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Tillman v. United States

August 2, 2006

DARYL TILLMAN, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION

Plaintiff Daryl Tillman ("Tillman") filed suit against the United States of America ("Defendant") claiming that Defendant's negligence was the proximate cause of injuries he sustained when he fell in Defendant's parking lot area. Tillman suffered serious injuries including a multiple fracture of his ankle which required metal implants. Unfortunately for Tillman, he already suffered from a serious back injury from his days in the military when he fell fifteen feet while repelling from a helicopter. His back condition worsened after the fall in the parking lot, and he seeks damages from Defendant for the exacerbation of that pre-existing condition. In spite of the obviously painful and serious injuries suffered by Tillman, the Court finds after a bench trial that Defendant did not owe a duty to him, and therefore he can not recover damages from Defendant. Judgment is entered for Defendant as set forth below.

I. Findings of Fact

A. The Location of the Incident

Great Lakes Naval Station ("Great Lakes") is an United States Navy training facility and station located in Great Lakes, Illinois, along Lake Michigan. The United States owns and maintains the Navy Exchange ("NEX"), which is located in Burkey Mall on Green Bay Road and is open to armed forces personnel, veterans, and their family members. On January 30, 2001, the Burkey Mall facility consisted of the commissary and the NEX, which contained a liquor store, department store, video store, and dry cleaner, among other smaller shops. Trial Testimony of Daryl Tillman (hereinafter "Tillman"), Kathy Tillman (hereinafter "K. Tillman"), and Evelyn Clintsman (hereinafter "Clintsman"); Deposition Testimony of Keith Morgan (hereinafter "Morgan"). The NEX and the commissary were connected in the same building through a hallway between the two. Tillman. This hallway was located nearest the NEX's main entrance, which is at approximately the middle of the building. Def. Ex. B; Tillman.

The NEX also had a large parking lot directly east of the facility. Tillman; K. Tillman; Clintsman; Morgan; Def. Ex. B. This parking lot also extended along the south side of the facility. Kang; Morgan; Def. Ex. B. There was one main entrance to the NEX and approximately three other entrances to the NEX's portion of the building: one on the southern end through the dry cleaners, one through the liquor store. Tillman; Morgan; Clintsman; Kang; Def. Ex. C2, C3. The liquor store or "package store" as some patrons called it, had an entrance from the parking lot in January 2001 and customers could access other parts of the NEX facility through the liquor store. Tillman; Clintsman; Morgan.

The NEX had one main entrance from the parking lot which was designed with a clearly marked cross walk to lead customers to that main entrance. Visitors walked generally west (or north if they parked along the south side of the building) and across the parking lot. As visitors approached the end of the main parking lot, they had to cross a two-way traffic road designated with stop signs and crosswalks leading into the NEX's main entrance. Tillman, Kang, Mann; Def. Ex. B-D. On the southern end of the parking lot, a raised, concrete parking median separated the main parking lot and traffic lanes from a row of approximately 12 reserved and handicapped parking spaces. Like the building, the parking median also runs in a generally north-south direction, but it is not connected in any fashion to the building. Kang; Morgan; Clintsman, Tillman; K. Tillman; Mann; Def. Ex. B-D. Viewing the raised parking median from the east, it is approximately 5-6 feet across (i.e., from east to west) and roughly 100 or more feet long (i.e., from north to south). Morgan; Tillman; Def. Ex. B-D.

This raised concrete median was encircled entirely by a curb and gutter system. The western curb contains metal drains (also known as inlets), which are designed in part to remove surface water run-off from the reserved/handicapped parking area. Kang; Mann, Tillman; Def. Ex. C-D. The raised parking median also contained metal signs anchored in the concrete designating the reserved and handicapped parking spaces. Tillman; Kang; Mann; Clintsman; Morgan; Def. Ex. C3-6, 12 and D1-3, 17. After crossing over the raised parking median and walking through the reserved/handicapped parking spaces, a person trying to access the entrance to the liquor store would be required to cross another one-way roadway before reaching the sidewalk immediately adjacent to the building. That roadway serves cars that are parking in the reserved and handicapped spaces. Kang; Tillman; Mann; Def. Ex B-D.

B. Weather Conditions the Day of the Fall

On January 30, 2001, Tillman fell on this concrete median that separated the main parking lot from the reserved and handicapped parking spaces. Tillman. On that day, there was snow on the ground. Clintsman, Tillman; K. Tillman. The exact amount of snow is disputed but weather records from the Waukegan Regional Airport's weather station recorded 37 inches of snowfall over 13 snow days of December 2000. Def. Ex. E2 at 32-33; Def. Ex. F1 at 1; Def. Ex. F2 at 5.*fn1 Similarly, the month of December 2000 set a record for snowfall measured at the Chicago Botanical Garden weather station at 31.3 inches total. Def. Ex. F3 at 5. A one-day snowfall record was set on December 30, 2000, at 7.2 inches. The period of record for those snowfall totals is 1981-2003. Def. Ex. F3 at 5. The average daily temperature recorded at the Waukegan Regional Airport weather station during December 2000 was 16.5 degrees Fahrenheit. Def. Ex. E2 at 2. Between December 13, 2000, and January 30, 2001, the maximum daily recorded temperature never rose above freezing for 33 out of 49 days (67% of the days during that time period). Def. Ex. E2 at 18-19; Def. Ex. E3 at 18-19. At the Chicago Botanical Garden's weather station, the average daily recorded temperature in December 2000 was 18.2 degrees Fahrenheit. Def. Ex. E2 at 2.

During January 2001, the Waukegan Regional Airport's weather station recorded three inches of snowfall over four snow days. Def. Ex. F1 at 1. In January 2001, the average daily temperature recorded at the Waukegan Regional Airport weather station was 24.5 degrees Fahrenheit, and 25.8 degrees Fahrenheit at the Chicago Botanical Garden. Def. Ex. E3 at 2. The Chicago Botanical Garden weather station recorded 0.12 inches of precipitation on January 29, 2001; 0.57 inches on January 30, 2001; and 0.17 inches on January 31, 2001. Def. Ex. E3 at 9. The Waukegan weather station recorded 0.08 inches of precipitation on January 29, 2001; 0.75 inches on January 30, 2001; and 0.15 inches on January 31, 2001. Def. Ex. E3 at 9. As of January 30, 2001, the amount of "snow on ground," as recorded at the Waukegan Regional Airport and the Chicago Botanical Garden, measured at least 4 inches deep. The "snow on ground" measurement consists of snow, sleet, ice, and hail. Def. Ex. E3 at 31, 33.

C. Tillman's Fall on January 30, 2001

Tillman moved to the Chicago area in 1995 while serving in the Army. Between 1995 and 1997, Tillman lived on Great Lakes Naval Station, until he married his wife, Kathy, in 1997. Tillman; K. Tillman. Between 1995 and January 30, 2001, Tillman shopped at the NEX at least once a week. Each time he arrived, he testified that he usually parked in the NEX's main parking lot and generally accessed the NEX through the liquor store's entrance - the same path that he took the day of his fall. Tillman. Tillman was aware that on January 30, 2001, there were marked crosswalks in the road between the NEX and the main parking lot. Id. The crosswalks were located immediately north of, and adjacent to, the raised concrete parking median upon which Tillman fell. They provided NEX patrons with safe access from the main parking lot to the building's main entrance. Tillman; Mann; Kang; Morgan; Clintsman; Def. Ex. B-D. On Tuesday, January 30, 2001, Tillman went to the NEX to buy his wife flowers for Valentine's Day. Tillman knew that the florist was located nearest to the hallway connecting the NEX with the commissary and that the florist had never been located near the liquor store's entrance to the facility. Tillman.

The weather on Tuesday, January 30, 2001, was cold and overcast. Tillman; Clintsman, Def. Ex. E1, 3. Clintsman, an employee of the NEX, recalled that it was snowing lightly around the time of Tillman's accident. Clintsman. The Waukegan Regional Airport weather station recorded rain, snow, fog, and haze that day. Def. Ex. E1 at 2. Tillman was wearing tennis shoes, jeans, a shirt, and a full, ankle-length leather coat that day. Tillman. When he arrived at the NEX, Tillman parked his car in approximately the southern-middle portion of the main parking lot and proceeded directly east across the lot. He was intending to access the liquor store's entrance, instead of walking towards the crosswalks that lead to the main entrance, which would have brought him closer to the florist inside the facility. Tillman. He chose this route across the median because it was the "quickest way to get through" to the and that, as a "military man," he preferred to take the "direct route" to things. Tillman deposition.

When he approached the cement median, Tillman admits that the entire median was completely covered in snow and ice. Tillman. He also acknowledged that the snow cover was high enough "to know that you didn't want to step on top of it." Tillman. Plaintiff decided to cross over the median by following a pedestrian-made path in the snow and ice. He admitted that the snow bank bordering either side of this path was at least 6-7 inches high. Tillman. Tillman also acknowledged that the snow and ice was piled higher on the western curb/edge of the raised parking median, where it was at least 4-6 inches high. Tillman. Although he did not know how the snow and ice came to be gathered on the median, Tillman believed that it appeared as though "that's how the snow fell," and that he did not see anyone from the United States placing or plowing the snow onto the median. He stated that the parking lot looked as if it had been plowed at some point. Tillman. Although they did not testify about the plowing of the lot on that day or any days prior to the incident, two NEX employees stated in general that the main parking lot is plowed from north to south and snow may end up on the median. Morgan; Clintsman.

Having lived in Texas and other parts of the south before coming to the Chicago area in 1995, Tillman was not accustomed to snow and that, despite having lived here since 1995, he felt like snow was a "new thing" to him. As a result, Tillman said that he tried to avoid snow as much as he could. Tillman deposition. Nevertheless, Tillman stated that he had made at least ten previous trips to the NEX when the facility and parking lot appeared as they did on the day he fell, and that he had crossed this concrete median at least twenty times on those prior occasions. Tillman. Tillman further admitted that even if the ...


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