NOTICE

Decision filed 01/16/15. The text of this decision may be NO. 5-13-0527 changed or corrected prior to the filing of a Petition for Rehearing or the disposition of IN THE the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

ROBIN D. HASTINGS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) St. Clair County. ) v. ) No. 12-MR-303 ) THE STATE OF ILLINOIS, DU QUOIN STATE ) FAIR, and THE DEPARTMENT OF ) AGRICULTURE, ) Honorable ) Stephen P. McGlynn, Defendants-Appellees. ) Judge, presiding. ________________________________________________________________________

JUSTICE STEWART delivered the judgment of the court, with opinion. Presiding Justice Cates and Justice Moore 1 concurred in the judgment and opinion.

OPINION

¶1 The plaintiff, Robin D. Hastings, filed a complaint in the Illinois Court of Claims

against the State of Illinois, specifically the Illinois Department of Agriculture (the

Department). Hastings alleged that she suffered personal injuries while attending events

1 Justice Spomer was originally assigned to this case. Justice Moore was

substituted on the panel following Justice Spomer's retirement and has read the briefs and

listened to the tape of oral argument.

1 at the Du Quoin State Fairgrounds on August 21, 2008. She alleged that she slipped and

fell on an "extremely slick concrete floor" while entering one of the women's bathhouses

located on the fairgrounds. She alleged that she suffered, among other injuries, a fracture

to her right kneecap as a result of the fall. The Court of Claims entered a summary

judgment in favor of the Department. The plaintiff sought a review of the Court of

Claims' decision, but the circuit court dismissed her petition for writ of certiorari. The

plaintiff now appeals the circuit court's judgment. For the following reasons, we affirm.

¶2 BACKGROUND

¶3 On August 21, 2008, the plaintiff attended the Du Quoin State Fair at the Du

Quoin fairgrounds, which is owned and operated by the Department. It had rained earlier

that day, and the plaintiff wore flip-flops. The plaintiff walked through wet grass and on

a wet sidewalk toward a bathhouse on the fairgrounds. At the bathhouse, she stepped

into its entrance alcove and slipped as she reached to open the door.

¶4 The sidewalk surface area where the plaintiff slipped and fell was more slippery

than the sidewalk leading up to the bathhouse's alcove. The building and grounds

maintenance supervisor for the fairgrounds testified in a discovery deposition that the

sidewalk leading up to the bathhouse was "more of a coarse broom" finish, while the

entryway was more of a "light broom" finish.

¶5 An engineer expert retained by the plaintiff inspected the bathhouse and opined

that the sidewalk leading to the entrance of the bathhouse was a "broom finish," while the

concrete entryway of the bathhouse was a "trowel finish," and that the entryway was

significantly more slippery than the sidewalk. The engineer believed that the difference 2 in the coefficient of friction between the two walking surfaces created a dangerous

condition that caused the plaintiff's fall. Specifically, the engineer concluded that "the

variation in the COF [coefficient of friction] between the broom finish sidewalk and the

trowel finish alcove located at the entry way to the Women's Bathhouse Facility was the

direct cause that led to the slip and fall that [the plaintiff] experienced." In his report, the

engineer wrote: "As [the plaintiff] walked from a less slippery broom finish surface to a

more slippery trowel finish surface, her forward gait was altered by the sudden change in

the frictional resistance between her footwear sole and the concrete she was stepping on.

This sudden change in frictional resistance created a hazardous situation and is the

primary cause of the accident." He wrote that "the State of Illinois used poor judgment

when electing not to voluntarily follow the COF of friction criteria established by both

the ASTM and ANSI [American National Standards Institute] standards."

¶6 A supplemental report authored by the engineer opined that the bathhouse had

been in service for over 20 years and that "foot traffic along with scheduled mopping and

cleaning of the surface at the entry alcove has altered the surface texture of the concrete

from when it was first installed." He believed that the wear on the surface of the concrete

reduced its frictional resistance, creating a hazardous condition. The engineer also

observed a crack in the vestibule concrete that had been present for many years and had

been repaired with concrete filler material. He opined that the concrete surface of the

alcove had not "been maintained to meet the current means of egress requirement."

¶7 On April 9, 2009, the plaintiff filed a complaint against the Department in the

Court of Claims alleging that her fall resulted from the Department's failure to inspect, 3 maintain, repair, and clean the walking surfaces, providing a walking surface that was too

slick for entryway use, and failure to warn of the slick and dangerous condition.

¶8 During the proceedings in the Court of Claims, the Department filed a motion for

summary judgment. The Department argued that the plaintiff could not establish that it

had actual or constructive notice of the allegedly dangerous condition posed by the

concrete near the bathhouse. The Department also argued that the plaintiff's cause of

action was barred by Illinois's 10-year statute of repose for construction-related claims

because the entryway and the surrounding sidewalk had been built more than 10 years

earlier.

¶9 In response, the plaintiff argued that a summary judgment was not appropriate

because there were genuine issues of material fact concerning the Department's actual or

constructive knowledge of the dangerous condition of the bathhouse entryway. In

addition, she argued that the statute of repose for construction-related claims was not

applicable because her claim was based on a negligent maintenance theory.

¶ 10 On April 10, 2012, the Court of Claims granted the Department's motion for

summary judgment. The court did not specify the grounds on which it granted the

motion. Subsequently, the court denied the plaintiff's request for a rehearing. The

plaintiff then filed a petition for certiorari with the circuit court of St. Clair County. The

plaintiff alleged that the Court of Claims acted arbitrarily in granting the summary

judgment; therefore, she was denied her right to substantive and procedural due process.

¶ 11 The Department filed a motion to transfer the venue of the proceeding to the

circuit court of Sangamon County pursuant to section 2-101 of the Code of Civil 4 Procedure (735 ILCS 5/2-101 (West 2012)). On November 20, 2012, the circuit court

entered an order transferring the case to Sangamon County. The plaintiff filed a motion

to reconsider, and a different judge entered an order granting the motion to reconsider,

finding that St. Clair County was a proper venue for the plaintiff's petition for certiorari.

¶ 12 On October 2, 2013, the circuit court entered an order dismissing the plaintiff's

petition for certiorari due to a lack of subject matter jurisdiction. The circuit court cited

Reichert v. Court of Claims,

,

(2003), and held that a

certiorari action may be used by a litigant to address alleged deprivations of due process

by the Court of Claims, but certiorari may not be used to review the correctness of a

decision by the Court of Claims based upon the merits of the case before it.

¶ 13 The circuit court believed that the Court of Claims should not have granted the

summary judgment based on the record before it. However, it concluded that the plaintiff

had a meaningful opportunity to be heard and was, therefore, afforded procedural due

process rights. The plaintiff now appeals the circuit court's judgment.

¶ 14 DISCUSSION

¶ 15 The plaintiff argues that the circuit court improperly denied her petition for writ of

certiorari because she was denied her constitutional right to due process by the Court of

Claims. We disagree.

¶ 16 The Court of Claims is the exclusive forum for litigants to make claims against the

State, including claims for damages sounding in tort. 705 ILCS 505/8(d) (West 2012).

The Court of Claims was established by the Court of Claims Act (the Act) (705 ILCS

505/1 et seq. (West 2012)). The Act does not provide for the review of decisions of the 5 Court of Claims. Klopfer v. Court of Claims,

,

(1997). Accordingly, decisions of the Court of Claims are generally not subject to

judicial review.

,

. However, the Illinois Supreme Court has

allowed a narrow exception to this rule and has held that certiorari is available for cases

in which the Court of Claims has deprived a party of his or her constitutional right to due

process. Reichert,

,

.

¶ 17 In Reichert, the court stated that "[t]he common law writ of certiorari provides a

means whereby a party who has no avenue of appeal or direct review may obtain limited

review over action by a court or other tribunal exercising quasi-judicial functions."

,

. The Reichert court noted that certiorari was available to address

alleged deprivations of due process by the Court of Claims, but "may not be used to

review the correctness of a decision by the Court of Claims based upon the merits of the

case before it."

,

. The Reichert court further explained that

the "[r]equirements of due process are met by conducting an orderly proceeding in which

a party receives adequate notice and an opportunity to be heard."

"Due process is not

abridged where a tribunal misconstrues the law or otherwise commits an error for which

its judgment should be reversed."

¶ 18 In the present case, the circuit court properly denied the plaintiff's petition for writ

of certiorari because the record establishes that she was afforded adequate notice and an

opportunity to be heard. The record includes pleadings that both parties filed with the

Court of Claims with respect to the applicable statute of limitations and the Department's

actual or constructive notice of the alleged defective condition of the bathhouse's alcove 6 walking surface. The plaintiff made extensive legal arguments supported by case law,

deposition testimony, an engineering expert's report, and other exhibits. The circuit court

was able to determine from the record of the Court of Claims proceeding that the plaintiff

was afforded a meaningful opportunity to be heard; therefore, she could not prevail in the

certiorari proceeding.

¶ 19 The substantive questions decided by the Court of Claims concerning whether the

Department was entitled to a summary judgment based on the applicable statute of

limitations or due to lack of actual or constructive notice are questions that are not

reviewable. As noted by the Illinois Supreme Court in Reichert, misconstruction of the

law does not amount to a due process violation. Id.; Reyes v. Court of Claims,

,

(1998) (finding plaintiff's due process rights

would not be violated even if it found the Court of Claims ruled incorrectly regarding the

statute of limitations).

¶ 20 In Reyes, the plaintiff brought a medical malpractice claim against the Board of

Trustees of the University of Illinois Hospital in the Court of Claims, and the Court of

Claims dismissed the claim as being untimely under the applicable statute of limitations.

The circuit court reversed the Court of Claims, finding that the plaintiff timely filed the

claim. On appeal, the Reyes court reversed the circuit court, holding that the circuit court

lacked jurisdiction to reverse the Court of Claims based on the merits of its decision

because the plaintiff's due process rights were not violated. Reyes,

,

.

7 ¶ 21 The court noted that the "requirement of due process is met by having an orderly

proceeding wherein a person is served with notice, actual or constructive, and has an

opportunity to be heard and to enforce and protect his rights."

,

. The court emphasized that due process does not guarantee against erroneous or

unjust decisions, and an error in a judgment or a misconstruction of the law does not raise

a constitutional question.

,

.

¶ 22 Similar to the plaintiff in Reyes, the plaintiff in the present case was not denied an

opportunity to argue that she filed her claim within the applicable statute of limitations or

that the Department had adequate notice of the alleged defective condition of the

bathhouse alcove. In the Court of Claims proceeding, the parties conducted discovery

with respect to the plaintiff's claim and the Department's affirmative defenses. The

plaintiff's discovery included interrogatories and a request to produce documents that the

plaintiff served on the Department, the deposition of the buildings and grounds

maintenance supervisor at the fairgrounds, and two reports from an engineering expert

who inspected the bathhouse's alcove and the sidewalk leading up to the bathhouse.

When the Department filed a motion for summary judgment, the Court of Claims

afforded the plaintiff the opportunity to submit affidavits, deposition testimony, expert

reports, and other evidence in response to the Department's motion. The plaintiff also

responded to the Department's motion with a memorandum of law that included citations

to relevant case law and statutes as well as legal arguments and analysis. The Court of

Claims considered the plaintiff's response, but granted the Department's motion for a

summary judgment. After the Court of Claims granted the summary judgment, it 8 considered the plaintiff's petition for rehearing, but denied it as well. The Court of

Claims, therefore, allowed the plaintiff an opportunity to be heard with respect to the

Department's motion and again with respect to her request for a rehearing. Because the

plaintiff was afforded due process in the Court of Claims proceeding, the circuit court

properly denied the plaintiff's petition for writ of certiorari.

¶ 23 On appeal, the plaintiff argues that a petition for writ of certiorari should include a

review of the record of the Court of Claims proceeding to determine whether its ruling

was arbitrary, capricious, or wholly unsupported by the facts and law. The plaintiff's

argument, however, is based on the merits of her position with respect to the

Department's actual or constructive notice as well as the timeliness of her claim under the

applicable statute of limitations. In her brief, after rearguing the substantive issues that

were before the Court of Claims, the plaintiff concludes that she was denied substantive

due process because the Court of Claims granted the Department a summary judgment.

She asks us to review the merits of the Court of Claims' summary judgment under an

arbitrary and capricious standard.

¶ 24 We note that in Reichert, the supreme court stated that certiorari review of Court

of Claims decisions was limited to determining whether the aggrieved "party receive[d]

adequate notice and an opportunity to be heard." Reichert,

,

(citing Reyes,

,

). Although the supreme

court's cite to Reyes and its discussion concerning the scope of certiorari review is obiter

dictum since the court ruled that the plaintiff's petition for certiorari was premature,

nonetheless, such a statement by the supreme court can be tantamount to a decision and 9 binding in the absence of a contrary decision of that court. Cates v. Cates,

,

(1993).

¶ 25 The plaintiff has not cited and we have not found any supreme court authority that

is contrary to Reichert concerning the proper scope of review for certiorari actions

seeking review of a decision of the Court of Claims. Furthermore, we have previously

considered Reichert and concluded that the "scope of review for a petition for certiorari

relief from a decision of the Court of Claims is quite narrow." Lake v. State,

,

(2010). Under current supreme court precedent, we

believe that the scope of our review is limited to determining whether the plaintiff was

afforded adequate notice and opportunity to be heard before the Court of Claims; we

cannot determine whether the Court of Claims misconstrued the law or otherwise

committed an error for which its judgment should be reversed. Reichert,

,

; see also Rossetti Contracting Co. v. Court of Claims,

,

(1985) ("In deciding that certiorari was appropriate

under the rare set of circumstances in the instance case, we do not now hold that

certiorari would be available to review the correctness of any decision of the Court of

Claims based on the merits of an appeal.").

¶ 26 In a certiorari action seeking a review of a Court of Claims decision, the function

of the circuit court is to examine the record from the Court of Claims proceeding and

determine whether the proceeding satisfied the petitioner's procedural due process rights.

If the circuit court determines that "the party is provided with notice and the opportunity

to be heard at a meaningful time and in a meaningful manner," the circuit court is to 10 dismiss the certiorari petition and quash the writ. Lake,

,

. In the present case, the circuit court examined the record of the

proceedings before the Court of Claims and correctly determined that the Court of Claims

afforded the plaintiff her due process rights. Therefore, the circuit court properly

dismissed the certiorari petition, and we must affirm the judgment of the circuit court.

¶ 27 Finally, we note that the Department moved to change the venue of the certiorari

proceeding, arguing that Sangamon County was the proper venue, not St. Clair County.

However, the issue concerning the proper venue is not before us on appeal and, as the

Department concedes in its brief, the circuit court's judgment is valid regardless of

whether St. Clair County was the proper venue. 735 ILCS 5/2-104(a) (West 2012) ("No

order or judgment is void because rendered in the wrong venue ***."). Accordingly, we

need not determine whether St. Clair County or Sangamon County was the proper venue

for the plaintiff's certiorari review.

¶ 28 CONCLUSION

¶ 29 For the foregoing reasons, we affirm the circuit court's judgment.

¶ 30 Affirmed.

11

NO. 5-13-0527

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT __________________________________________________________________________

ROBIN D. HASTINGS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) St. Clair County. ) v. ) No. 12-MR-303 ) THE STATE OF ILLINOIS, DU QUOIN STATE ) FAIR, and THE DEPARTMENT OF ) AGRICULTURE, ) Honorable ) Stephen P. McGlynn, Defendants-Appellees. ) Judge, presiding. __________________________________________________________________________

Opinion Filed: January 16, 2015 __________________________________________________________________________

Justices: Honorable Bruce D. Stewart, J.

Honorable Judy L. Cates, P.J., and Honorable James R. Moore, J., Concur __________________________________________________________________________

Attorney Edward J. Szewczyk, Callis, Papa, Hale & Szewczyk, P.C., 1326 for Niedringhaus Avenue, P.O. Box 1326, Granite City, IL 62040 Appellant __________________________________________________________________________

Attorneys Lisa Madigan, Attorney General, Carolyn E. Shapiro, Solicitor for General, Laura Wunder, Assistant Attorney General, 100 West Appellees Randolph Street, 12th Floor, Chicago, IL 60601 __________________________________________________________________________