that the gained entry to on building by using a piece of drywall as a makeshift ramp to reach the door. In conclusion, despite the knowledge of trespassing on the property at large, the Court finds that Claimant remains a trespasser of the property at large as well as the building roof, and does not trigger a duty of reasonable care.

Willful and Wanton Conduct Even as a trespasser, Claimant is correct that Respondent still was obliged to refrain from willful and wanton conduct. To establish willful and wanton conduct, a claimant must establish that Respondent was more than negligent and acted with “an actual or deliberate intention to cause harm or an utter indifference to or conscious disregard for the welfare of others.” McBeath v. University of Illinois at Chicago and the Board of Trustees of the University of Illinois, 66 Ill.

Ct. Cl. 206, 207 (2014). There is no allegation Respondent engaged in any intentional action that proximately caused Claimant’s injury. The Court finds Respondent was not indifferent to the welfare of others, erecting and maintaining extensive fencing and posting “No trespassing” signs, showing the clear boundary, thus preventing any innocent pedestrian from accidentally traversing the dilapidated property. These actions by Respondent meant that even when the gate was damaged - and even missing - the public was on notice not to enter.

Claimant argues specifically as to the danger of the roof of the building from which he fell, arguing that Respondent’s failure to maintain the roof, repair the roof, warn trespassers of the unstable roof, or fence off that building and others constituted willful and wanton conduct that proximately caused Claimant’s injuries. Respondent had seen teenagers on the property previously, but never younger children, and the location was not nearby any residential area, playgrounds, or other areas where young children would naturally be. No prior injuries on the property were known to Respondent, nor did Respondent have prior notice of anyone climbing onto a roof, or reason to believe that anyone would.

While Claimant argues that even if the rooftop was an open and obvious danger, Respondent should have foreseen the possibility of distraction - that trespassers on the roof might be distracted by looking at graffiti, the view of the skyline or, as here, into Claimant’s own bookbag - this juxtaposes the relevant timeline. The open and obvious danger is that of falling from a height, such as this rooftop. Claimant did not encounter the distraction of this bookbag while on the ground level; searching in his bookbag did not cause him to miss the open and obvious danger of falling that exists any time a person climbs to such a height. The Court finds [*235] Claimant has not met his burden of proving by a preponderance of the evidence that Respondent engaged in willful and wanton conduct causing Claimant’s injury.

Accordingly, for the reasons set forth herein, IT IS HEREBY ORDERED that Claimant’s claim is denied and this matter is dismissed with prejudice.