text:
    (No. 80-CV-0292

      In re Application of Frances Dawkins.

      Order filed April 24, 1980.

    Frances Dawkins, pro se, for Claimant.
    William J. Scott, Attorney General (Alan R. Boudreau, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an incident that occurred on May 19, 1979. Frances Dawkins, mother of the victim, Dewitt Dawkins, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on May 19, 1979, the victim was shot by an offender known to him, over a dispute that arose during a dice game in which the victim and the offender were participating. The incident occurred in a school play lot located at 739 N. Long Avenue, Chicago, Illinois. The victim was taken to St. Anne’s Hospital where he expired the following day. The offender was apprehended, prosecuted and found guilty of voluntary manslaughter.

2. That section 3(f) of the Act states that a person is entitled to compensation under the Act if the injury to or death of the victim was not substantially attributable to his wrongful act or substantial provocation of his assailant. Gambling is a crime in the State of Illinois under the provisions of Ill. Rev. Stat., ch. 38, par. 28.1. This Court has consistently held since the Court’s decision in the case of In re Application of Hardy, 31 Ill. Ct. Cl. 230, that where a victim was killed as a result of arguments during gambling, such a victim substantially contributed through his illegal acts to his own injury or death.

This Court in the Hardy case said:

“Although this Court cannot ignore this brutal killing, neither can it ignore the evidence before it as to the circumstances leading to it. The Act under which this claim is made is intended to compensate for injuries or death to victims who were innocent of any contribution to their own injury or death. The victim in this case, placed himself in a situation, through his illegal activities, where further illegal activities would be the probable result. Surely, the victim did not expect to be murdered, but just as surely he did place himself in a situation where he can not be considered an innocent victim.”

The reasoning is wholly applicable to the case before us.

3. That the evidence indicates that the victim was involved in a dice game for money prior to his being shot, and that the shooting resulted from a dispute as to the proceeds of the dice game. Playing dice for money is an illegal act in violation of the Illinois Criminal Code, (Ill. Rev. Stat. 1977, ch. 38, par. 28 — 1). Therefore, the victim’s death was substantially attributable to his wrongful act.

4. That the Claimant has not met a required condition precedent for compensation under the Act.

It is hereby ordered that this claim be, and is, hereby denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    (No. 80-CV-0373

      In re Application of Ruth Teague.

      Order filed March 19, 1980.

    Ruth Teague, pro se, for Claimant.
    William J. Scott, Attorney General (Alan R. Boudreau, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an incident that occurred on October 20, 1978. Ruth Teague, mother of the victim, Lawrence Oliver, Jr., seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on October 20, 1978, the victim was shot by an off-duty Deputy Sheriff of Cook County, after the deputy sheriff caught the victim in the act of burglarizing his garage. The deputy sheriff pursued the victim to a vacant lot at 3138 W. 16th Street, Chicago, Illinois. The victim stopped, swung a tire iron at the deputy sheriff, and the deputy sheriff then shot the victim. The victim was dead on arrival at Mount Sinai Hospital. The incident was classified as a justifiable homicide and no charges were brought against the deputy sheriff.

2. That section 3(f) of the Act states that a person is entitled to compensation under the Act if the injury to or the death of the victim was not substantially attributable to the victim’s wrongful act or substantial provocation of the assailant.

3. That it appears from the investigatory report and the police report that the victim’s death was substantially attributable to his burglarizing the deputy sheriff’s garage, and his subsequent attack on the deputy sheriff with a tire iron.

4. That the Claimant has not met a required condition precedent for compensation under the Act.

It is hereby ordered that this claim be, and is, hereby denied.


text:
    (No. 80-CV-0409

      In re Application of Lillian P. Barnes.

      Order filed April 24, 1980.

    John H. Gholar, for Claimant.
    William J. Scott, Attorney General (Alan R. Boudreau, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an incident that occurred on June 13, 1979. Lillian P. Barnes, ex-wife of the victim, Walter L. Barnes, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on June 13, 1979, the victim was shot by his wife during an altercation. The incident occurred in the apartment they shared at 1341 N. Lor el, Chicago, Illinois, as the victim was assaulting his wife. The victim was taken to St. Anne’s Hospital where he expired shortly thereafter. No charges were brought against the victim’s wife.

2. That section 3(f) of the Act states that a person is entitled to compensation under the Act if the injury to or the death of the victim was not substantially attributable to the victim’s wrongful act or substantial provocation of the assailant.

3. That it appears from the investigatory report and the police report that the victim’s death was substantially attributable to his assaulting his wife immediately before being shot by her.

4. That section 3(e) of the Act states that the Claimant is eligible for compensation if the victim and the assailant were not related and sharing the same household.

5. That it appears from the investigatory report that the victim and the assailant were related and sharing the same household.

6. That the Claimant has not met required conditions precedent for compensation under the Act.

It is hereby ordered that this claim be, and is, hereby denied.


author: Holderman, J.

text:
    (No. 5669
    Eastern Illinois Telephone Corporation, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 22, 1980.

    Richard P. Opsahl, for Claimant.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This case arises as a result of duplicate payment of a franchise tax by Claimant to the Secretary of State of Illinois.

The parties in this case entered into a stipulation of facts filed in the Court of Claims on March 4, 1975. Claimant, Eastern Illinois Telephone Corporation, is a corporation resulting from a merger of four separate telephone companies. This corporation was created for the purpose of becoming the surviving corporation of the merger.

As of December 31, 1967, E.I.T. Corporation had a stated capital of $1,000.00 and no paid-in surplus.

After the merger which occurred on January 4,1968, E.I.T. Corporation changed its name to the Eastern Illinois Telephone Corporation and had a stated capital and paid-in surplus of the surviving Corporation of $2,838,350.00. This figure was the sum of the stated capital and paid-in surplus of the five separate companies prior to the merger.

The stipulation of facts entered into is as follows (exhibits referred to were attached to the stipulation):

“Now comes the Claimant, Eastern Illinois Telephone Corporation, an Illinois Corporation, by Allen and Korkowski and Associates, its attorneys, and the State of Illinois by William J. Scott, Illinois Attorney General, and stipulate to the following:

1. Prior to January 4,1968 the following four Illinois companies or corporations were operating companies actively engaged in the telephone business in the State of Illinois:

CT & N Telephone Company

Eastern Illinois Telephone Company

Hoopeston Telephone Company, Inc.

Champaign County Telephone Company

2. Prior to December 31, 1967 E.I.T. Corporation was incorporated as an Illinois telephone company for the purpose of becoming the surviving corporation of a merger of the above four corporations with E.I.T. Corporation.

3. On December 31, 1967 E.I.T. Corporation had a stated capital of $1,000.00 and no paid-in surplus.

4. On January 4, 1968 the five companies merged with a stated capital and paid-in surplus totaling $2,838,350.00, this being the sum of the stated capital and paid-in surplus of the five separate companies prior to the merger.

5. Upon merger (January 4,1968) E.I.T. Corporation became the surviving corporation and the corporation name was changed to Eastern Illinois Telephone Corporation.

6. Following the January 4,1968 merger a ‘Report of Stated Capital and Paid7in Surplus Following Merger or Consolidation’ was filed with the Secretary of State, pursuant to Ch. 32, Par. 157.99,1967 Ill. Rev. Stats, listing the stated capital and paid-in surplus of the surviving corporation to be $2,838,350.00 (See Exhibit 1 attached).

7. The Secretary of State then billed the claimant for $2,837.35 through their attorney. (See Exhibit 2 attached)

8. Ry letter dated February 2, 1968 from claimant’s attorney, Jon R. Lind, of Isham, Lincoln and Reale, attached hereto as Exhibit 3, claimants were informed, in part, as follows:

‘Also enclosed is a copy of a letter which I just received from the Secretary of State requesting an additional check for $2,837.35 in payment of the franchise tax for the surviving company. This amount covers the franchise tax from July 1,1968 through June 30,1969. When you receive the Annual Report form for E.I.T. Corporation, you should file it showing the stated capital of $1,000.00, since the annual report refers to the status of the corporation as of December 31, (sic) 1972’ (actually 1967).

9. The information and instructions contained in Mr. Lind’s letter cited in paragraph 8 above were true and correct.

10. The claimant then paid an ‘additional franchise tax’ of $2,837.35 (Exhibit 4), said additional franchise tax being paid pursuant to Ch. 32, Par. 157.131 (c), 157.133, 1967 Ill. Rev. Stats, on the increase in the stated capital and paid-in surplus of the four operating companies being added to the $1,000.00 of stated capital of the former E.I.T. Corporation. (See Exhibit 5 attached)

11. As per paragraph 10 aboye, the pertinent part of Ch. 32, Par. 157.131 (c) reads as follows:

‘° ° °; and in addition, if the merger or consolidation becomes effective on or after January 1 and before July 1 of any year, the surviving or new corporation shall be liable for a further additional franchise tax (1) on the increased amount represented in this State of the resulting stated capital and paid-in surplus of the surviving corporation over the amount of its stated capital and paid-in surplus immediately prior to the merger, ° ° ®\

12. Upon receipt of the Annual report form mentioned in Mr. Lind’s letter, as set forth in Par. 8 above (Exhibit #3), the claimant, contrary to Mr. Lind’s instructions, altered the form by crossing out the name ‘E.I.T. Corporation’ and inserting the . name ‘Eastern Illinois Telephone Corporation’, and instead of submitting the ‘Annual Report’ form on the $1,000.00 stated capital of E.I.T. Corporation as of December 31, 1967, the claimant filled it out in such a way as to indicate that ‘Eastern Illinois Telephone Corporation’ had $2,838,350.00 in stated capital and paid-in surplus on December 31, 1967. (See Exhibit 6 attached)

13. As per the information contained in the erroneous Annual Report above referred to, the Secretary of State billed the Claimant for $2,838.35 (Exhibit 7 attached hereto).

14. In accordance with the billing referred to in Par. 13 above the claimant paid without protest the sum of $2,838.35 by check dated May 17, 1968. (Exhibit No. 8 attached hereto)

15. By letter dated May 24, 1968, Eastern Illinois Telephone Corporation informed the Secretary of State of claimant’s mistake and requested a blank Annual Report form for the purpose of filing an Amended Report. (Copy attached as Exhibit 9)

16. After a search of their records the Secretary of State’s office answered by letter dated June 18, 1968 informing claimant that their remedy lies with the Court of Claims. (Copy attached as Exhibit 10)

17. This stipulation of facts is submitted by the parties hereto in lieu of a hearing, which is hereby waived.

18. The parties hereto agree to follow this stipulation with the submission of briefs in accordance with Rules 17,18 and 19 of this Court.”

According to the stipulation, the Secretary of State, under date of February 1, 1968, billed the corporation for a franchise tax in the amount of $2,837.35. This payment was made by Claimant by check dated January 31, 1968. Subsequently thereto, as shown by Exhibit 6, Claimant paid a $15.00 fee which covered the filing fee required for the annual report of Claimant.

The Secretary of State’s office, under date of May 15, 1968, sent Claimant a second bill for $2,838.35 even though the State had already collected once for the same period of time. This bill was paid by Claimant on May 17, 1968.

When Claimant discovered the error of its second payment, it wrote to the Secretary of State’s office and requested a refund at which time it was informed by the Secretary of State’s office that their only recourse would be to secure a refund through the Court of Claims.

Respondent takes the position that due to the fact that the tax was not paid under protest by Claimant, Claimant is not in a position to receive any refund from these transactions.

Claimant’s position is that the overpayment is the result of wrongful billing by the Secretary of State’s office and they should be refunded one payment.

In the case of Savin Business Machines Corp. v. State, 30-CC-612, this Court set forth the principle that under the facts set forth there, no refund of taxes voluntarily paid could be made unless they were paid under protest.

While we adhere to that decision, it is our opinion that the present case is unusual. Here, the taxes were paid by inadvertence as the result of an error by Respondent. There would never be a second payment “under protest” in a case of this sort.

To sustain the position of Respondent that the Claimant is not entitled to any relief would put the Court in a position of approving a double payment of this franchise tax. This would result in a situation with serious consequences. Certainly, this Court should not knowingly encourage, aid or abet the Respondent in profiting from an error. This would be unconscionable.

Award is hereby entered in favor of Claimant in the amount of $2,838.35.


author: Roe, C. J.

text:
    (No. 5899
    The Elegante Ladies’ Apparel, Inc., Claimants, v. The State of Illinois, Respondent.

      Supplemental opinion filed October 28, 1980.

    Hoagland, Mauker, Bernard and Almeter, for Claimant.

      The original opinion in this case is published at 33 Ill. Ct. Cl. 13.

   Roe, C. J.

This cause coming on to be heard on the Court’s own motion to modify the award ordered in the Opinion dated May 2, 1980, issued by the Court in this claim;

The court hereby finds:

1. That the amount awarded Claimants in the instant claim was erroneously entered as $8,640.03.

2. That the correct amount which should have been awarded Claimants, as fully and adequately substantiated by the evidence in this case, is $12,361.95.

3. That the award in the instant claim should be increased by $3,721.92.

It is hereby ordered that $3,721.92 be, and hereby is, awarded to Hoagland, Maucker, Bernard & Almeter on behalf of the Claimants in The Elegante Ladies’ Apparel, Inc., et al., Case No. 5899.


text:
    (No. 6136
    John T. Thomas, Claimant, v. The State of Illinois, Respondent.

      Order filed March 21, 1980.

      Order on petition for reconsideration filed May 27, 1980.

      Order on petition for reconsideration filed August 22, 1980.

    Gomric and Strellis (Jack A. Strellis, of counsel), for Claimant.
   Holderman, J.

Complainant seeks recovery for time “unjustly served in prison” under the provisions of Ill. Rev. Stat. 1969, ch. 37, par. 439.8(c). That section provided as follows:

“The Court shall have exclusive jurisdiction to hear and to determine the following matters:
(c) All claims against the State for time unjustly served in prisons of the State where the persons imprisoned prove their innocence of the crime for which they were imprisoned; provided, the Court shall make no award in excess of any of the following amounts: for imprisonment of five years or less, not more than $15,000.00 ° ° ° and provided further, the Court shall fix attorney fees not to exceed twenty-five percent (25%) of the award granted.”

The events in this case were in the following sequence:

On January 4, 1968, Claimant was indicted by a grand jury in Cook County on 3 counts of murder. At the close of the case 2 counts were dismissed and the only count remaining was “felony murder”. The gist of this charge was that one John S. Benson was shot and killed by a companion of Claimant while the two of them were attempting a robbery. He was found guilty and on February 16, 1968, was sentenced to a term of not less than 20 nor more than 40 years.

The Claimant appealed and on June 26, 1970, the Appellate Court reversed without remand.

On August 14, 1970, after 34 months confinement, Claimant was released.

Thereafter, on May 14, 1971, he filed his claim before this Court and a hearing was held before the Commissioner on May 4, 1972.

The difficulty comes in interpreting the effect of an amendment to Ill. Rev. Stat. 1969, ch. 37, par. 439.8(c) which was effective on October 1,1972, after the hearing herein but before final disposition. The section as amended provides:

“(c) All claims against the State for time unjustly served in prison of this State where the persons imprisoned shall receive a pardon from the Governor stating such pardon is issued on the grounds of innocence of the crime for which they were imprisoned.”

In the instant case, no pardon was applied for. The State argues that the amended act should be applied retroactively. We have held to the contrary. Harpstreith v. State, 30 Ill. Ct. Cl. 546. There we held that since the statute made no reference to applying retroactively (as was the case in the Court of Claims Act of New York) we would not do so.

The State refers to McCray v. State, 73 Ill. Ct. Cl. 64, and Dillard v. State, 73 Ill. Ct. Cl. 65. In these 2 cases, the amendment to section 8(c) of the Court of Claims Act became effective before the claims were filed here. Even so, we did not dismiss the cases but continued them generally to give the Claimants time to ask for a pardon.

Further we have the case of Hammond v. State, No. 5894, June 16, 1977, where the facts were similar to this case now before us. There we held that the claim was “to be decided under provisions of Section 8 of the Court of Claims Act as in effect prior to its amendment by Public Act 77-2089 effective October 1, 1972.”

We therefore deny the motion of Respondent to dismiss and hold that the prior act before amendment controls here, under the sequence of facts we have listed above.

The testimony of the witnesses is set forth in People v. Thomas, 127 Ill. App. 2d 134, 262 N.E. 2d 233. Thomas and Robinson entered a tavern and Robinson fired the shot that resulted in a murder. However, the Court pointed out that there was no evidence of an attempt to commit a robbery and since the underlying crime was not proved, a conviction of felony murder was not warranted. The Claimant maintained throughout, and it was uncontradicted, that no communication of any robbery was ever made by the 2 men; that Robinson just walked up and shot the victim while the Claimant stood at the doorway. They entered the store solely for the purpose of purchasing some beer according to Thomas. He testified that he had no idea that Robinson was going to fire a shot. The Appellate Court agreed that the testimony favored his testimony.

The facts are sufficient to warrant an award.

We enter an award of $10,000.00 to Claimant and allow in addition the sum of $2,000.00 for attorney fees.

ORDER ON PETITION FOR RECONSIDERATION

Holderman, J.

This matter comes before the Court upon Respondent’s petition for reconsideration of order granting award and the Claimant’s reply to said petition.

Respondent’s petition states that Claimant, at the time of the hearing, had not secured a pardon from the Governor as was necessary. The file in the possession of the Court contains a copy of the pardon that was issued to Claimant on the 16th day of December 1977. The Court believes, in the interest of justice, it should not order a new hearing to introduce the pardon but should rely upon the pardon and hereby overrules that part of Respondent’s petition for reconsideration dealing with said pardon.

The Respondent’s petition also states that the Court shall fix attorney fees, not award attorney fees, and that said fees shall be fixed as a percentage of the award granted.

It is hereby ordered:

That the Court’s previous order of March 21, 1980, granting Claimant an award in the amount of $10,000.00 is reaffirmed and Claimant’s claim for attorney fees heretofore granted is now denied.

ORDER ON PETITION FOR RECONSIDERATION

Holderman, J.

This matter comes before the Court upon Claimant’s petition for reconsideration of order of May 27, 1980.

This Court, upon review of the file in this matter, enters an award in the amount of $12,000.00 and fixes attorney fees in the amount of $2,000.00.


text:
    (No. 6367
    Dennis O’Donnell, Claimant, v. The State of Illinois, Respondent.

      Order filed May 27, 1980

    Corboy and Kotin, for Claimant.
    French and Rogers, for Respondent.

       “On January 16, 1981, the Court denied the petition for rehearing and on March 30,1981, the Court denied the motion for a new trial and dismissed the cause.”

   Holderman, J.

Claimant filed his claim against the State of Illinois alleging that the negligence of the employees of Illinois Research Hospital in the treatment of Claimant for a malignant brain tumor was responsible for cataracts on his eyes.

Claimant was born on November 29, 1949. He graduated from high school in 1968 and went to Harper Junior College for one year.

Prior to July of 1969, his condition of health was excellent. While he was in college, he noticed he had double vision and in July of 1969 Claimant entered the University of Illinois Research Hospital for treatment of what was eventually diagnosed as a brain tumor.

While hospitalized, the neurosurgery department of Respondent hospital referred Claimant to the x-ray department of Respondent hospital to treat him for a mass or brain tumor in the third ventricle, which is located in the middle of the head. Claimant was given forty-seven x-ray and cobalt treatments over a ninety-two day period. The treatments were evenly split between four fields or portals of entry: the forehead, the back of the head and each side of the head.

When Claimant received radiation from the frontal position, he received it two inches above the eyebrow. The field was not to include the two eyes. Claimant, at no other time in his life, received radiation treatments. He received six treatments on the cobalt machine and forty-one treatments on the x-ray machine. Claimant received 300,000 volt x-rays.

During the period of his treatment, no protective shields or other devices were ever put over his eyes nor was his head ever held immobile when he received the radiation or cobalt treatments.

After these treatments and the tumor had been destroyed, Claimant went to see an opthalmologist relative to his eyes. The ophthalmologist, Dr. James McCarthy, informed Claimant that he had cataracts. He described them as “typical irradiation cataracts” which means that they were formed as a result of ionizing radiation.

It was Dr. McCarthy’s opinion that the cataracts were formed as a result of the treatments which destroyed the tumor. Dr. McCarthy, as stated, is an opthalmologist, and is not a specialist in radiology.

Edwin Liebner M. D. was one of the two witnesses who testified for Respondent. His title is head of the therapeutic radiation division of the Department of Radiology at Respondent’s hospital. He has been employed for the University of Illinois for the past twenty-five years and is board certified in radiology.

According to Dr. Liebner’s testimony, Claimant’s eyes were not anywhere in the direct field of radiation when the treatments were being given. He personally gave Claimant some of the treatments but he did not give him the entire treatment. His opinion, in direct contrast to the opinion of Claimant’s opthalmologist, was that the cataracts were caused by the cortisone therapy and not by the radiological treatments.

Dr. Liebner testified that under certain conditions they did use shields to protect the eyes but they did not do so in the present case because they would have performed no useful function.

. Dr. Oscar Sugar was the other witness who testified for Respondent. He testified that he had seen approximately six hundred patients who were treated by radiation and had never witnessed a case of cataracts which were asserted to be related to the radiation therapy given. Dr. Sugar, chief of the Neurosurgery Department of the University of Illinois hospital and board certified since 1950, testified that the tumor of Claimant was attached to the pineal body and located in the very center of the brain. Dr. Sugar further testified that the causes of the cataracts could have been the radiation therapy, muscular dystrophy which had been diagnosed in the Claimant at the age of four, or steriod therapy which was part of the treatment of the brain tumor. He stated he did not know which caused the cataracts.

In Dr. Liebner’s testimony, he stated he was familiar with eye shields and these shields, when used, are slid under the eyelids to cover the cornea and the lens. He further testified that the use of eye shields was not indicated in the treatments received by Claimant in 1969. He testified that the only time eye shields are used, and only one eye shield is used at a time, is when the tumor is near the eye or growing close to the eye which would place the eye in direct line of radiation. He stated that in Claimant’s case, the eyes were not in the direct field of radiation. He further stated that if eye shields had been used, the Claimant would undoubtedly have developed a corneal ulcer.

The testimony of the two doctors employed by the University of Illinois was in direct conflict with that of Claimant’s opthalmologist. Both of Respondent’s doctors were board certified in radiology.

Claimant alleges that the doctrine of res ipsa loquitur is applicable in this case and under that doctrine, Respondent is responsible for damages alleged to have been caused by the radiation treatments. The doctrine of res ipsa loquitur is applicable in a medical malpractice case only upon a showing that (1) the instrument involved was under the exclusive control of the party charged with the negligence; (2) the occurrence was such that in the ordinary course of things it would not have happened if the person so charged had used proper care; and (3) the injury was not a result of the negligence of the injured party. See Spidle v. Steward (1979), 68 Ill. App. 3d 134. This case lays down the rule that res ipsa loquitur will not be invoked against a surgeon merely because he performed an operation upon a non-negligent patient and got an unusual result. Claimant cites Johnson v. Marshal, 241 Ill. App. 80, as being right on the point of res ipsa loquitur. In that case, Claimant introduced expert medical testimony that the injuries suffered by him would not have occurred unless the defendant had deviated from the applicable standard of care.

In the instant case, there is no evidence, expert or otherwise, that the cataracts which formed in Claimant’s eyes would not have occurred unless Respondent had deviated from the standard of care.

In 49 Ill. App. 3d 539, the rule was laid down that in medical malpractice action, plaintiff must establish by expert testimony standard of care imposed upon defendant and then show by affirmative evidence unskilled or negligent failure to comply with such professional criterion which resulted to injury to plaintiff.

In the present record, there is not any medical testimony by a board certified radiologist that the acts of Respondent caused the injury complained of.

It is the opinion of this Court that Claimant, having failed to meet the burden of proof required, is not entitled to an award.

Claim denied.


text:
    (No. 7076
    Virginia Meade et al., Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 16, 1981.

    Brown, Kaplan & Shinitzky (Edwin J. Shinitzky, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Saul R. Wexler, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter arises in tort due to an accident on the State built and maintained bridge on Route I — 80 across the Rock River in Rock Island, Illinois, on September 5, 1971.

The death claim arose as a result of an alleged speeding up of a previously undiagnosed cancer condition. The death occurred several months after the accident, at which time the maximum allowable by statute was $100,000.00. At the time the accident occurred on September 5,1971, the limitation was fixed by statute at $25,000.00.

This case was tried upon a stipulation of facts entered into between the parties hereto. The surface of the bridge in question was alleged by Claimant to have been defective in that it became very slippery when wet and that, as a result of the slippery condition, the accident resulted in the death of the deceased.

The evidence shows that there had been numerous accidents under similar conditions and that the State was well aware of these conditions. The evidence also indicates that an investigation was made by the State of the material used in the bridge and, as a result of said investigation, the material was removed and replaced by another material. Claimant alleges that, according to State Police reports, there had been fourteen similar accidents in a relatively short period of time upon this particular bridge surface and, as a result of these accidents, the State should have known of the dangerous condition and should have taken precautions to alert and warn the traveling public of the extraordinarily dangerous condition of the bridge surface. The evidence further discloses that the only warning signs were the customary “Bridge Slippery When Wet.”

Claimant’s brief cites the case of Bovey v. State of Illinois, 22 Ill. Ct. Cl. 95. This case is one practically on point with the present case. In the Bovey case, the Court held there had been many complaints about the dangerous condition of an existing surface on a bridge and that the State had actual notice of the hazardous condition of the bridge floor, especially the hazard existing during the periods wherein the bridge was icy and slick. In this case, as in the present case, the surface that contributed to the accident in question was replaced.

In the Bovey case, the Court held that it was the duty of the State to warn the motoring public of the hazardous condition of the steel bridge which became icy and slick on occasions when the approaching highway and other bridges in the area did not become icy. The Court further held that a sign reading “Bridge Slippery When Wet — Frosty” was not sufficient warning when no outward evidence of frost or ice was apparent to the motoring public.

In the present case, the bridge became dangerous when slippery or wet, and yet despite numerous accidents when the bridge was slippery and wet, the State had done little to warn or protect the traveling public of the dangerous situation.

In 22 Ill. Ct. Cl. 126, this Court held that where an accident was caused because the warning devices were not operating at the time of the accident, the State was responsible for the damage that occurred as a result of the accident because of the failure to warn the traveling public of the dangerous condition.

It is the opinion of the Court that the State was negligent, that the negligence was the proximate cause of the accident, and that no conclusive proof was shown of any contributory negligence on the part of Claimant, who sustained the injuries and later died.

It is also the opinion of the Court that the limitation on the amount fixed by statute is $25,000.00, which was the maximum allowable at the time the accident occurred, and is the amount of recovery available to Claimant.

It is the further opinion of the Court that no wrongful death was proven herein.

Claimant, Virginia Meade, is hereby awarded the amount of $25,000.00, less $13,500.00 she has previously received on a covenant not to sue, or a net award in the amount of $11,500.00.


text:
    (No. 7077
    Premier Trucking Service Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 16, 1981.

    Brown, Kaplan & Shinitzky (Edwin J. Shinitzky, of counsel), for Claimant.
    Tyrone Fahner, Attorney General (Saul R. Wexler, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter arises in tort due to an accident on the State built and maintained bridge on Route 1-80 across the Rock River in Rock Island, Illinois on September 5, 1971.

This case was consolidated with the case of Virginia Meade v. State of Illinois, No. 7076. The opinion in that case sets forth the findings of the Court relative to the alleged negligence of the State in the proper care and maintenance of the structure where the accident occurred and the question of negligence on the part of the State in not providing adequate warning to the traveling public.

It is the opinion of this Court that the opinion rendered in Case No. 7076 adequately disposes of the facts, with the exception of the amount of the award.

The Court finds that the State was negligent in the construction of the bridge and in its failure to give adequate warning to the traveling public.

Claimant is hereby awarded the amount of $14,881.58, less a set-off of $2,500.00, or a net award in the amount of $12,381.58.,


text:
    (No. 73-CC-0451
    Michael J. Burns, Jr., Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 30, 1980.

    Livingstone, Mueller, Drake and Davlin (Robert E. Davlin, of counsel), for Claimant.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

Claimant Michael J. Burns, Jr. has brought suit against the State of Illinois for negligence in the ownership, maintenance, control and repair of the grandstand at the Illinois State Fairgrounds in Springfield, Illinois. Claimant must show that the State was negligent, that the negligence of the State proximately resulted in an injury to the Claimant, that the Claimant was in the exercise of due care at the time of the incident alleged and that the Claimant was injured and sustained damages.

On August 21, 1971, the Claimant, then 69 years of age, was at the Illinois State Fairgrounds with a friend attending the Lawrence Welk show. At approximately 10:30 p.m., when leaving the track area and passing in front of the grandstand, in a dimly lit walkway, the Claimant struck his right shin on a protruding piece of angle iron steel. The steel protruded a distance of 4 to 6 inches into the walkway area from a lower bleacher seat. At the time of the accident, the aisleway or walkway was crowded with patrons leaving the show. The blow to Claimant’s right leg caused him to fall. He was, however, able to continue walking and later noticed a large area o'f blood on his right leg. He was treated at St. John’s Hospital in Springfield, Illinois and incurred bills for treatment. Claimant testified that he later suffered an infected hematoma to his right leg which was drained by a doctor. His right shin and leg yet remains painful and he experiences pain as much as three days a week.

The Claimant proved by a preponderance of the evidence that he was in the exercise of due care while leaving the Illinois State Fairgrounds grandstands when he passed by a low bleacher seat and was injured when his right leg struck a protruding piece of metal. The evidence in this case shows that the area where the piece of metal protruded into the walkway was dimly lit. The evidence further showed that the control, maintenance and supervision of the grandstands at the State Fairground is the exclusive responsibility of the Respondent. The Respondent was negligent in permitting the angle iron steel protrusion from a lower bleacher seat in a dimly lit area where people were known to be walking and exiting the grandstand area.

Claimant testified that he was proceeding in a normal manner to exit the grandstand area and was not engaged in any conduct which would amount to a lack of due care on the part of Claimant.

The evidence showed that Claimant was injured seriously and that he incurred medical expense in connection with that injury in the amount of $250.65. The uncontradicted evidence shows that Claimant has had pain and discomfort ever since the accident, for which he is entitled to recover.

It is hereby ordered that Claimant be awarded the sum of $250.65 for his medical expenses incurred plus the sum of $3,000.00 for his pain and suffering and the other elements of damage for which he is entitled to be compensated in connection with his personal injury, for a total award of $3,250.65 (three thousand two hundred fifty dollars and sixty-five cents).


text:
    (No. 73-CC-0467
    National Bank of Bloomington, Admr. of the Estate of James Hinthorn, Deceased, and Dale J. Hinthorn, Claimants, v. The State of Illinois and The Department of Transportation, Respondents.

      Opinion filed July 28, 1980.

    David V. Dorris, for Claimants.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondents.
   Roe, C. J.

This cause is before the Court on the motion of the Claimants for judgment on the pleadings which was filed March 21,1980. No response to said motion was filed by the Respondent. A hearing was held on May 25, 1979 before Commissioner Richard Parsons. Following the hearing both parties were to file abstracts of the testimony, briefs, and arguments. Rule 18 of the Rules of the Court of Claims provides that these documents must be filed by the Claimant on or before sixty days after all evidence has been completed and filed by the Clerk of the Court, which was done. The Respondent has not filed anything since the hearing, the date for filing having long since come and gone. Although the Claimants had originally requested oral argument before the full Court, we now find that they have waived such request by their motion for judgment on the pleadings and letter acknowledging as much.

The claim is based on alleged negligence of the Department of Transportation and the State of Illinois. It has been brought by the administrator in behalf of the real parties in interest as well as in behalf of the estate of James Hinthorn, deceased, and the real parties in interest are as stated in the complaint to be: surviving father of decedent, Dale J. Hinthorn; surviving mother of decedent, Mary H. Hinthorn; surviving brother of decedent, Gary Hinthorn; surviving brother of decedent, Steven G. Hin- . thorn, and another surviving brother, Robert D. Hinthorn. Claimants’ decedent was killed following a head-on collision when he lost control of his automobile after encountering standing or running water on Illinois Route 9 east of Bloomington, Illinois. The accumulation of water was due to rainfall prior to the time of the collision. The decedent’s car went out of control upon entering the water and the collision took place with a truck in the opposite lane of the two lane highway.

After reviewing the complete record in this case we find the Claimants to have proved a prima facie case. The Assistant Attorney General informed the commissioner that he had no defense witnesses and preferred to keep his defense secret, but would set out his defense in his brief — which has not been filed.

We have consistently maintained that in cases such as the one at bar Claimant must show that the State was negligent, that such negligence was the proximate cause of the injury, and that Claimant (or Claimant’s decedent as in this case) was free from contributory negligence.

The duty of the State in such cases has also been stated many times in the past. Although the State is not an insurer of all accidents which occur on a highway, it does have an obligation to keep its roads in a reasonably safe condition and the duty to place adequate signs warning of unusual conditions which motorists may encounter.

The testimony of the Claimants’ witnesses at the hearing was as follows: Norman Hinkle, a ten year veteran of the Illinois State Police who had training and much experience in accident investigations, investigated the accident. He stated that it occurred on Illinois Route 9, approximately 12 miles east of Bloomington. He described the road as being a two lane highway running east and west with rough jagged shoulders and numerous potholes. Irma Lee Brown who lived on a nearby farm also described the pavement as having been in poor condition.

The testimony indicated that heavy rainfall had occurred. Officer Hinkle said it was a rainy day and that it had rained prior to the accident. This statement was corroborated by Ms. Brown. Earl Felts, the driver of the truck involved in the collision and an occurrence witness, said he had his windshield wipers on at the time of the accident.

It was also shown that there was water on the pavement at the time and place of the accident. Mr. Felts testified that he pulled his truck over to the side of the road to let oncoming traffic proceed more easily. He stated that the accumulation was eight to ten inches deep and covered approximately 75 to 100 feet of the highway at the time of the accident. Officer Hinkle stated that when he arrived at the scene he saw water on the pavement over six inches deep which covered both lanes for “quite a distance” but did not say exactly the distance covered.

Furthermore, the State had notice of the dangerous condition. Evidence indicated that it was a recurring condition and that it was the practice of the State to place temporary warning signs near the accident site whenever water accumulated. Officer Hinkle stated that he had patrolled this section of highway for a considerable period of time before the accident and had driven, over thé area following heavy rainfalls. He further testified to having seen standing water on the same site on prior occasions. On direct questioning he said the water was gone by the time the accident had been cleared away. On cross-examination he explained that water would accumulate while it was raining and after the rain slacked off it would drain away slowly, probably taking two hours to disappear. It was his practice in the past, he said, that when he saw standing water on the site he would call it in by radio and request that signs be posted.

Ms. Brown stated she had lived near the site for 28 years and had observed standing water at the same location on prior occasions. She explained that the water drained off slowly following rain. The normal amount of time it took to drain off varied depending on the amount of rain and saturation of the soil. In the past she said that temporary lighted signs were placed on the highway to warn motorists.

Mr. Felts testified on cross examination that he had travelled the highway in both directions for several years and had seen water running across the road at that one particular spot on prior occasions.

Mable Spaid who lived near the scene testified that she frequently drove past the accident site and had witnessed standing or running water there three or four times a year.

Dale and Mary Hinthorn, parents of the decedent, stated they travelled Route 9 a couple of times a week and had observed standing water at the scene at least three or four times a year.

We also find that Respondent failed to warn the traveling public of the dangerous condition in that it did not place any warning signs or devices on the highway to apprise the public of the dangerous condition. Officer Hinkle testified that he did not see any signs in the vicinity of the accident and did not believe there were any. Mr. Felts testified that he saw no warning sign whatsoever. Mable Spaid who lived a short distance from the road and travelled to Bloomington a few hours after the accident stated she did not remember seeing any such warning signs while en route. Mary Hinthorn and Dale Hinthorn, parents of decedent, testified to having travelled to the accident site upon being notified of the accident and stated they did not see any signs. Ms. Brown stated there were no signs placed near the site prior to the accident. Although we note that some of the testimony is inconclusive in that Mr. Felts was coming from a different direction than decedent, Ms. Spaid passed by the site after the accident, the Hinthorns were understandably upset, and this portion of Ms. Brown’s testimony was discredited on cross examination, we believe that, viewing the record as a whole, Claimant met its burden of proof on this issue. We also note that Respondent offered no witnesses to contradict any of the testimony.

Proximate cause of the accident was clearly established by the eyewitness testimony of Mr. Felts, the driver of the truck involved. He stated that when the decedent’s vehicle came in contact with the water, it planed, went off the pavement and into a ditch, came out of the ditch and crashed into his truck head on.

The next element of the Claimants’ case which must be shown is that decedent must not have been contributorily negligent in causing the injuries complained of. We find that Claimant has met its burden with respect to this requirement also. Officer Hinkle testified that the speed limit over that particular stretch of highway was 60 miles per hour and it was his opinion that 45 miles per hour would have been a safe driving speed under the conditions. Mr. Felts testified that the decedent was not traveling over 50 miles per hour. The evidence also indicated that the area around the accident site was hilly and there was a hill a short distance away from the water. Thus a person traveling in the direction of decedent would not be able to see the water until he was almost upon it. The testimony also indicated decedent was following another car and therefore his vision was further reduced. The record also indicates that decedent was unfamiliar with the road and had not travelled it frequently. Even if decedent had been more familiar with the road he would have been accustomed to seeing warning signs as that was shown to have been the normal situation when flooding occurred.

The facts in the case at bar are clearly distinguishable from those in Reidy v. State, No. 5602, filed September 11, 1975 and Brockman et al. v. State, No. 6005, filed September 11, 1975. In Reidy the Claimant sought damages for personal injuries sustained when he drove his car into an accumulation of water on a State highway and collided with another auto coming from the opposite direction. The distinguishing facts in Reidy are (1) that Claimant was traveling on the wrong side of the two lane road, (2) that there was no evidence of prior rainfall and no proof as to how the water accumulated, (3) that there was no actual notice of a dangerous condition to the State even though the highway was patrolled twice daily, (4) that there was no knowledge of prior flooding and the road was in good repair, and (5) Claimant should have been able to see far enough ahead to reduce speed accordingly. In Brockman, a car was also driven into a patch of water resulting in personal injury. Brockman differs from the instant case in that the State had no notice of the dangerous condition.

The last item which must be proven to sustain a claim based on negligence is damage. There was evidence of special damages, count two of the complaint: $2,015.10 for funeral bills and $2,491.75 for medical care totalling $4,506.85. On cross examination Mr. Hinthorn stated that a portion of that sum had been paid with insurance proceeds. It has long been the rule in this Court that the State is entitled to a setoff of the amount of insurance proceeds paid to Claimants, the reasoning being that there can be but one satisfaction of any claim. There is nothing in the record before us to allow us to make a determination as to the proper amount to be set off. We find that the Respondent failed to sustain its burden with respect to this issue and therefore we make no deduction in the amount of the award for that set off. However, we note that only $3,861.75 was claimed in count two and we will not award more than the amount claimed.

Other evidence with respect to damages in this case is sparse. In the Claimants’ brief they quote from a pattern jury instruction. Although we recognize that Claimants have cited it for authority as to the elements and presumptions that they argue should be taken into consideration, we reaffirm what Judge Burks said in Steen v. State (1973), 29 Ill. Ct. Cl. 111. The thrust of his opinion was stated thus:

We do not believe that the legislature intended this Court, in granting awards, to be guided by any speculation as to the amount a jury might award in a similar case, if the State were suable in the Circuit Court. Supra at 112.

There is a presumption of a pecuniary loss in favor of the lineal heirs of the deceased in a wrongful death accident arising from the relationship alone. This presumption is sufficient to sustain a verdict and judgment awarding substantial damages without proof of actual loss. However, where the next of kin are collaterals, their damages are only such as are proved. Hall v. Gillins, 13 Ill. 2d 26, 147 N.E.2d 352; Ferraro v. Augustine, 45 Ill. App. 2d 295, 196 N.E.2d 16; Burgett v. State, 30 Ill. Ct. Cl. 510; Jodlowski v. State, 26 Ill. Ct. Cl. 66.

The record in this case indicates that the decedent was beginning his first semester at Illinois State University. He had been an honor student in high school. Although he was not employed at the time of his death, he had previously worked during the summers at a grocery store. He also had worked on various farms in the area. Further, the Claimants established that James Hinthorn was in good health, close to his family, and had provided substantial help to his parents in the past.

This Court has frequently stated that there is no fixed rule of compensation in damages for personal injury or wrongful death. Steen, supra at 113; Pugh v. State, 29 Ill. Ct. Cl. 124,131. We feel that as to count one, an award of $30,000.00 is reasonable and just. As to count two, the claim by Dale Hinthorn for medical and funeral expenses of $3,861.75, we award the amount claimed. It should be noted that the notice of intent to commence suit did not list as interested parties the brothers of the decedent. The record contained no evidence as to any damages sustained by them as a result of the death of James Hinthorn and the law presumes none.

It is hereby ordered that the sum of $30,000.00 (thirty thousand dollars and no cents) be awarded to Dale J. Hinthorn and Mary H. Hinthorn. It is further ordered that the additional sum of $3,861.75 (three thousand eight hundred sixty-one dollars and seventy-five cents) be awarded to Dale J. Hinthorn.


text:
    (No. 74-CC-0642
    Jean V. Day, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 21, 1980.

    Bickly & Stern (Thomas Stern, of counsel), for Claimant.
    Dunn, Brady, Goebel, Ulbrich, Morel & Jacob (Kenneth G. Kombrink, of counsel), for Respondent.
   Holderman, J.

Claimant filed a claim for injuries suffered on or about 10:15 a.m. on April 19, 1972. Claimant, on the day in question, had an appointment at 10:30 a.m. with Dr. Charles Sommers, Director of Special Programs of the University Without Walls, on the premises of Chicago State University. Claimant was not a student at the University but was working full time at Harris Trust and Savings Bank.

Prior to her appointment with Dr. Sommers, Claimant allegedly entered “C” Building and either slipped or tripped in the hallway leading to the cafeteria area located in that building. She sustained injuries to her arm and leg.

After the fall in the hallway of the building, which was not lighted, Claimant went to the cafeteria area and purchased coffee. After having coffee, Claimant went to another building for her appointment with Dr. Sommers. She told the doctor she had pain in the ankle. Dr. Sommers suggested their meeting be postponed and had his secretary contact Nurse. Mae Glenn of the University Health Center. Upon being notified, Nurse Glenn called a security officer and she then proceeded directly to Dr. Sommers’ office. Upon arriving at the doctor’s office, Nurse Glenn checked Claimant’s condition, at which time Claimant told Nurse Glenn that she had been in the cafeteria area and had slipped on something that had been spilled. Nurse Glenn asked if it was possibly liquid and she said “yes.” This was recorded in Nurse Glenn’s report.

Shortly after Nurse Glenn arrived in Dr. Sommers’ office, the security officer, who had been contacted by her, arrived in the doctor’s office. Later that same day, Claimant was taken to the emergency room of St. Bernard’s Hospital where she was treated and admitted.

It is Claimant’s contention that the injury was caused by Respondent’s negligence in maintaining the hallway where the accident occurred which was located a short distance away from the cafeteria entrance. Claimant testified the hallway was dark and unlighted at the time of the accident.

It is Respondent’s contention that Claimant has to establish five elements before she can recover: (1) that the State had a duty to design, construct or maintain the property in question; (2) that if a duty existed, the State breached that duty, i.e. that the State created or allowed a dangerous or defective condition to exist; (3) that the State had actual or constructive notice of the dangerous or defective condition; (4) that the dangerous or defective condition was the proximate cause of Claimant’s injuries; and (5) that Claimant was free from contributory negligence.

Respondent contends that a review and analysis of the evidence presented by the parties at the hearing in this cause demonstrates that Claimant failed to meet her burden with respect to establishing the aforesaid essential elements of her tort claim. Respondent questions whether or not a duty was owed to Claimant at the time of the accident in question, and in particular, whether the Respondent was responsible for the design, construction and maintenance of the hallway where the accident occurred. It is also Respondent’s contention that Claimant presented no evidence whatsoever showing the hallway was either designed, constructed or maintained by Respondent, Board of Governors of State Colleges and Universities, State of Illinois. In fact, the only evidence presented relative to this issue was presented by Respondent when its witness, Louis Berry, testified specifically that the Board of Governors, State of Illinois, was merely a “lessee” of the building in which the accident occurred and that the owner-landlord was the Chicago Board of Education.

It is Respondent’s further contention that it had no responsibility for the maintenance or repair of said premises except for carpentry and minor electrical work. Respondent cites a case in 25-CCR-209, at page 213, which states that where a Claimant has failed to establish a duty owed by Respondent to Claimant, then Claimant’s claim must be denied.

Respondent further contends that if Respondent, Board of Governors, did owe a duty to Claimant, it would be a duty of care owed to a “licensee” rather than “invitee”. Respondent calls attention to the fact that Chicago State University was closed for spring break on the date of the accident and that the sole purpose of Claimant’s visit to the premises was to see Dr. Sommers to investigate the possibility of furthering her education. Respondent’s position is that it is not an insurer against all slips or falls which occur on State property, citing 22-CCR-29. Respondent sets. forth that it is Claimant’s burden to show by a preponderance of the evidence that a defective or dangerous condition existed, that there was an obvious or unordinary risk, and that Respondent either knew or should have known of the same, citing 22-CCR-29.

The evidence regarding the condition of the hallway in question is, to say the least, confusing. Claimant stated that she did not, on the day of the accident, make a thorough examination of the hallway, that she did not know what caused her fall, and that the floor was slippery because of liquid on the floor.

The evidence shows that the building where the accident took place was an old building and that repairs had been made at various times but, according to the security officer and janitor, there was nothing in the hallway at the time of the accident that would have contributed to Claimant’s fall.

The record is completely devoid of any evidence showing that Respondent had any knowledge, either constructive or otherwise, of a so-called dangerous condition in the hallway.

The security officer testified that after he was advised of the accident, he went to the area of “C” building and checked for anything that could have caused the accident. He stated there was nothing sticking out of the floor nor were there any holes in the floor.,

Approximately one month after the accident in question, Claimant returned to “C” Building and the area where she had fallen. Based upon this visit, Claimant stated she had concluded she tripped over a pipe sticking out of a hole in the floor and, therefore, had filed this suit.

This is in direct contradiction to the testimony of Louis Berry, Chicago State University Operations Engineer, who testified that on the 19th day of April, 1972, the hallway was in excellent condition and there were no objects sticking out of the floor. He further testified that he had occasion to go through the corridor of the building approximately ten times per day, that there were no holes in the floor, the floor was level, there was nothing unusual about it, and that no complaints had been brought to his attention concerning the condition of Building “C” prior to the accident in question.

Claimant having failed to meet the burden required by law, award is hereby denied.


author: Poch, J.

text:
    (No. 74-CC-0760
    Hakki Tamimie, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 31, 1979.

    James Drake, for Claimant.
    William J. Scott, Attorney General (Douglas G. Olson, Assistant Attorney General, of counsel), for Respondent.

       On September 10,1980, the Court denied the petition for rehearing.

   Poch, J.

Hakki Tamimie, Claimant, was a Research Scientist for the Department of Mental Health of Illinois at the Galesburg State Research Hospital. On November 16, 1969, the Claimant was notified of his impending termination to be effective January 1, 1970 and on January 1, 1970 the Claimant was laid off. Claimant returned to work on January 1, 1974, however, he was paid from current appropriation from July 1,1973 through December 31,1973.

The gross salary that Claimant would have earned from January 1, 1970 through June 30, 1973, less the vacation time previously paid, would amount to $49,861.36.

A judgment order issued by Judge Paul Verticchio of the Circuit Court of the Seventh Judicial Circuit, Sangamon County, Illinois, directed Albert Glass as Director of Personnel of the State of Illinois to reinstate Dr. Tamimie. This decision was appealed to the Appellate Court in Tamimie v. Glass (1973), 15 Ill. App. 3d 1, 303 N.E.2d 17, affirming Judge Verticchio’s Circuit Court opinion reinstating the Claimant.

In 1970, during the time of his lay-off, the Claimant obtained a real estate brokers license and an insurance salesman’s license, and for one five month period became the owner of a theatre in Kewanee, Illinois. He also applied for a position with three colleges during this period but was unable to receive a position with any of them.

The Claimant seeks recovery of gross wages lost from the period of January 1970, the time of the lay-off, through June 30, 1973, the time that the Appellate Court for the Fourth District ordered him returned to work, in the sum of $49,861.36. Income tax records of Dr. Tamimie reveal-income for the years 1970, 1971, 1972 and 1973 in the amount of $15,204.15. All of this income, except for $860.00 from unemployment compensation, was from insurance and real estate sales, in which the Claimant worked part time.

It is this Court’s opinion that merely applying for three full time positions during a four year period of unemployment does not constitute a reasonable effort to mitigate the loss. Also, with Claimant’s educational background in both insurance and real estate sales and brokerage that working only evenings and weekends during this period does not constitute reasonable effort to mitigate damages.

It is this Court’s position that in view of the fact that Claimant did not take adequate steps to reasonably mitigate his loss, he is entitled to no compensation. This claim is therefore denied.


text:
    (No. 75-CC-0746
    Jean Rosenbaum, Claimant, v. The State of Illinois, Respondent

      Opinion filed May 12, 1975.

      Order allowing motion to dismiss filed September 17, 1980.

      Order on denial of motion to transfer filed December 15, 1980.

    Jean Rosenbaum, pro se, for Claimant.
   Holderman, J.

Claimant filed her Complaint alleging that she suffered damages as the result of occurrences in the Domestic Relations Court, Juvenile Court and Chancery, and Divorce Court, all in Chicago, Illinois, and all a part of the Court system of the State of Illinois and for which the State is responsible.

The Complaint alleges that in 1969, as a result of domestic difficulties, Claimant went to Domestic Rela- " tions Court in an attempt to pursue her legislative right of support in accordance with her husband’s station-of-life, as a wife, and mother of minor children, as she did not want a divorce or separate maintenance.

Claimant alleges that various Assistant State’s Attorneys, on different occasions, refused to give her a Complaint to sign, stating that this was a Court for absolutely destitute wives only and verbally ordered her to go to work even though she had minor children.

Claimant further alleges that her husband had been in a condition of near-nervous breakdown for several years due to Urban Renewal and relocation in his business neighborhood, that he had left his wife and family, and had been behaving erratically for a long period of time.

She further states that she was shown Ill. Rev. Stat. 1969, ch. 68, par. 24, entitled “Neglect to Provide for Destitute Wife or Children,” as justification for the policy of the State’s Attorneys office.

Claimant further alleges that when she suggested that perhaps a private attorney could aid her, she was told if she could afford an attorney, she was not destitute enough to qualify for entry into Domestic Relations Court.

She further states that after she spent a great deal of time, to the neglect of her home and family, she finally did secure a Complaint to sign, at which time she attempted to strike the word “destitute” from the Complaint, but was not allowed to do so by her Court advisor who stated “it was only a formality and would not make any difference.”

She further alleges that the Court finally ordered her husband to pay her $25.00 weekly for approximately one year, and refused to renew the award at the end of that time, and also that the Court ordered her to “get a divorce or file for separate maintenance.”

Claimant further states that in January 1973, the Legislative Reference Bureau in Springfield, Illinois discovered the word “destitute” in the Complaint at Domestic Relations Court was totally illegal. She alleges that for 22 years, the Domestic Relations Court had forced middle-class women into divorce or legal separation illegally.

She further complains that the Juvenile Court of Chicago, Illinois, and particularly Judge David Schaffer, had acted erroneously in some decisions and she further alleges that Judge Schaffer was found hung by the neck, an apparent suicide, and that she was eventually informed that the Judge had been under psychiatric treatment for a long time and that, due to his emotional condition, he was not capable of carrying on his responsibilities as a Judge.

Claimant, at great length, further alleges other acts of the Court, to her detriment. She bases her claim upon Section 12 of the new 1970 Constitütion of the State of Illinois, which is as follows:

“RIGHT TO REMEDY AND JUSTICE. Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely and promptly.”

This Complaint is perhaps but a logical extension of the decision in the Molitor case and one which was foreseen by Judge Davis at the time the decision was rendered in that case. In his dissenting Opinion, he made the following statements:

“This decision cannot but be the occasion for releasing a flood of litigation and legislation in order to establish new boundaries in this area of novel liability. During this period, school districts will be harassed by doubts and difficulties which will impair their ability to conduct an efficient system of free schools.
(Tort) liability should not be imposed upon the State or its governmental agencies without exploring and considering the complicated aspects of its impact, and without authorizing a tax levy and providing a tax rate for such purpose.”

Respondent filed a Motion to Dismiss citing the fact that “all of said alleged acts were judicial in nature and hence privileged from liability.”

There are two cases that seem to deal with the situation at hand.

The case of James Lusietto, Administrator of the Estate of Shirley Lusietto, Deceased v. James Kingan (1969), 107 Ill. App. 2d 239, 246 N.E.2d 24 in which suit was brought by the administrator of the estate of the deceased against a State Highway Supervisor, alleged that the deceased met her death by reason of the failure of the supervisor of highways to have the road in proper condition, causing the fatal accident. The Court, in passing upon this case, laid down the rule that before recovery can be made when suit is brought against a State Employee in his official capacity, it must be shown there was a violation of some duty owed to an individual and unless such violation was shown, it cannot give rise to legal liability of an individual employee. The Court, in citing the case of Nagle v. Wakey, 161 Ill. 387, 393, 43 N.E. 1079, recognized the distinction between the duty which a Commissioner of Highways owes to an individual and that which he owes to the public in general, holding that for a violation of the former he may be sued by an individual but not so for a violation of a duty he owes to the public in general.

The distinction seems to arise as to whether the matter was ministerial or whether it was one that required the exercise of discretion and judgment. It is a well established principle of the common law that an immunity exists in favor of public officials when they are exercising their official discretion on matters which are discretionary in nature and not ministerial. People for Use of Munson v. Bartels, 138 Ill. 322, 27 N.E. 1091; McCormick v. Burt, 95 Ill. 263; Gilbert v. Bone, 64 Ill. 518; Kelly v. Ogilvie, 64 Ill. App. 2d 144, 212 N.E.2d 279. Quite apart from the doctrine of governmental immunity, the case law in this State has developed the doctrine of public officials immunity. This doctrine is distinguished from and founded on a different rationale from the principle of governmental immunity. See note 1966 Illinois Law Forum 981 at 995.

In the present case, the actions of the varioús Judges were discretionary and not strictly ministerial.

It is the law of this State that the principle of public officials immunity still exists. This was decided in the case of Kelly v. Ogilvie, 64 Ill. App. 2d 144, 212 N.E.2d 279. This case was decided almost six years after the Molitor case and the Court recognized that the principle of public officials immunity still existed and stated:

“This doctrine rests on the principle that the public decision maker, like the judge, ought to be shielded from personal liability or other factors extraneous to a judgment based on his best perception of public needs.”

It appears, therefore, that the doctrine of public immunity still exists as to acts of individuals where they have discretionary and ministerial duties to perform.

Respondent’s Motion to Dismiss is hereby granted and said cause is dismissed.

ORDER ALLOWING MOTION TO DISMISS

Holderman, J.

The original Complaint was filed January 8, 1975, and claimed mental, emotional, financial and physical injury over a period of years due to gross negligence and administration of the Courts of Illinois and their related departments. She claimed her children likewise “have been sorely affected” by the negligence of the State.

The claim was based on alleged “occurrences in the Domestic Relations Court, Juvenile Court and Chancery, Divorce Court, all in Chicago, Illinois.” The so-called occurrences commenced in 1969 in the Domestic Relations Court where she sought her right of support (not a divorce). The legal sources she consulted with showed her Ill. Rev. Stat., ch. 68, par. 24, entitled “Neglect to Provide for Destitute Wife or Children” and based thereon, she claims she did not qualify as a “destitute” wife. She did get legal relief for a time but this terminated when she was told that Domestic Relations Court was for the destitute only.

In January 1973, it was discovered that the word “destitute” was illegal and in 1951 was removed by the legislature, but through inadvertence the word continued to appear in the title of the Statute. Claimant alleges this was gross negligence on the part of the Domestic Relations Court to resort to destitute cases when the word was removed from the title but inadvertently printed in by the printer.

Respondent filed a motion to dismiss on February 4, 1975, based primarily on the theory that the alleged acts complained of were privileged from liability by the Courts of Illinois. On May 12, 1975, we allowed the Respondent’s Motion to Dismiss stating therein that “It is a well established principle of the common law that an immunity exists in favor of public officials when they are exercising their official discretion on matters which are discretionary in nature and not ministerial.” (Citations given.)

Thereafter Claimant stated that it had requested a general continuance until a final hearing was adjudicated in a case pending before the Appellate Court. Thereafter a motion was filed by Claimant to vacate the previous order of dismissal which motion was objected to by the State on the grounds that the alleged acts complained of were judicial in nature and immune from liability.

On June 14, 1976, we continued the case for 15 days after disposition of the case in the Appellate Court of Illinois. We later, on August 19,1976, continued this case until the Supreme Court passed on the pending litigation.

This case was dismissed again by this Court on September 7, 1978, and complainant now asks us to set this aside.

We have dismissed this suit twice on motion. Claimant feels aggrieved that the dismissal was without a hearing. No hearing on a motion to dismiss is an absolute right.

It may well be that Claimant feels she has not received adequate treatment of her complaint but our view of the file fails to find any basis where this Court has jurisdiction to alleviate her alleged mistreatment in processing her grievance. There were no citations to support such a contention, the occurrences were of a nature as to be barred by the Statutes of Limitations, the theory of immunity dilutes her. claim, allegations of damages were loose and mostly without recognition in law.

This case is dismissed on motion of Respondent.

ORDER ON DENIAL OF MOTION TO TRANSFER

Roe, C. J.

This cause coming on to be heard on a notice of appeal, a request that additional facts and issues be allowed into the record for purposes of appeal, a motion to transfer case to the Circuit Court of Cook County, all filed by Claimant, objections to the motion to transfer which were filed by Respondent, Claimant’s reply thereto, and Respondent’s motion to strike Claimant’s reply; it appearing that due notice has been given; and the Court being fully advised.

As was well pointed out in Respondent’s objections, the Court of Claims is wholly lacking of authority to grant any of the various prayers for relief requested by Claimant.

It is hereby ordered that this matter be, and hereby is, closed.


text:
    (No. 75-CC-1293
    Roberta Sorkin, Claimant, v. Board of Governors of State Colleges and Universities, Respondent.

      Opinion filed December 9, 1980.

    Edward J. Vrdolyak, Ltd. (William J. McCann, of counsel), for Claimant.

      Dunn, Brady, Goebel, Ulbrich, Morel & Jacob (Kenneth G. Kombrink, of counsel), for Respondent.
   Roe, C. J.

This claim arises out of an incident which occurred on June 29, 1973 on the premises of Northeastern Illinois University which is located at St. Louis and Bryn Mawr Avenues, Chicago, Illinois. On said day the Claimant, Roberta Sorkin, arrived at the campus at approximately 4:30 p.m. alone with the intention of obtaining an application for summer classes from the Administration Building. At approximately 5:00 p.m. Claimant approached two concrete steps between a classroom building and the Commuter Center. The steps were constructed such that the top step of the two overhung the lower one, i.e. a gap existed between the top and bottom step. As Claimant ascended the steps her right foot caught the edge of the overhang which caused her to trip and break the fifth metatarsal bone in her right foot.

In her complaint Claimant charged Respondent with the duty to exercise ordinary care in the maintenance of the premises to avoid injuries to persons lawfully on the premises and with the breach of that duty in one or more of the following ways: (a) allowing the stairway to deteriorate, (b) maintaining a gap in said stairway which Respondent knew, or should have known, that persons going up or down said stairs could catch their feet thereon and trip, (c) failing to repair said stairway when Respondent knew or should have known of its dangerous condition, and (d) otherwise carelessly and negligently operating said premises.

After carefully examining all the testimony and other evidence put forth in this case we find that the Respondent breached no duty owed to Claimant. Furthermore, the evidence tended to indicate that the accident, if caused by the negligence of anybody, was caused by Claimant’s own negligence.

As to Claimant’s first and third allegation of negligence we find that the steps in question had not deteriorated or otherwise fallen into a state of disrepair. This fact is quite obvious from Claimant’s exhibits numbers 2, 4, 5, 6. Said exhibits are pictures of the steps which Claimant testified accurately portrayed their condition at the time of the accident. They clearly show the steps to have been in good condition.

As to the second and fourth allegation of negligence we do not feel that Respondent acted or failed to act other than with ordinary care in the maintenance of the steps. By Claimant’s own admission the gap referred to was in fact a characteristic of the design of the particular steps. The pictures of the steps also support this finding. Furthermore we take judicial notice of the fact that a large number of stairways in both the public and private sector are similarly constructed. Many stairways do not have any vertical support at all except for at the edges. To hold the State liable for the accident here would, in effect, be making the State an insurer of the public which we have consistently refused to do.

Furthermore the evidence showed that the bottom step was between twelve and fifteen inches from front to back. In our opinion this is sufficient space for the secure placing of one’s foot in the act of ascending the steps without having to insert the foot beneath the overhang of the top step. We find Respondent acted with ordinary care in all respects.

Although the findings have sufficed to deny the claim, there is also evidence which tends to show that the Claimant was a cause of her own accident. The accident took place during daylight hours on a sunny day. There was no evidence of any foreign substance, sticky or slippery. Claimant was familiar with the condition of the steps. She testified to having observed the steps from a distance of forty feet immediately prior to the accident and kept on walking, looking straight ahead, and did not look at them again until she was directly on top of them. A witness, Claimant’s sister, testified that Claimant was looking straight ahead at the time she fell. There was also testimony that Claimant had been aware of the steps for some time prior to the accident. Claimant had graduated from the university and had attended classes there for eight or nine months. She testified that three months prior to the accident she had observed the gap while sitting with classmates in the area of the steps.

Because of failure of Claimant to prove breach of duty it is hereby ordered that this claim be, and hereby is denied.


text:
    (No. 76-CC-0140
    Edward Lee Passow, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 11, 1981.

    Conklin and Adler (Franklin Nachman, of counsel), for Claimant.
    William J. Scott, Attorney General (John Fanone, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This is a cause of action brought pursuant to section 8, paragraph (d) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.8(d)), for personal injuries sustained by Claimant as a result of a motorcycle accident along a State-maintained road which occurred on August 11, 1974.

The Claimant, Edward Lee Passow, testified that on August 11, 1974, at about 7:00 p.m., he was driving his motorcycle south on 1st Avenue in the Village of Lyons, Illinois. He stated that as he was approaching 47th Street he was in the outer lane when an automobile in the left cut over in front of him causing him to veer to the right, and in so doing, he attempted to leave 1st Avenue and enter its exit to 47th Street. In so doing he said he crossed over the white line adjacent to the curb on said exit where he hit a sewer with a defective cover which caused him to be upended. He further explained that he and the motorcycle proceeded to be propelled onto the grass adjacent to said exit, that he and the motorcycle became separated, and that he slid along the ground until he hit the fence adjoining the exit road. He also stated that he did not see the open or defective catch basin or manhole until five to ten feet before he struck it and that there were no signs or barricades or warnings in front of it.

Trent Engleston, brother-in-law of the Claimant, was called as a witness on behalf of Claimant. He testified that he was riding in an automobile following Claimant and that, a car veering from the left lane to the right lane caused Claimant to strike an open manhole. He said he examined the catch basin and found it to be open.

The Respondent presented the testimony of two officers of the Lyons Police Department, Kenneth Couch and Stanley Augustyniak, who testified that they responded to the accident call and observed the scene. Officer Couch testified Claimant was lying five to ten feet from the curb and about ten or fifteen feet from the motorcycle. He stated he observed the motorcycle skid marks which showed that the motorcycle had skidded 170 feet from the point where it left the road. He further testified that the only manhole in this area was a little further south of the bike. His testimony was that the bike had not yet proceeded far enough to reach the manhole. He traced the skid marks to where the bike left the road and stated that there was no manhole or sewer of any kind at that location. The nearest manhole was 20 feet further south from where Claimant finally landed and about 190 feet south of where he left the road. He also noted that the manhole in the area had no irregularities.

Officer Augustyniak testified that upon following the skid marks back from where the claimant landed, he saw black tire marks on the curb. He further testified that there was no manhole where the bike left the road and the only manhole he noticed was south of the Claimant’s resting place. His testimony also was that Claimant had not yet reached the manhole.

The Respondent also called Valerian Cijunelis, an employee of the Department of Transportation, as a witness. In August of 1974 he received a notice of Claimant’s accident. He investigated the scene and the manholes in the area and found them to be structurally sound. He observed the manhole on the 47th Street exit and saw nothing wrong with it.

From the testimony it is clear that this claim turns on issues of fact and that the testimony is in direct conflict. Based upon careful examination of the entire record in this cause we are of the opinion that Claimant did not hit an open manhole. The evidence indicates that he sustained his injuries from hitting a curb. Furthermore there was convincing evidence that the manhole Claimant alleges he hit was structurally sound. We hold that Claimant has failed to prove by the preponderance of the evidence that the Respondent was negligent.

It is hereby ordered that this claim be, and hereby is, denied.


text:
    (No. 76-CC-0296
    Betty J. Baggett, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 2, 1980.

    John Olivero (William Lasorella, of counsel), for Claimant.
    Clausen, Miller, Gorman, Caffrey & Witous (Richard C. Howser, of counsel), for Respondent.
   Poch, J.

Claimant seeks recovery for damages arising out of an accident on September 4, 1974.

The instant claim is based on three counts; the first of which is for personal injuries allegedly sustained by Betty J. Baggett; Count II is brought by said Betty J. Baggett on behalf of Patty S. Baggett, a minor; and Count III brought by said Betty J. Baggett on behalf of Tammy R. Baggett, a minor, also seeking recovery for injuries allegedly sustained by said minors.

The Claimant alleges that the Respondent was negligent in failing to maintain a State Highway known as U.S. Route 6, at a point approximately six miles west of Princeton, Illinois.

The incident complained of occurred at approximately 5:00 p.m. on September 4, 1974, while Claimant was operating a vehicle traveling in a westerly direction on said U.S. Route 6, a 2-lane highway, at a speed between 45 and 50 miles per hour. At or near the intersection of said U.S. Route 6 with Pilgrim Park Road, Claimant testified that the vehicle she was operating struck a hole in the road at a point where the surface of the paved highway appeared to taper into an older section of pavement. Claimant testified that as she hit the hole she lost control of the vehicle and went off to the right into the shoulder, which she testified had holes and ruts, thereby losing control of the vehicle and struck a . culvert, causing damage to the vehicle and injuries to her person. Her two minor daughters, Tammy R. Baggett and Patty S. Baggett, were passengers in the vehicle, one sitting beside her in the front seat and one sitting in the back seat of the vehicle. Claimant further testified that the section of the highway at the point of narrowing was at least one foot narrower than the width of the portion to the east upon which she had been traveling and that said narrowing, together with the hole which was located on the pavement, caused her to lose control of the vehicle.

It must be noted that Claimant had traveled upon this road a number of times previous to the incident, and that immediately prior to the accident the weather was clear and that she could see the roadway ahead of her as she passed the Pilgrim Park Road. She also stated that the area of the accident was flat, with no obstructions whatsoever, and that the two portions of the roadway in question had distinctly different colors. Claimant further testified that it was her habit to drive next to the outside of the road.

The Court has consistently held that the State of Illinois is chargeable with only maintaining its roads in a reasonably safe condition for the purpose for which they are intended, and it follows therefore the Claimant must, in order to prevail, prove by a preponderance of the evidence that the Respondent breached its duty and that the breach proximately caused the injuries to her. This, the Claimant has failed to do.

The Claimant has the further burden of proving freedom from contributory negligence and based upon the testimony of witnesses called by the Claimant as well as the photographs introduced, the Court is of the opinion the Claimant did, in the operation of her vehicle, contribute to the accident.

Recovery is therefore denied.


text:
    (No. 76-CC-0604
    Klug Currency Exchange, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed July 7, 1980.

    Samuel H. Feldman, for Claimant.
    William J. Scott, Attorney General, for Respondent.
   Poch, J.

This cause coming on to be heard upon the motion of Respondent for summary judgment, due notice having been given to the Claimant, and the Court being fully advised in the premises;

Finds:

1. That Claimant brought this claim for a lost warrant issued on January 18, 1974, in the amount of $196.00 payable to Maria Meza.

2. That said warrant was negotiated by Claimant over one year after it was issued.

3. That the warrant issued was not properly negotiated in that the said warrant was endorsed to Claimant after the time limit within the Comptroller’s Act had expired. That the Claimant does not, therefore, have a cause of action against the State as a matter of law. Ill. Rev. Stat. 1979, ch. 15, pars. 210.07, 210.10.

It is therefore ordered that the motion of Respondent be, and the same is hereby granted, and judgment is hereby entered in favor of Respondent.


text:
    (No. 76-CC-0807
    Tommie Lee Rogers, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 28, 1980.

    Rehearing denied November 19, 1980.

    Singer, Snyder, Tieman, Aeschliman & Jaquays, Ltd. (William C. Washburn, Jr., of counsel), for Claimant.
    William J. Scott, Attorney General (Richard J. Grossman and Glen P. Larner, Assistant Attorneys General, of counsel), for Respondent.
   Poch, J.

This is a claim for personal injuries sustained by Tommie Lee Rogers, Claimant, while using a band saw in the butcher shop at Stateville Correctional Center.

On January 10, 1975, Claimant, 32 years old, was an inmate at the Stateville Correctional Center, Joliet, Illinois, assigned to work in the institution butcher shop. During the course of using a band saw to cut a pork loin into pork steaks, Claimant cut his right index finger off to the knuckle, and cut his middle finger so that he has lost its use. The testimony bearing on the issues of negligence and contributory negligence is contradictory.

Claimant’s testimony can be summarized as follows: He had worked in the butcher shop for some time but had never been assigned to the band saw before the day in question. He was ordered to cut pork loins into pork chops. At the time of the occurrence he was taking valium three times a day as prescribed by the institution physician. He told the officer in charge of the butcher shop, one Officer Warren, that because of the effects of the valium he should not .be made to use the band saw. However, the officer ordered him to cut the pork chops. He had received no instructions as to how to operate the machine and the machine was totally without safety equipment.

James A. Warren, relief supervisor in the food department, testified as follows: Rogers had worked in the butcher shop for over a year. The butcher shop had two band saws, and he had seen Rogers operate each of them. On the morning of the accident he told Claimant to slow down and be more careful in cutting the meat. Claimant replied that he had been operating a saw longer than Warren knew anything about cutting meat. This testimony is totally in conflict with Claimant’s. Rogers did not tell Warren that he was taking valium and should not work on the saw. Claimant did not object to using the saw. Warren, who was a relief supervisor, did not have to assign Rogers to the saw because that was Rogers’ job. He did not know Rogers was on valium.

Dr. Julius Venckus, the institution physician, testified that valium is a tranquilizer and has a sedative effect on some persons. On June 14, 1974, he notified the senior captain that Claimant was on sodium dilantin and valium and should not be given hazardous assignments. Documents in the record also establish that Claimant asked to be re-assigned to the butcher shop from which he had been removed following Dr. Venckus’ notification to prison authorities that Claimant should not be assigned hazardous work.

The saw had no safety device specifically designed to keep an operator’s hand away from the blade, although the table portion of the machine on which the meat was placed was moveable, so that the meat could be held in place while the table moved back and forth. Rogers chose to feed the meat directly into the saw.

Officer Warren filed an accident report, and in response to the question, “What do you suggest to prevent recurrences?”, wrote: “By use of steel gloves and steel guard.”

Claimant defines the issues in his brief as follows:

“The issue is whether the respondent was negligent in ignoring express notice given to the respondent that the claimant was unable to operate the meat cutting machine because of his medical condition, and whether the claimant was negligent in failing to provide safe working conditions for the claimant.”

Officer Warren denied that he had express notice that Claimant was on valium and was medically unfit to operate the saw.

The Court cannot feel justified in adopting Claimant’s testimony over that of Officer Warren.

The result is that Claimant has failed to prove this issue by the preponderance of the evidence. Furthermore, Claimant has not proved by the preponderance of the evidence that the saw was so dangerous that it could be said that Respondent failed to provide Claimant with safe working conditions.

Finally, Claimant failed to prove by the preponderance of the evidence that he was in the exercise of due care for his own safety.

The claim is, therefore, denied.


text:
    (No. 76-CC-0900
    Robert L. Meade, Claimant, v. Department of Personnel, State of Illinois, Department of Labor, State of Illinois, and The State of Illinois, Respondents.

      Opinion filed February 13, 1981.

    Cornfield & Feldman (Gilbert Cornfield, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondents.
   Holderman, J.

This is a claim for pay allegedly lost by Claimant, a State employee, by reason of failure to receive a “superior performance increase” in pay.

A “superior performance increase” (referred to herein as SPI) is a pay increase given to an employee on the basis of recommendation of each level of his supervisors. No employee may obtain an SPI within 18 months of a previous SPI. The granting of an SPI is within the sole judgment of the manager of a State government office and the superiors of that manager. Only a limited amount of SPI are available to each State office for each fiscal year and recommendations for SPI are submitted on a staggered basis throughout the fiscal year.

Claimant has been an employee of the Department of Labor, Bureau of Employment Security, since 1961, working out of the Rockford Employment Service Office. In April 1972, Claimant received an SPI and became eligible for receipt of another SPI in October 1973. The SPI was valued at $56.00 per month. Claimant was not granted an SPI until May 1975 and claims that the delay in such receipt of the $56.00 per month increase was a result of unlawful discrimination against him. Claimant further alleges that because of the delay and the required 18-month interval between SPI, he lost further money by reason of his being ineligible for an additional SPI for the period of delay.

The Rockford office of the Bureau of Employment Security was allocated six SPI for the fiscal year 1974. In September 1973, Claimant’s superior, Nicholas Deutsch, completed his evaluation of Claimant by rating Claimant “superior.” Claimant testified that in September 1973 he talked to Mr. Deutsch and was assured by him that Mr. Deutsch was going to recommend Claimant for an SPI. In fact, Claimant testified, he was shown a draft of the recommendation for SPI by Mr. Deutsch.

Claimant testified further that in October 1973, Deutsch admitted to Claimant that he had not sent in the recommendation for SPI in September because there had been newspaper and television publicity in the Rockford area concerning a grievance that Claimant had filed as a union representative complaining of smoking in the office and lack of proper ventilation in the office. According to Claimant, Deutsch felt that the Regional Manager, Betty Sharpe, would turn down the recommendation for the SPI because of the media publicity surrounding the grievance and therefore did not forward the recommendation in September 1973.

Deutsch testified that the supervisor, Betty Sharpe, had, in 1972, expressed the fact that she was “fed up” with grievances previously brought by Claimant as a union steward and that it was possible that he, Deutsch, had told Claimant that if he had submitted the SPI it probably would not have been approved by Betty Sharpe. But Deutsch denied that he failed to submit the recommendation for the SPI because of the previous grievances instituted by Claimant, but rather that Claimant was not Number 1 on his list of six for receiving SPI, but was Number 6 in line and, therefore, the recommendation for SPI for Claimant was submitted for the last quarter of fiscal year 1974.

Claimant filed a grievance concerning the delayed SPI. An advisory panel was formed in accordance with the Department of Personnel rules, which panel found that a factor in the delay in awarding Claimant his SPI was Claimant’s role as a union representative. The panel’s findings, however, were overruled by the Director of Personnel.

It is clear and undisputed that no State employee may be discriminated against by virtue of union participation or by virtue of having exercised his rights by filing grievances.

In order to prove his claim, Claimant has the burden of proving by a preponderance of the evidence that:

1. He was the subject of discrimination by virtue of his union activity and grievance committee; and

2. That but for the discrimination, he would have received the SPI in September 1973.

Claimant, prior to filing his claim in the Court of Claims, filed suit in the Circuit Court of Sangamon County, Illinois, claiming his rights had been violated. This suit was dismissed by the Circuit Court.

It is Claimant’s contention that because he had filed a grievance relative to smoking in the office and had caused considerable publicity, he had angered the individuals who had charge of the promotions and he was, therefore, passed over. The record does not disclose that said grievance had anything to do with Claimant’s failure to secure the SPI.

No employee has a vested right to an SPI. Merely because the Claimant was eligible for an SPI did not mean that such an action was mandated. The State office in question was allocated six SPI for the entire fiscal year, which SPI were to be submitted on a staggered basis during the year. The question of which of the six employees were most deserving of an SPI and therefore which names were to be submitted first was purely discretionary with Claimant’s supervisor. Claimant’s total lack of proof that Claimant was clearly more deserving than the other five who were recommended is, in the opinion of the Court, fatal to Claimant’s claim. Claimant could not have been harmed by any discrimination against him if, in fact, the other employees were more entitled than he was to an earlier SPI. There was absolutely no evidence in the record of the qualifications of the other five employees as compared to Claimant’s qualifications and there was, therefore, no basis to conclude that any discrimination against Claimant resulted in any damages to him.

Claimant’s claim is denied.