4. Pam Neal was a fairly credible witness in some respects, but her testimony was equivocal in certain respects.
Though varying from Torres' testimony, Neal's testimony did not foreclose the likelihood that Torres' right heel caught on the nail on the top step. Neal testified that what attracted her attention to Torres was seeing Torres' left ankle twisting, and that the cause of Torres' ankle twisting seemed to be a misstep. But Neal did not testify as to whether Torres' right heel caught on something, which caused Torres to misstep with her left foot, which caused Torres' left ankle to twist. Therefore, Neal's testimony did not unequivocally establish that Torres' testimony was not credible as to the proximate cause of her accident.
Moreover, Torres suffered no injury to her left ankle. If Torres had twisted her left ankle so seriously that it caused her to fall down a flight of stairs, Torres likely would have had some injury to her ankle.
Thus, though Neal appeared to testify truthfully, her testimony did not necessarily explain what precipitated Torres' fall or contradict Torres' testimony as to the proximate cause of her fall.
The government had a duty to use reasonable care in maintaining its premises. The government breached that duty by allowing its premises, specifically the top step of the Monroe Street outside stairs, to remain in a hazardous condition even after it had actual notice of that hazardous condition. The government's negligence proximately caused Torres' accident, injuries, pain, discomfort, and damages.
II. CONCLUSIONS OF LAW
1. This court has subject matter jurisdiction of this cause of action. 28 U.S.C. §§ 1346, 2671-80.
2. The law of the state where the alleged misconduct occurred generally governs the nature and extent of damages. Richards v. United States, 369 U.S. 1, 11-12, 82 S. Ct. 585, 592, 7 L. Ed. 2d 492 (1962); 28 U.S.C. § 1346(b). The law of the state of Illinois applies.
3. In order for defendant to be found liable, plaintiff must prove all elements of a negligence claim: duty, breach of duty, proximate cause, and damages. Hayes v. Bailey, 80 Ill. App. 3d 1027, 1030, 400 N.E.2d 544, 546, 36 Ill. Dec. 124 (1980).
4. The duty defendant owed plaintiff was reasonable care under the circumstances regarding the state of the premises. 740 ILCS 130/2; Hayes, 80 Ill. App. 3d at 1030, 400 N.E.2d at 546.
5. Plaintiff is entitled to recover only if her claimed injuries resulted proximately from the cause complained of in the complaint. See Wise v. St. Mary's Hosp., 64 Ill. App. 3d 587, 589, 381 N.E.2d 809, 811, 21 Ill. Dec. 482 (5th Dist. 1978).
6. Plaintiff must prove that defendant's negligence, more probably than not, proximately caused plaintiff's injury. Newell v. Corres, 125 Ill. App. 3d 1087, 1092, 466 N.E.2d 1085, 1088, 81 Ill. Dec. 283 (1st Dist. 1984).
7. Proximate cause is that cause that, in natural or probable sequence, produced the injury complained of in the complaint. See Hajian v. Holy Family Hosp., 273 Ill. App. 3d 932, 940, 652 N.E.2d 1132, 1138, 210 Ill. Dec. 156 (1st Dist. 1995). However, proximate cause is not established where the causal connection is "'contingent, speculative or merely possible.'" Newell, 466 N.E.2d at 1088 (quotation omitted).
8. In the case of an alleged defective condition on defendant's property, defendant must have had actual or constructive knowledge of the alleged defective condition. Tracy v. Village of Lombard, 116 Ill. App. 3d 563, 572, 451 N.E.2d 992, 998-99, 71 Ill. Dec. 838 (2d Dist. 1983); Gilberg v. Toys "R" Us, Inc., 126 Ill. App. 3d 554, 557-58, 467 N.E.2d 947, 949, 81 Ill. Dec. 825 (1st Dist. 1984).
9. In order to prove contributory negligence on the part of plaintiff, defendant must show that plaintiff failed to do that which a reasonably careful person would do, or has done that which a reasonably careful person would not do. Garcia v. City of Chicago, 229 Ill. App. 3d 315, 319, 593 N.E.2d 855, 857-58, 171 Ill. Dec. 35 (1st Dist. 1992).
10. Under a comparative negligence standard, which Illinois follows, if plaintiff's negligence was 50 percent or less of the total proximate cause of her injury, plaintiff is allowed to recover the proportion of damages not attributable to her own fault. That is, the trier of fact reduces plaintiff's damages by the percentage of fault attributable to plaintiff. Boasiako v. Checker Taxi Co., 140 Ill. App. 3d 210, 213, 488 N.E.2d 672, 674, 94 Ill. Dec. 673 (1st Dist. 1986); 735 ILCS 5/2-1116.
Pursuant to Federal Rules of Civil Procedure 52 and 58, the court enters judgment in favor of plaintiff, Sandra Torres, and against defendant, United States of America, in the amount of $ 40,000, reduced by 25 percent because of plaintiff's contributory negligence, for a total judgment in the amount of $ 30,000, plus costs.
Date: FEB 28 1997
JAMES H. ALESIA
United States District Judge
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