text:
    (No. 75-CC-0050
    Ellen Heimann, Claimant, v. State of Illinois, Respondent.

      Opinion filed December 19, 1977.

    David Shultz and Eugene Propp, for Claimant.
    William J. Scott, Attorney General; William Karaganis, Assistant Attorney General, for Respondent.
   Polos, C.J.

Claimant, Ellen Heimann, has brought this action to recover for the fracture of a bone in her right foot, suffered on July 14,1973, at the Pere Marquette Lodge, in Grafton, Illinois. Respondent owned and maintained the lodge, and Claimant alleges that her injury was proximately caused by the failure of the Respondent to properly maintain a pedestrian walkway on the premises. Specifically, Claimant contends that Respondent permitted a tunnel-like depression to exist across the entire width of the walkway, and failed to warn of its existence or to properly illuminate the area.

Claimant was the sole witness to testify at the hearing herein, and the parties waived the filing of briefs.

Claimant testified that on July 14, 1973, she was visiting the Pere Marquette Lodge. At about 9:30 p.m., she was walking along an asphalt path from the lodge to the parking lot with her husband when she stepped into a depression in the walkway. She said her foot went out from under her and she fell, breaking a bone in her right foot.

Claimant said that there was no lighting to illuminate the walkway. She described the depression as “perhaps two inches deep, and maybe six inches wide, and then the width of the whole walk ...” Claimant introduced into evidence a motion picture film of the walkway, showing that there was a depression, having the approximate dimensions described by Claimant.

This Court has held that the State of Illinois is not an insurer of safety of persons who visit its parks and recreation areas.

Rather, visitors to State parks are invitees to whom the State owes a duty of reasonable care in maintaining the premises. Damermuth v. State, 25 Ill.Ct.Cl. 353, 356; Kamin v. State, 21 Ill.Ct.Cl. 467.

To recover on her claim, Claimant bears the burden of establishing, by a preponderance of the evidence, that Respondent breached its duty of reasonable care, that she was free of contributory negligence, and that the negligence of Respondent proximately caused her injury.

The Court finds that Claimant has failed to establish that Respondent was negligent in maintaining the walkway on which she had her accident. Claimant offered no evidence to show that Respondent had actual notice of the defect in the walkway. Nor did Claimant offer any evidence from which the Court could conclude that the State had constructive notice of its existence. Respondent may be charged with constructive notice of a dangerous condition when, from all the circumstances in a case, it is determined that Respondent should have been aware of the existence of the condition in the exercise of reasonable care. Joyner v. State, 22 Ill.Ct.Cl. 213, 217 (1955). Claimant has offered no evidence of the length of time which the defect in the walk existed, and from examination of the pictures of the walkway the Court finds that the defect was not of so obvious a character as to put the State on notice of its existence.

There being no proof that Respondent was negligent in maintaining the walkway, this claim is hereby denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    (No. 75-CC-0234
    Ellard Lee Douglas and Judith Grace Douglas, Claimants, v. Department of Conservation of the State of Illinois, , Respondent.

      Order filed October 21, 1977.

   Per Curiam.

This matter comes before the Court, by Claimant, on a motion to reconsider, Claimants’ motion in opposition to Respondent’s motion to reconsider, and Respondent’s reply to Claimants’ motion in opposition to Respondent’s motion to reconsider.

In the original opinion in this case, the Court took the position that it was a breach of contract by the Respondent that caused Claimants to incur the expenses for which they now seek recovery. Douglas and Douglas v. State, 31 Ill.Ct.Cl. 499.

After reviewing all the motions before the Court, the Court finds that the argument that attorney’s fees are not recoverable is untenable. The attorney’s fees expended by Claimants were incurred in litigation with a third party. The litigation with the third párty was brought on as a consequence of the failure of the Respondent to perform as agreed under its contract with Claimants.

Respondent cites People v. Redfern, 104 Ill. App. 2d 132, 243 NE2d 252. In that case, however, the attorney’s fees were incurred in the litigation with the defendant, and the Court held that only when there is statutory authority for assessing attorney’s fees are they to be allowed. See, for example, Sec. 41 of the “Civil Practice Act” Ill. Rev. Stat., Ch. 110, Sec. 41, where it provides that reasonable attorney’s fees are allowed where untrue allegation and denials are made without reasonable cause.

Respondent also cites O’Hare v. Moniak 110 Ill. App. 2d 327, 249 NE2d 178, which is also to the effect that a statute must authorize the assessment of attorney’s fees.

However, in the case before this Court, attorney’s fees in the separate litigation with a third party were a result of the Respondent’s breach of contract and, hence, are in the nature of an expense incurred as a result of the breach.

In 15 IL&P, Damages - Sec. 62, p. 397 and 398, it is stated:

where the natural and proximate consequence of a wrongful act has been to involve the plaintiff in litigation with others, there may be, as a general rule, a recovery in damages against the author of such act of the reasonable expenses incurred in such litigation together with compensation for attorneys fees, and such costs as may have been awarded against the plaintiff.” Citing Standard Oil Co. of Ind. v. Daniel, 333 Ill. App. 338, 77 NE2d 526; Freed v. The Travelers, 300 F 2d 395.

Motion to reconsider heretofore filed by the Respondent is denied and the orgiinal opinion is confirmed.


author: Polos, C.J.

text:
    (No. 75-CC-0358
    Illini Hospital, Claimant, v. State of Illinois, Respondent.

      Order filed September 29, 1977.

   Polos, C.J.

This cause is before the Court for reconsideration of an order of September 2, 1975, in which we denied Respondent’s motion to dismiss.

Claimant seeks to recover the sum of $832.99 for hospital and medical services rendered to one Lois G. Taylor. Claimant has alleged that Mrs. Taylor was a “disabled person” within the meaning of Section 3-1 of the Public Aid Code, Ill. Rev. Stat., Ch. 23, §3-1, and that the Illinois Department of Public Aid is therefore liable for the medical services rendered to her by Claimant.

Lois G. Taylor was not a public aid recipient at the time that services were rendered by Claimant, there having been a determination of non-disability by the Illinois Department of Public Aid. Respondent, in moving to dismiss, contends that the finding of the Illinois Department of Public Aid is binding upon Claimant, and that this Court is without jurisdiction to hear a challenge to that finding.

In deciding this issue, the Court is called upon to construe a number of provisions of the Public Aid Code, Ill. Rev. Stat., Ch. 23, § 1, et seq. Claimant relies upon Section 11-13 of the Code, Ill. Rev. Stat., Ch. 23, § 11-13, which provides in pertinent part:

“Vendors seeking to enforce obligations of a government unit of the Illinois Department for goods and services (1) furnished to or in behalf of recipients and (2) subject to a vendor payment as defined in Section 2-5, shall commence their actions in the appropriate Circuit Court or Court of Claims ...”

Chapter 23, Sec. 2-5 in turn defines “vendor payment” as “a payment made directly to the person, firm, corporation, association, agency, institution, or other legal entity supplying goods and services to a recipient.” “Recipient” is defined by Ill. Rev. Stat., Ch. 23, § 2-9 as “a person who is receiving financial aid under any of the provisions of this Code.”

Claimant contends that this statute gives a vendor of services a direct remedy by which it can sue the State to recover for services rendered to one allegedly eligible for Public Aid benefits. Claimant contends that determination that the person for whom services were rendered was ineligible for benefits, is not binding on a vendor of services.

Respondent, on the other hand, points to Section 11-8 of the Public Aid Code, Ill. Rev. Stat., Ch. 23, § 11-8, which provides that, “Applicants or recipients of aid may, at any time within sixty days... appeal a decision denying or terminating aid...” Respondent also relies upon Section 11-8.7 of the Code, Ill. Rev. Stat., Ch. 23, § 11-8.7, which states:

“The provisions of the ‘Administrative Review Act’, approved May 8, 1945, as amended, and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of the Illinois Department on appeals by applicants or recipients...”

Respondent therefore contends that only an applicant or recipient of Public Aid can challenge a decision denying or terminating aid, and then only under the “Administrative Review Act.”

This Court previously held, in Franciscan Sisters v. State, 31 Ill. Ct. Cl. 58, that a vendor of services could bring an action in the Court of Claims to recover for services rendered to a Public Aid recipient. In that action, one Charles Hameretnck was a patient at the Claimant hospital from September, 1969, to February, 1970. He had been declared a Public Aid recipient by the Department of Public Aid, retroactive to October 1, 1969, and the Claimant hospital brought suit to recover for services rendered to him as a recipient.

Here we are presented a substantially different situation, for Lois G. Taylor has never been declared a recipient of Public Aid.

Section 11-13 of the Public Aid Code gives vendors the right to enforce obligations of a governmental unit for goods and services furnished “to or in behalf of recipiente”(emphasis supplied). “Recipients” is in turn defined by Section 2-9 of the Code as “a person who is receiving financial aid under any provision of this Code.”

We think this language evidences the legislature’s intention that a vendor be permitted to maintain an action under Section 11-13 of the Code, only if he has furnished goods and services to or in behalf of one who is already a “recipient” i.e. one who has already been declared eligible for benefits by the Department of Public Aid. Thus a vendor who furnishes goods and services to one who has been determined to be ineligible by the Department of Public Aid, may not bring an action in the Court of Claims to litigate the issue of whether the person for whom the services were rendered was entitled to Public Aid benefits.

This Court’s order of September 2, 1975, denying Respondent’s motion to dismiss, is accordingly vacated. For the above and foregoing reasons, the Respondent’s motion to dismiss this cause is hereby granted.


author: Holderman, J.

text:
    (No. 75-CC-0977
    Felix J. De Stafano, Claimant, v. State of Illinois, Respondent.

      Opinion filed April 26, 1978.

    Erbacci, Syracuse & Cerone, by Anthony Erracci, Attorneys for Claimant.
    William J. Scott, Attorney General; James Stola, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant brings this action under his amended complaint for wages alleged to be due him for a 30 day period starting January 15,1973, and ending February 15,1973.

The facts are not controverted. Claimant was appointed to a position as a factory inspector with the Department of Labor, Division of Safety Inspections & Education on July 16,1972. His pay scale was $668.00 per month and he was paid up to January 15, 1973.

In addition to the wages paid to him, Claimant was entitled to an expense allowance for travel and in fact was paid his expense allowance for the period in question — from January 15/1973, to February 15, 1973. The voucher was submitted on February 15,1973, and Claimant was thereafter paid for all but three days during that period, during which three days he was assigned to the office.

Claimant reported to his office for work each work day during the period up to and including February 15, 1973, and performed his assigned work.

On February 17, 1973, Claimant received a letter from the Department of Labor, dated January 23,1973, and postmarked February 17, 1973, stating that effective as of January 15, 1973, his services had been terminated.

The Personnel Actions Report signed by the Director of Personnel indicates that the severance action was taken and approved on January 29,1973. It indicated that the type of personnel action taken was “Termination — Temporary Appointment (Non Certified).”

This Court entered an order in this case on September 23, 1976, which, in pertinent part, states as follows:

“Claimant’s proposed amendment complaint states that the employment and services for which recovery is sought ended on the 15th day of February, 1973, and that he has been paid for services rendered up to and including the 15th day of January, 1973. This complaint further alleges that on the 15th day of February,1973, the Department of Labor mailed to Claimant a letter, dated January 23,1973, to the effect that as of January 15, 1973 the services of Claimant had been terminated. The complaint further alleged that on the 15th day of January, 1973, Claimant presented his travel voucher to the Department for the month of January, 1973, and it was paid.
It appears to the Court that if the items set forth in the proposed amended complaint are true, this will create an entirely different situation than was presented heretofore, and that if Claimant’s contention is correct andhe did not receive the letter of termination dated January 23,1973, until February 15,1973, then he would be entitled to compensation for the period of January 15,1973, to February 15, 1973.”

In fact, Claimant did substantially prove all of the allegations of his complaint. He is entitled to be paid for the 30 day period for work performed as an employee.

The State contends and cites cases to the effect that any payment made by the State of Illinois must be properly authorized. With this Rule of Law, we agree. However, we cannot agree with the State’s contention that the authority to pay ended on January 15,1973, as evidenced, by the Notice of Termination. The Notice of Termination cannot have a retroactive effect. The termination action was not taken until January 29,1973, and not communicated to the Claimant until on or about February 17, 1973. Thus the authority to pay continued until February 17,1973. To hold otherwise is to allow the State to retroactively terminate any employee and even to allow the State to recover sums paid to employees after the retroactive date. This, of course, is patently absurd.

The State further contends that a recovery based on quantum meruit cannot be had from the State of Illinois. Again, this Rule of Law is not applicable to the case at hand. Claimant worked as an employee, at a stated wage, and his termination took legal effect at the end of the disputed period of time..

The most serious contention of the State is that Claimant was hired as a temporary employee and that, according to Section 8b 9 of the Personnel Code, Ill. Rev. Stat. Ch. 127, Para. 62b 108b.9,

“. . . Temporary appointments may be made for not more than six months . . . No position in the State service may be filled by temporary appointment for more than six months out of any 12 month period.”

The only evidence in the record that the Claimant was employed as a temporary employee was the “Personnel Action Report” which terminated the Claimant. We cannot give much credence to this document, in view of the manner of its production, the confusion of dates, and its attempted retroactivity. As a further example of its unreliability, this notice indicates that the “pay amount” was $639.00 per month when, in fact, other documents and the sworn testimony indicates the pay scale was $668.00 per month.

Further, if he was indeed a temporary employee and not allowed to be employed beyond six months, why did the Department approve and pay his travel expenses for the period involved? The State has made no explanation of this most convincing circumstance.

Claimant is thefore entitled to be paid for the final 30 days of his service.

Claimant is hereby awarded the sum of $668.00, plus employer contributions of $80.49.


text:
    (No. 75-CC-1020
    Marvin J. Schwarz, M.D., S.C., Claimant, v. State of Illinois, Respondent.

      Order filed June 8, 1978.

   Holderman, J.

This matter comes before the Court on a motion to dismiss filed by Respondent on April 17, 1978.

As grounds for said motion, Respondent alleges the following:

“1. Respondent brings this motion pursuant to 111. Rev. Stat. ch. 110, sec. 48, (i), 1977.
2. That the Claimant alleges that he performed psychiatric services for the State of Illinos and billed the Department Of Children and Family Services for $1,500.00.
3. That the Department of Children and Family Services prepared a department report, a copy of which is attached as Exhibit A, which shows that the amount due is the responsibility of the Department of Public Aid and the Department of Children and Family Services.
4. That on December 28, 1976, this office notified Claimant of the department report and agreed to stipulate to the portion of the claim affecting the Department of Children and Family Services, but, to date, Claimant has made no communication concerning any part of this claim.
5. That the present claim is in violation of Rule 5 (d)(3) which limits claims to no more than one department and that this complaint should be dismissed according to Rule 9 of the Court of Claims.”

It appearing to the Court that Respondent’s motion to dismiss is correct, said motion is granted and this cause dismissed.


author: Poch, J.

text:
    (No. 75-CC-1046
    P.L. Button Company, Claimant, v. State of Illinois, Respondent.

      Opinion filed May 15, 1978.

    Lawrence E. Johnson, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Poch, J.

This claim arises out of a cancellation of a building maintenance contract between the State of Illinois and the P.L. Button Company. The Respondent refused to pay the Claimant for the last six months of the contract. Claimant contends that it was ready, willing, and able to perform according to the terms of the contract and should be paid for the last six months.

The Respondent contends that the claim should be denied on the basis of fraud and for a failure to adequately prove damages.

Section 14 of the “Court of Claims Act” (Ill. Rev. Stat., Ch. 37, §439.14), provides as follows:

“Section 14 (Fraud against the State)
Whenever any fraud against the State of Illinois is practiced or attempted by any Claimant in the proof statement, establishment, or allowance of any claim or of any part of any claim, the claim or part thereof shall be forever barred from prosecution in the Court.”

The central argument of Respondent is that the four employees on the night shift turned in work cards showing that they had worked four hours when in fact, they had only worked for two or three hours. According to the testimony of Steven Button, the night shift job should only take about two and one-half to three hours. However, the Claimant estimated it would take four hours when negotiating the contract with the State.

The Court has carefully considered the record of proceedings before the Commissioner of the Court, the briefs submitted by the parties and finds that the Claimant has not proved his entitlement to an award.

Testimony offered by the Respondent, supported by time cards covering the last three months of the contract which during that time services were rendered, a total of $3,861.42 had been overpaid by the Respondent to Claimant.

These calculations were made as a result of comparing the actual hours worked by employees with the hours reported on the time cards kept by said employees.

The Court concurs with the Respondent’s position that the records establish clearly, through the testimony of Steven Button, as agent of the Claimant, that the Claimant was aware of the deception being practiced through the use of two sets of time cards and such action constitutes fraud within the meaning of Section 14 of the “Court of Claims Act” which is a bar to Claimant’s recovery.

Further, there is a serious question as to the credibility of and the extent of damages which the Claimant attempted to prove and this Court finds that the Claimant did not meet his burden on the issue by a preponderance of evidence.

In view of the above findings, there is not need for this Court to consider the issue of sufficiency of notice to terminate the contract by the Respondent to the Claimant.

Thus, this Court finds that the claim of the Claimant should be denied on the basis of fraudulent conduct of the Claimant acting through his duly authorized agent and employee. The claim of P.L. Button Company is hereby denied.


text:
    (No. 75-CC-1475
    John Ernest Lonzo, Claimant, v. State of Illinois, Respondent.

      Opinion filed May 16, 1978.

    Rolland H. Stimson, Attorney for Claimant.
    William J. Scott, Attorney General; Richard J. Grossman, Assistant Attorney General,, for Respondent.
   Polos, C.J.

Claimant, John Ernest Lonzo, has brought this action to recover damages for time unjustly served in the prisons of this State. The claim arises under Section 8(c) of the “Court of Claims Act” which provides that this Court has jurisdiction to hear and determine:

“All claims against the State for time unjustly served in prisons of this State where the persons imprisoned shall receive a Pardon from the Governor stating that such Pardon is issued on the ground of innocence of the crime for which they were imprisoned; provided, the Court shall make no award in excess of the following amounts:
For imprisonment of five years or less, not more than $15,000.00; for imprisonment of 14 years or less but over five years, not more than $30,000.00; for imprisonment of over 14 years, not more than $35,000.00; and provided, further, the Court shall fix attorneys fees not to exceed 25 percent of the award granted.”

The parties stipulated that Claimant was arrested for armed robbery on January 2,1972; that he was held in the Cook County J ail until J anuary 4,1972, when he was released on bond; that on October 19,1972, he was convicted of the offense in the Criminal Court of Cook County and sentenced to imprisonment for a term of not less than six nor more than ten years. It was further stipulated that he was thereafter held in the Cook County Jail until November 17, 1972, when he was transferred to Stateville Correctional Center in Joliet, Illinois. He was imprisoned there from November 17, 1972, to November 15,1973, when he was transferred to the Pontiac Correctional Center in Pontiac, Illinois, where he was imprisoned until March 6,1974, when he was released because the Illinos Appellate Court reversed his conviction.

Thus Claimant was incarcerated in prisons of this State for approximately 17 months following his conviction.

Claimant introduced into evidence a Pardon issued by Governor Daniel Walker, dated June 3,1975, granted on the grounds of innocence.

By virtue of the stipulation and the Pardon, Claimant has proved by a preponderance of the evidence that he meets the qualifications for recovery under Section 8(c) of the “Court of Claims Act.”

With respect to the amount of damages to which Claimant is entitled the evidence showed for the year immediately preceding entitled his arrest, he earned $7,030.89. As he was imprisoned for about 17 months, his wage loss during that period was approximately $9,000.00.

Claimant also seeks reimbursement for $2,000.00 in attorneys fees expended by him in his ultimately successful defense. We have previously held, however, that this is not a proper element of damage to be considerd in assessing a claim under Section 8(c) of the “Court of Claims Act.” The legislature intended to compensate persons for time unjustly served in prison, and attorneys fees necessarily incurred in the defense of criminal cases might more properly be classified as damages for prosecutions unjustly brought. They certainly cannot be considered and have not, in any previous case, been considered as an element of damages.

The Court is not limited, however, to lost wages as an element of damages. This Court must and does consider the anguish and suffering inflicted upon an innocent person obliged to serve time in a prison.

Claimant is hereby awarded the sum of $12,000.00 as compensation for the time which he unjustly served in prison. Pursuant to Section 8(c) of the “Court of Claims Act,” this court fixes as attorneys fees, a sum equal to ten percent of the amount of the award.


text:
    (No. 76-CC-0093
    Lonnie Arsbery, Claimant, v. State of Illinois, Respondent.

      Opinion filed May 12, 1978.

   Polos, C.J.

Claimant, Lonnie Arsberry, an inmate of Stateville Correctional Center has brought this action to recover for damage done to his personal property at the State-ville Correctional Center, Joliet, Illinois.

On April 22, 1975, Claimant was a prisoner at Joliet Penitentiary dormitoried in the west cellhouse. He had in his cell an FM/AM Stereo with Eight Track Tape Player and two speakers, Panasonic model (RE— 8134), in working order.

A riot had occurred in the cellhouse rendering the cellhouse uninhabitable, and at approximately 9:30 p.m. on April 22, 1975, all of the prisoners, including Claimant, were evacuated from the cellhouse and transferred to other locations within the institution.

Claimant testified that when he was handcuffed and taken from his cell his stereo was playing and in working order. This was corroborated by a written statement from one Officer Sims and addressed to a Captain Zuck, which was introduced into evidence.

Thereafter no inmates were left in the cellhouse and it was under the exclusive control of Respondent, while a work crew was brought in to make it liveable again.

About three days after the evacuation Claimant’s stereo was brought to him by one Lt. Jenkins. It had been extensively damaged during the three day interval. Both the speakers and the headphones had been broken, and it did not operate. It was stipulated by Respondent that Claimant paid $137.05 to have his stereo repaired.

While a bailment is ordinarily a voluntary, contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized.

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App. 2d, 90, 207 NE2d 84.

In Chesterfield, the Court quoted the following language from Woodson v. Hare, 244 Ala. 301, 1350 2d 172, at 174:

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.” Woodson v. Hare, 244 Ala. 301, 13 So2d 172 at page 174.

When Respondent removed the prisoners from Claimant’s cellblock, it took exclusive possession of all property contained therein.

The loss of damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State did not present sufficient evidence to overcome Claimant’s testimony that his stereo equipment was in working order when it passed into the control of the State. Further the State presented no testimony of its freedom from negligence with respect to the damage incurred. Claimant’s prima facie case stands unrebutted.

Claimant is therefore awarded the sum of $137.05.


text:
    (No. 76-CC-0156
    United Fire and Casualty Company, Claimant, v. State of Illinois, Respondent.

      Opinion filed January 25, 1978.

    Michael B. Metnick, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Poch, J.

This is an action brought by United Fire and Casualty Company, Claimant, as the subrogee of John Larkin, for damages to an automobile owned by John Larkin.

On October 26, 1974, Terry Phillips, an inmate at the Illinois Youth Center in St. Charles, Illinois, escaped from the Center. Allen Strossta, the Assistant Superintendent of the Center, stated that the escape occurred as a result of the failure of the cottage supervisors to communicate with each other as to the whereabouts of Phillips and three other inmates.

Three days after the escape, Phillips was spotted driving a stolen automobile by Deputy Rick A. Nelson of the Mercer County Sheriffs Department. In an attempt to elude Deputy Nelson, Phillips drove the stolen vehicle into a 1969, Chevrolet Camero which was lawfully parked. The parked vehicle belonged to Mr. John Larkin of Viola.

The damage to the Larkin vehicle was in the amount of $153.49. This amount was paid to Mr. Larkin by the Claimant. United Fire and Casualty is prosecuting this claim as the subrogee of John Larkin.

The State of Illinois is not an insurer and is liable for damages caused by an escaped inmate of a State Institution only if negligent in allowing an inmate to escape. (Dixon Fruit Company, et al., v. State of Illinois, 22 Ill.Ct.Cl. 271; Malloy v. State of Illinois, 18 Ill.Ct.Cl. 137). The sole issue here is whether the State of Illinois was negligent in allowing Terry Phillips to escape from the Illinois Youth Center in St. Charles, Illinois.

In view of the past record of Terry Phillips, the Respondents should have exercised more restrictive control over the movements of Phillips. Despite the prior escapes of Phillips, the State failed to put Phillips in a higher security situation.

The failure of the cottage supervisors to be aware of Phillips’ movements coupled with the history of escapes by Phillips clearly establishes negligence on the part of the Respondent in allowing Terry Phillips to escape from the Illinois Youth Center in St. Charles, Illinois.

It is the opinion of this Court that the evidence offered by the Claimant is sufficient to establish a prima facie case of negligence on the part of the Respondent.

Claimant is hereby awarded the sum of $153.49.


text:
    (No. 76-CC-0195
    Linder D. Devore and Iowa Kemper Insurance Company, Claimant, v. State of Illinois, Respondent.

      Opinion filed June 28, 1978.

    Shearer, O’Brien, Blood, Agrella and Blose, by Michael F. O’Brien, Attorneys for Claimant.

      William J. Scott, Attorney General; Bryan B. La vine, Assistant Attorney General, for Respondent.
   Polos, C.J.

Claimant, Linder D. Devore, has brought this action to recover the value of certain items of personal property stolen from his house on June 30, 1975. It is Claimants theory that the theft from his house was perpetrated by an escaped inmate of the Illinois Youth Center at St. Charles, Illinois, and was proximately caused by the negligence of State employees in permitting his escape.

Iowa Kemper Insurance Company had covered Claimant’s loss in the amount of $900.00, and is therefore joined as an additional party.

On June 30, 1975, Linder Devore returned to his home on the outskirts of St. Charles, Illinois at about 3:30 p.m. to discover that the home had been burglarized. An investigator from the St. Charles Police Department discovered a set of tennis shoe prints that lead into a plowed field adjacent to Devore’s garage. The prints led across the field until they were lost in the grass of a neighboring subdivision.

A neighbor of Devore had said that she saw a black male wearing white and blue tennis shoes, proceeding through the field on the day in question.

Earlier on June 30, 1975, one Arther Withers, a black youth, had escaped from the Illinois Youth Center at St. Charles. Withers was apprehended by the Chicago Police Department on July 3, 1975, and returned to St. Charles. He denied any knowledge of the burglary, and none of the items stolen were found in his possession. A print of his blue and white tennis shoes, was compared with photographs taken of the footprints in the muddy field adjacent to Claimant’s home. The size, shape and general sole characteristics of his shoes were similar to those in the photograph.

It is Claimant’s theory that Arthur Withers perpetrated the burglary of his home, and that employees of the Illinois State Training School For Boys, failed to use reasonable care in preventing an escape.

Even if we were to assume that sufficient evidence has been presented to establish that Arthur Withers indeed committed the burglary, there is a total absence of proof in the record that agents of the State were negligent in permitting his escape. Claimant introduced no testimony as to how Withers escaped, whether the negligence of any of Respondent’s employees was a factor in his escape, or whether the escape should have been anticipated by the school officials.

The State may be charged with liability for wrongful acts committed by escaped inmates of its institutions. However this Court has consistently held that to recover on such a theory a Claimant must prove by the preponderance of the evidence that the State was negligent in permitting the escape. Dixon Fruit Company v. State, 22 Ill.Ct.Cl. 271; Huff v. State, 22 Ill.Ct.Cl. 361; Goldring v. State, 27 Ill.Ct.Cl. 165.

There being no proof in the record that the State was negligent in supervising Arther Withers and permitting his escape, this claim must be denied.


text:
    (No. 76-CC-0195
    Linder D. Devore and Iowa Kemper Insurance Company, Claimants, v. State of Illinois, Respondent.

      Order filed March 2, 1979.

   Per Curiam.

This cause is before the Court on the petition of Claimant for a rehearing.

Claimant had sought to recover the value of certain items of personal property stolen from his house on June 30,1975, allegedly by an escaped inmate of the Illinois Youth Center at St. Charles, Illinois.

This Court denied the instant claim, on the ground that Claimant had failed to establish negligence by the State in permitting the youth to escape. In petitioning for a rehearing, Claimants refer the Court to Kendrick v. State, and U.S. Fidelity & Guaranty Co. v. State, No. 23 Ill.Ct.Cl. 188, where the Court held that where it is shown that an inmate of a State correctional facility has escaped, a presumption of negligence arises and it is incumbent upon the State to come forward with evidence to show that it was not negligent in permitting the escape.

We find that the instant case falls within the rule of Kendrick v. State, supra, and U.S. Fidelity & Guaranty Co. v. State, supra., and that the negligence of the State in permitting the escape of Arthur Withers has been established.

We must then consider whether Claimants have proven by a preponderance of the evidence that Arthur Withers was guilty of the theft of Devore’s property.

The burglary was discovered on June 30, 1975, at about 3:30 p.m. Earlier on that date, Withers had escaped from the Illinois Youth Center at St. Charles.

Maurice Clark, an investigator for the St. Charles Police Department, had investigated the burglary at Mr. Devore’s home. He said he discovered that someone had pulled up the garage door, and entered the home through the service door between the home and garage. He said they found a set of tennis shoe prints on Mr. Devore’s property adjacent to the point of entry to the house. The prints were fresh at about 2:30 p.m. He said he talked to some neighbors, and one told him that she saw a male black youth in a field adjoining Mr. Devore’s home “in a big hurry.” The neighbor described the youth as wearing blue and white tennis shoes and blue jeans.

In a report Clark made of his investigation he stated that the witness described the youth as wearing brown pants.

The police report also reflects that two individuals were in Mr. Devore’s house on the morning of the burglary, to hang curtain rods.

Clark said he took photographs of the prints in the field, and that when Withers was captured the prints were compared with the tennis shoes he was wearing. He said the size, shape and sole characteristics were similar. Withers was wearing blue and white tennis shoes when captured.

None of the objects allegedly stolen from the home of Mr. Devore were found in Withers’ possession when he was captured.

After a careful review of the record, the Court must conclude that Claimant has failed to establish by preponderance of the evidence that Arthur Withers perpetrated the burglary of the Devore residence. Firstly, there is no evidence, circumstantial or otherwise, to place Arthur Withers in Mr. Devore’s house. The only evidence pending in any way to tie Withers to the burglary is the testimony of a neighbor of Claimant, who said she saw a male, black youth wearing white and blue tennis shoes proceeding through a plowed field adjacent to Devore’s house on the day of the burglary.

We note that Withers denied any knowledge of the burglary, and none of the stolen items were found in his possession when he was apprehended four days later.

We also note that while he was wearing blue and white tennis shoes, there was no testimony that the prints of his shoes matched those found in the field. Officer Clark merely said that the prints were “similar” to those in the field.

The Court must conclude that the evidence of Wither’s commission of the burglary was not sufficient to meet Claimant’s burden of proof.

It is therefore ordered that Claimants’ petition for a rehearing be, and hereby is denied.


text:
    (No. 76-CC-0280
    Gilbert Gall, Claimant, v. State of Illinois, Respondent.

      Order filed October 21, 1977.

   Holderman, J.

This matter comes before the Court on Respondent’s motion to dismiss the complaint heretofore filed by the Claimant.

Complaint was filed on August 28,1975, for injuries which occurred on August 27, 1973.

On January 3, 1974, Claimant filed suit in the LaSalle County Circuit Court against Garry L. Johnson, which case was At Law No. 74-1-8 L, seeking damages from the defendant, a State Trooper, for injuries received as a consequence of the occurrence of August 27, 1973.

The motion for dismissal, in Count I, moves for dismissal on the grounds that the statute of limitations had not been complied with since the claim was filed more than two years after the date of the accident. In Count II, the motion sets forth as grounds for dismissal the fact that in LaSalle County Circuit Court judgment was entered on June 18,1975, in favor of the defendant. In this Count, Respondent states that this case is res judicata and, therefore, the claim filed in this Court is barred by prior adjudication.

In Count III of Respondent’s motion to dismiss, it further states that Claimant has made an election of remedies by proceeding to a verdict and judgment in the LaSalle County Circuit Court and accordingly he is barred from prosecuting this claim in the Court of Claims.

It appearing to this Court that all of Respondent’s objections are valid, any one being sufficient to sustain the motion to dismiss, said motion to dismiss is hereby granted and said cause is dismissed.


text:
    (No. 76-CC-0300
    Stevens Business Forms, Claimant, v. State of Illinois, Respondent.

      Opinion filed December 21, 1977.

    Jerome M. Rubenstein, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.

This matter comes before the Court as a result of a joint stipulation of facts as to issues, which states as follows:

“Come now the parties hereto and stipulate and agree that the following facts may be taken as proven without the necessity of offering any evidence. Said parties further agree that this joint stipulation, together with the Deposition of Charles F. Stephens, Jr., (with attached Exhibits) and Exhibit G, heretofor filed with the Court, state all the facts to be adduced herein and that no additional evidence shall be offered in this action. Each party reserves to itself the right to file briefs herein pursuant to the rules of the Court after the filing of this stipulation. Thereafter, the case may be taken by the Court as submitted.
1. The contract between Claimant and Respondent was for a total of 8,000,000 forms consisting of 5,000,000 RTls and 3,000,000 RT2s.
2. Except for 100,000 RT1 forms delivered to Springfield, Illinois, none of the unusable forms for which claim is being made were delivered to the State of Illinois.
3. The contract did not specify the ink to be used (other than to specify Face-Blue and Red: Backer-Blue:”).
4. The contract did not say that the ink must be “copiable.”
5. Stephens Press, Inc., d/b/a Stephens Business Forms, Claimant herein, (hereinafter “Stephens”) printed the Regititles, which are the subject matter of this claim, in 1974 (for use in 1975).
6. Stephens had printed similar forms for the State of Illinois in 1974 and in years prior to 1974.
7. Stephens had used what appears to be a similar blue ink on some of the forms it printed for the State of Illinois in 1974 (for use until June 30,1975) as it used on the Regititles, which are the subject matter of this claim.
8. Stephens did not know that the State of Illinois was going to copy the Regititles on the type of equipment the State ultimately used.
9. The Regititles Stephens printed in 1974 were copiable on most other types of copying machines other than the one the State actually planned to use, and did in fact use, for the forms which are the subject matter of this claim.
10. Neither party was aware that the copying equipment being used by the State of Illinois would not copy a particular blue ink used by the Claimant on the original printing.
11. Question Number one on the back side of the first sheet of Form RT1 stated: “Use black ballpoint pen or typewriter with dark ribbon.” Some of the previous years’ forms (also printed by “Stephens” stated on their face: “Print with black ballpoint pen or typewriter.”
12. A darker blue ink (blue with black ink added) was substituted on the new printing and was copiable.
13. The $33,334.08 claimed by the Claimants is their estimated costs (no profits) for producing the forms that had to be destroyed.
14. The paper destroyed had a salvage value of approximately $375.00.”

The question at issue is whether or not Claimant should be paid for producing the forms that had to be destroyed, minus the salvage value of $375.00.

It appears to the Court that Claimant had in the past furnished identical forms printed with the same ink and that it did not have any knowledge that the State of Illinos was going to copy the Regititles on the type of equipment that State ultimately did.

It further appears that the contract entered into by the State of Illinois and Claimant did not specify the type of ink that had to be used. In view of the fact that previous forms had been satisfactory, it is only reasonable to assume that Claimant was of the opinion that the forms furnished would be copiable.

It is unfortunate that neither party was aware that the copying equipment being used by the State had been changed so that the forms previously furnished were no longer copiable.

It is fortunate that the mistake was discovered before any other forms had been printed.

It appears to the Court that Claimant did perform its portion of the contract and that it did expend money in the amount of $33,334.08 for producing the forms on behalf of the State, minus the salvage value of the paper which was in the amount of $375.00.

A party to a contract who performs under same is entitled to be compensated for its work thereunder. 17 Am. Jur. 2d Contracts, 355. In 382 of said section, the following rule is laid down:

“The Rule is well settled that there may be a recovery on the contract for part performance of an entire contract if complete performance has been prevented by the other party. The act of one party to an entire-contract in preventing the completion of the undertaking gives a right of recovery. Expressed otherwise, a party to a contract, even though it is entire, who has performed part of it according to its terms and is prevented by the other party from performing or completing the contract may recover compensation for the work performed and materials furnished. A person prevented from continuing his contract by the arbitrary act of the other party may disregard it and recover the value of his services rendered in partial performance of it....”

An award is hereby made in the amount of $32,959.08.


text:
    (No. 76-CC-0398
    John T. Henry, Claimant, v. State of Illinois, Respondent.

      Order filed April 17, 1978.

   Per Curiam.

This matter comes before the Court upon Respondent’s objections to Claimant’s submission of travel regulations.

The original claim and the amendment to said original claim was for wages, interest thereon, meals and lodging, interest thereon, and attorney fees, which expenses were allegedly incurred by Claimant after being demoted from the rank of assistant superintendent, otherwise known as “major” of the Illinois State Police, to the rank of Captain.

This demotion took place on July 1,1965. On June 30,1970, Claimant sought relief by way of a mandamus action in the Sixth Judicial Circuit of DeWitt County. In that case, the Judge ordered Claimant to be reinstated to the rank of major as of July 1, 1965, and he was paid the difference in pay for the period of July 1, 1974, through April 30, 1975, by the Department.

In September of 1975, Claimant filed his claim in the Court of Claims seeking to receive his rights and benefits from July 1,1965, to July 1, 1974.

The Brief in support of Resondent’s motions and the supplemental Brief set forth that this claim should be dismissed or denied on two grounds: (1) that Claimant was guilty of laches inasmuch as he did not file any action from July 1965 until September 1975; and (2) that this claim is barred by the statute of limitations as set forth in Ch. 37, para. 439.22(f).

The Court finds that the grounds for denial of this claim as set forth by Respondent are correct.

This claim is denied.


text:
    (No. 76-CC-0418
    Clarence Houston, Claimant, v. State of Illinois, Respondent.

      Opinion filed December 19,1977.

    Phillip A. Montalvo, Attorney for Claimant
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Poch, J.

Neither party in this case filed briefs with the Court.

The Claimant in this action asked for money damages that resulted from injuries he received while a patient at Alton State Hospital, Alton, Illinois.

On or about February 10, 1975, Clarence Houston was admitted as a patient at the Alton State Hospital, Alton, Illinois, and was being treated for an alcoholic condition in a section of the Alton State Hospital known as Linden Cottage. At the time of admission the Claimant was 52 years of age and unemployed. Special damages were not pleaded in the Complaint.

On February 13, 1975, Claimant was severely beaten and injured by John Cook, a fellow patient at Linden Cottage. After receiving medical treatment at the Emergency Room for the injuries received, petitioner was once again returned to Linden Cottage, against his will, where he was placed on a cot, under sedation.

At approximately 4:15 a.m. on the morning of February 14,1975, Claimant was once again attacked and severely beaten and injured by the same patient, John Cook.

Claimant alleges that the employees, agents, supervisory personnel and staff of the Alton State Hospital negligently failed to provide adequate surveillance, supervision and security to protect petitioner from attacks by other patients and to insure his safety and well-being, in spite of the fact that he had already been attacked once on the evening in question, thus putting said employees, agents, supervisory personnel and staff on notice of the hostile and violent propensities of the patient, John Cook.

This Court has long held that it is the duty of Respondent to exercise reasonable care in restraining and controlling dangerous insane persons committed to its custody, so that they will not have the opportunity to inflict a foreseeable injury upon others. Hazel Rubinson, Executrix v. State of Illinois, 25 Ill.Ct.Cl. 67 at page 74. Callbeck v. State of Illinois, 22 Ill.Ct.Cl. 722. To recover for his injury, therefore, Claimant must prove Respondent breached their duty owed him; that he was free of contributory negligence; and that Respondent’s breach was the proximate cause of his injury.

From the testimony it is not clear what steps were taken to secure the patient, John Cook, and prevent him from further assaulting the Claimant in this case. There were indications that certain measures were taken to secure the patient, John Cook, but that he had freed himself from these security measures. There was indication in the testimony also that there was insufficient staff to control the situation. This testimony was offered primarily by a mental health technician.

The Court finds that sufficient testimony was presented to show that there was insufficient staff on the grounds and that improper methods of controlling the patients were utilized.

There are also clear indications from the testimony presented that the Claimant himself followed a course of conduct that very likely played some factor in provoking the conduct of the patient John Cook. The testimony indicated that Claimant on numerous occasions had made racial comments and slurs against the black patients in the different wards. The Claimant’s assailant, John Cook, was a black man. The Claimant’s conduct in degrading the black individuals in the hospital was insufficient as a contributing factor to his eventual assault to bar recovery.

The Court finds that the Claimant has carried his burden of proof in showing that Respondent was negligent in failing to fulfill its standard of care to the Claimant and the conduct of the Claimant was not a sufficient factor to eventual assault by John Cook to bar recovery.

From the evidence in this case there has been no permanent injury established.

Consequently, we hold that the Claimant is entitled under the law to recover damages in this action.. In view of the injuries that the Claimant sustained, the Court believes that $2,500.00 is a fair and just award.

It is ordered that the Claim should be and is hereby allowed in the sum of $2,500.00.


text:
    (No. 76-CC-0555
    Byron Neal Elliston, Claimant, v. State of Illinois, Respondent.

      Order filed June 12, 1978.

   Polos, C.J.

This cause is before the Court on Claimant’s motion to vacate an order of December 19, 1977, dismissing this cause, for failure of Claimant to comply with Section 22-1 of the “Court of Claims Act,” Ill. Rev. Stat. Ch. 37, §439.22-1.

The Court has carefully considered the memorandum of the Claimant in support of his motion, and the authorities cited therein. In particular, the Court has considered Claimant’s contention that Housewright v. City of LaHarpe, 282 N.E.2d 437, is authority for the proposition that since Claimant has alleged that the State was protected by liability insurance in this matter, it has waived the notice requirements contained in Section 22-1 of the “Court of Claims Act.”

The Court finds that Housewright v. City of LaHarpe is inapplicable to the instant action. That case involved construction of the “Local Governmental and Governmental Employees Tort Immunity Act,” Stevens Business Forms. Rev. Stat. Ch. 85, paras. 8-102 et seq., while the instant case in governed by the “Court of Claims Act,” Stevens Business Forms. Rev. Stat. Ch. 37, para. 439.22-1 et seq. In the case of a municipality such as the City of LaHarpe, there is no common law immunity from suits. The legislature granted limited immunity to municipalities in the form of the “Local Governmental and Governmental Employees Tort Immunity Act,” and contained in that law was a provision which the Supreme Court construed in Housewright to be a waiver of certain of the immunities set forth in that Act in the event the local entity obtained liability insurance.

Here the State of Illinois, as a sovereign entity, is immune from suits by its citizens. The State has partially waived its immunity to the extent set forth in the “Court of Claims Act.” However compliance with the “Court of Claims Act” is required if the State of Illinois is to be sued. There is no provision in the “Court of Claims Act” analagous to that section of the “Local Governmental and Governmental Employees Tort Immunity Act” which was construed in Housewright, to waive certain immunities if insurance was obtained. Accordingly, the Court finds no basis on which to conclude that the State waived any of the conditions contained in the “Court of Claims Act,” even, if, as alleged by Claimant, it did procure insurance which would cover its liability in the instant action.

For the foregoing reasons, Claimant’s motion to vacate this Court’s order of December 19, 1977, dismissing this cause is hereby denied.


text:
    (No. 76-CC-0564
    Melvin McKibben, Claimant, v. State of Illinois, Respondent.

      Opinion filed November 23, 1977.

    Silverstein & Stein by Michael Wexler, Attorney for Claimant.
    William J. Scott, Attorney General; James O. Stola, Assistant Attorney General, for Respondent.
   Polos, C.J.

Claimant, Melvin McKibben, seeks to recover the sum of $15,000.00 as damages for time unjustly served in the Illinois State Penitentiary.

This action arises under Section 8(c) of the “Court of Claims Act” which grants this Court jurisdiction to hear and determine:

“c. All claims against the state for time unjustly served in prisons of this State where the persons imprisoned shall receive a pardon from the governor stating that such pardon is issued on the ground of innocence of the crime for which they were imprisoned; provided, the Court shall make no award in excess of the following amounts: for imprisonment of five years or less, not more than $15,000.00; for imprisonment of 14 years or less but over five years, not more than $30,000.00; for imprisonment of over 14 years, not more than $35,000.00; and provided further, the court shall fix attorneys fees not to exceed 25 percent of the award granted.”

The record herein establishes that the Claimant was indicted by the Cook County Grand Jury for the crime of murder and was arrested pursuant thereto on November 10, 1971. Upon his arrest he was placed in the Cook County Jail where he was confined continuously until his trial. He was found guilty on April 17, 1972, and was sentenced to a term of imprisonment in the Illinois State Penitentiary for not less than 20 nor more than 30 years.

On January 17, 1975, the Appellate Court of Illinois reversed Claimant’s conviction stating:

“We conclude therefore, that the State’s evidence in this case is so unsatisfactory that it raises a reasonable doubt of defendant’s guilt.”

The Claimant was released from custody on January 17, 1975, and on July 23, 1976, Governor Daniel Walker issued a pardon to Claimant on the ground of innocence.

The issue in this case is the amount of damages to which the Claimant is entitled. Claimant worked as a barber prior to his conviction. He proved by his testimony and that of his employer that his earnings prior to his conviction were between $95.00 and $100.00 per week.

Claimant seeks compensation for imprisonment from the time of his arrest to the time of his release — a period of three years and two months — which includes incarceration in the Cook County Jail awaiting trial.

Respondent contends that time served awaiting trial is not “time unjustly served in prisons of this state” and that such time should not be included in computing the compensable period. Respondent thus urges that Claimant spent only two years and nine months unjustly imprisoned in a prison of this State.

This precise question was decided by this Court in Coffey v. State, 31 Ill.Ct.Cl. 350 (1977), where the Court held that time served in a county jail awaiting trial is not compensable under the Act.

In computing an award for time unjustly served in a prison of this state, the Court must consider monetary loss, the anguish necessarily suffered by a Claimant be reason of the loss of his liberty, and the length of the incarceration in a prison of this State.

On consideration of the record in this case, the Court finds that Claimant should be awrded the sum of $10,000.00 for his unjust imprisonment in a prison of this State.

It is therefore ordered that Claimant be and hereby is awarded the sum of $10,000.00.


text:
    (No. 76-CC-0675
    Irving Weissman, M.D., Claimant, v. State of Illinois, Respondent.

      Order filed, April 18, 1978.

   Per Curiam.

On November 6, 1975, Claimant filed his complaint seeking $4,361.00 for medical services rendered to Public Aid recipients under the Medical Assistance Program during the year 1969.

On September 21, 1977, Respondent moved to dismiss citing Ill. Rev. Stat. Ch. 23, Section 11-13, 1975, which provides as follows:

“Vendors seeking to enforce obligation of a governmental unit or the Illinois Department for goods or services (1) furnished to or in behalf of recipients and (2) subject to a vendor payment as defined in Section 2-5, shall commence their actions in the appropriate Circuit Court or the Court of Claims as the case may require, within one year next after the cause of action accrued.”

The State further cites Weissman v. State of Illinois, 31 Ill.Ct.Cl. 506, 577, to the effect that Department regulations entitled “State of Illinois, Department of Public Aid, Medical Assistance Program, Handbook for Physicians” Section 141, provides that billing for services must be made within six months, otherwise no payment will be made.

The Claimant has failed to reply to the motion.

Complaint is dismissed for failure to comply with the one year time limitation period.


text:
    (No. 76-CC-0809
    Burditt & Calkins, Claimant, v. State of Illinois, Respondent.

      Opinion filed June 23,1978.

   Polos, C.J.

The law firm of Burditt & Calkins has brought this action to recover the sum of $19,799.72 which it alleges it is due for legal services rendered to the State of Illinois. Claimant contends the State of Illinois is obligated to pay its billing for representing the State Board of Elections, or the officers thereof, in the litigation entitled Franklin J. Lunding v. Daniel Walker, and Socialist Workers Party v. State Board of Elections, Et Al.

At issue is whether the State of Illinois may be charged for the services rendered by Claimant in each of the aforesaid cases.

Franklin J. Lunding was the only witness to testify in this proceeding. He said that the matter of Lunding v. Walker arose out of the attempt by former Governor Walker to remove him from the State Board of Elections. Lunding said he initiated the litigation in the Circuit Court of Cook County, in order to prevent his removal. He said that he had conferred with a representative of the Attorney General of Illinois with respect to whether or not that office would represent him in that litigation, and that he determined from his conversation that the Attorney General’s office would represent Governor Walker. Lunding said that the Attorney General’s office voiced no objection to his obtaining outside counsel to represent him.

Lunding said that Burditt & Calkins was hired to represent the State Board of Elections in the Socialist Workers Party case, because the Office of the Attorney General refused to represent the State Board of Elections. That action arose after a complaint was filed with the State Board of Elections against the Illinois Socialist Workers Party campaign fund under the “Campaign Financing Act.” The Socialist Worker’s Party filed suit in the United States District Court for the Northern District of Illinois, challenging the constitutionality of the “Campaign Financing Act.” The members of the State Board of Elections were sued in their individual and official capacities, along with the State’s Attorney of Cook County, and the Attorney General of Illinois.

Respondent argues that the State is not responsible for the legal fees incurred by the State Board of Elections in these matters. Respondent asserts that the lawsuit brought by Franklin Bunding was his personal litigation, in which the people of the State of Illinois were not the real parties in interest. The State further argues that the Attorney General was the sole legal officer authorized to represent the State Board of Elections in the Socialist Party Workers case, and that the Board was without authority to contract for outside legal counsel.

We find that we do not need to reach these issues, however. In support of their claim, Claimants have submitted the affidavits of Franklin Bunding and Michael E. Eavelle, both of whom were members of the State of Illinois Board of Elections at the times in question. Those affidavits state that at the time the Board contracted for the legal services of Burditt & Calkins, sufficient monies had not been appropriated to the State Board of Elections to cover those expenses.

The Illinois Constitution of 1970, as did its predecessors, vests the power to authorize the expenditure of State funds exclusively in the General Assembly. Article 8, Section 2, provides:

“The General Assembly by law shall make appropriation for all expenditures of public funds by the State appropriations for a fiscal year shall not exceed funds estimated by the General Assembly to be available during that year.”

Further, Ill. Rev. Stat., Ch. 127. Sec. 166, states:

“No officer, institution, department, board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law.”

Thus it has long been held that contracts entered into by state agencies, in excess of appropriations, are null and void. See, Fergus v. Brady, 277 Ill. 272; Schutte and Koerting Company, et al., v. State, 22 Ill.Ct.Cl. 591; Sears, et al. v. State, 24 Ill.Ct.Cl. 452.

On the record before this Court, it appears that the State Board of Elections contracted for outside legal services in the absence of an unencumbered appropriation. This Court is therefore without power to make an award in this matter, for to do so would be to usurp the exclusive power of the legislature to determine the limits on the amount of public funds that may be expended.

It is therefore ordered that this claim is denied.


text:
    (No. 76-CC-0884
    Donna K. Oster, a minor, by Warren Charles Oster, her father and next friend, Claimant, v. State of Illinois, Respondent.

      Opinion filed February 27, 1978.

    Berkson, Gorov, & Levin, Ltd., Attorneys for Claimant.

      William J. Scott, Attorney General; James 0. Stola, Assistant Attorney General, for Respondent.
   Poch, J.

This is a claim for personal injuries suffered by Donna K. Oster, a minor, while she was a patient at the Elizabeth Ludeman Center, which is operated and maintained by the Respondent, State of Illinois. The claim is brought by her father and next friend, Warren Charles Oster, on her behalf.

The cause was assigned to a Commissioner of the Court for presentation of evidence. The parties entered into certain stipulations wherein documentary evidence, consisting of X-rays, photographs, hospital records and various reports and logs prepared by the employees of the Respondent were admitted into evidence in lieu of oral testimony.

The evidence admitted pursuant to stipulation is summarized as follows: the Ludeman Center houses its patients in small residential units, each accommodating about eight children. During the patients’ waking hours two staff members are on duty at each unit. One staff member is on duty at night. The housing unit consists of a family room, dining room, bathrooms and four twin bedrooms, plus a kitchen. As a part of the effort to treat the children as normal individuals, they are allowed free access to all parts of the dwelling unit. As a result of this policy they are not under direct observation of a staff member at all times of the day. The children are also taken out of the home, under staff supervision, to the snack shop and the playground on the premises of the center.

Each residential unit is cleaned two to three times daily. Staff members are told to see that dangerous items are not left for the patients to pick up.

The Claimant, age ten, was admitted to Ludeman Center in 1974, suffering from severe mental retardation and severe visual loss. The Ludeman Center is maintained by the Respondent to treat such children.

The Claimant’s parents were allowed to visit Donna at the center and did so on 11 occasions in 1975 prior to July 31,1975, when it was discovered by the use of X-rays that she had swallowed two bobby pins which had lodged in her intestine. During the times the Claimant’s parents visited her they had the opportunity to take her from the grounds of the center. These visits lasted from one and one-half hours to five hours and fifteen minutes, during which time Donna was in the exclusive custody of her parents. The record does not contain any evidence that her parents took Donna from the grounds during these visitation periods.

On July 31,1975, X-rays were taken, showing that the Claimant had two bobby pins lodged in her bowel. She was taken to Children’s Memorial Hospital where surgery was performed to successfully remove them. The surgeon, Dr. Joseph O. Sherman, would, have stated, if called, that it was impossible to determine the date of ingestion, which indicated that they could have been swallowed at any time since the Claimant’s last X-ray which had occurred at some time before J anuary 1,1975.

Subsequent to Claimant’s hospitalization due to this incident, the Respondent conducted an investigation to try and determine how the Claimant obtained the bobby pins. The Departmental report, admitted by stipulation, indicated that no staff member allowed Claimant to swallow bobby pins or even obtain them. The staff also took every reasonable step to make sure potentially dangerous items were not available to patients. The supervisor of the home in which Claimant resided, Debbie Corbin, if called, would have stated that the only person she ever observed in the home wearing bobby pins was the Claimant’s mother, Mrs. Warren Oster. None of the staff or volunteers working at the home used bobby pins.

The parties also stipulated to the extent of the medical treatment to the Claimant and the cost of such treatment.

In her complaint the Claimant alleges that the Respondent committed several specific acts of negligence. In her brief the Claimant asks that the Court apply the doctrine of res ipsa loquitur to the facts, thus trying to shift the burden of going forward to the Respondent, without proof of specific acts of negligence.

In order for the doctrine of res ipsa loquitur to apply the Claimant must show:

“... 1) the accident must be of a kind which ordinarily does not occur in the absence of somebody’s negligence; 2) it must be caused by an agency or instrumentality within the exclusive control of the Defendant; 3) it must not have been due to any voluntary action on the part of the plaintiff.” Karluski v. Board of Trustees of the University of Illinois, 25 Ill.Ct.Cl. 295 at 298 (1966).

cf. Wells v. State, 31 Ill.Ct.Cl. 375 and McMahon v. State, 26 Ill.Ct.Cl. 476, 479.

Applying these rules of law to the instant case leaves no doubt that the doctrine has no application to these facts. Ingestion of foreign objects by children often occurs in the absence of another’s negligence. In addition there is no evidence that the two bobby pins were in the exclusive control of the Respondent. On many occasions the Claimant was in the custody of her mother who was observed wearing bobby pins in her hair. Therefore, the Claimant could have found the bobby pins at any time despite Respondent’s actions to keep the premises safe and clean. Lastly, there is no evidence to show any staff member or volunteer used bobby pins. Because the Respondent did not have exclusive control and management over the Claimant or the bobby pins during all the time they could have been ingested this Court finds that as a matter of law, the doctrine of res ipsa loquitur is inapplicable to the facts.

Even without the application of the doctrine of res ipsa loquitur to this case the evidence leaves no doubt that the Claimant has not met her burden of proof in order to be entitled to an award. It is well settled that a Claimant must prove that the State was negligent, that such negligence was the proximate cause of the injury and that the Claimant was in the exercise of due care and caution for his or her own safety. Simmons v. State, 26 Ill.Ct.Cl. 351, 354 (1968). The evidence, admitted by stipulation, which has been summarized above shows that the Respondent exercised due care for the Claimant. There is no evidence that the Claimant ever tried to ingest foreign objects on previous occasions. The Respondent was under no notice, therefore under no duty, to take any special precautions to observe the Claimant’s behavior. The Court in Karluski v. Board of Trustees of the University of Illinois, supra, 25 Ill.Ct.Cl. 295 (1966) said:

“(The) hospital is not an insurer of a patient’s safety, but owes the patient the duty of protection, and must exercise such reasonable care as the patient’s known condition may require.” Id at 298.
“... this rule is limited by the rule that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen.” Id at 299.

The evidence shows that the Respondent exercised the amount of care as the Claimant’s known condition required. Under the known circumstances no reasonable person would anticipate the Claimant would swallow two bobby pins, especially where no staff member used them and that the premises were maintained as they were. The only way to avoid such injury to those such as Claimant would be to restrict them to constant surveillance and under isolation. This would defeat the purposes of institutional care and do more harm than good. See Hanvey v. State, 22 Ill.Ct.Cl. 513, 519 (1957).

The Respondent was not negligent in the care and supervision of Donna Oster. While it is unfortunate that the Claimant was injured she has not proved by a preponderance of the evidence that the Respondent was guilty of negligence. In the absence of such proof her claim must be denied.

The claim of Donna K. Oster is hereby denied.


text:
    (No. 76-CC-0967
    State Employees’ Retirement System of Illinois, Claimant, v. State of Illinois, Respondent.

      Order filed August 24, 1977.

   Polos, C.J.

The record in this cause indicates the purpose for which this claim was filed was for the payment of the State contribution to Social Security (FICA) for the period June 15, 1975, to June 30, 1975, on payroll voucher #24, in accordance with schedules authorized and determined by law and that the Attorney General has submitted a stipulation by Respondent based upon information forwarded to his office by said department, as evidenced by the departmental report attached to the stipulation by Respondent.

Accordingly, this Court finds that this was a properly authorized expenditure by the State of Illinois, Department of Business and Economic Development. No part of this expenditure has been paid and the total outstanding is $134.51. Money was appropriated under appropriation and fund #001-53601-1170-0000 of which appropriation there were insufficient funds from which to pay these contributions.

The “Social Security Enabling Act,” Ill. Rev. Stat. Ch. 108h, paras. 21-101 et seq., generally and paras. 21-123 specifically provides that:

“Each political subdivision or instrumentality as to which a plan has been approved under ‘the 1951 Act’ or this article shall pay into the Social Security Contribution Fund, with respect to wages at such time or times as the State Agency may by regulation prescribe, contributions in the amount and at the rate specified in the applicable agreement entered into by the State Agency.”

The Constitution of 1970 provides in Article VIII, Sec. 1 that:

“Section 1. General Provisions
(a) Public funds, property or credit shall be used only for public purposes.
(b) The State, units of local government and school districts shall incur obligations for payment or make payments from public funds only as authorized by law or ordinance.”

The General Assembly, realizing that budgetary problems would arise from time to time authorized the binding of the State in excess of moneys appropriated as follows:

“No officer, institution, department, board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law.”

Accordingly, this Court finds that the expenditures for which claim is made was an obligation “Expressly Authorized by Law.”

It is hereby ordered that the Claimant be awarded in full satisfaction of any and all claims presented to the Staté of Illinois under the above captioned cause the sum of $134.51.

This award is not to be paid out of the Court of Claims Fund.


text:
    (No. 76-CC-1070
    St. John’s Hospital of the Hospital Sisters of the Third Order of St. Francis, an Illinois not-for-profit Corporation, Claimant, v. State of Illinois, Respondent.

      Opinion filed January 25, 1978.

    Graham & Graham, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber and Lawrence W. Reisch, Jr., Assistant Attorneys General, for Respondent.
   Holderman, J.

This matter comes before the Court on a claim filed by Claimant for services rendered to one David W. Landers.

David W. Landers was a resident of Springfield Township, Sangamon County, Illinois, and at the time of his hospitalization was in the legal custody of the Juvenile Division, Department of Corrections of the State of Illinois.

David W. Landers was injured in an automobile accident and was taken by emergency vehicle to a hospital where the emergency treatment was rendered for which Claimant now seeks to recover.

This claim was previously presented to the Circuit Court of the Seventh Judicial Circuit, Sangamon County, Illinois, Cause No. 75-LM-808. In that cause, Claimant sought relief against two townships, they being the area in which the parents of the injured party lived at the time of the accident.

At the time of the accident, David W. Landers was on parole to his parents’ home.

The Circuit Court of Sangamon County entered an order, filed December 18,1975, in which the plaintiff s cause of action was dismissed without prejudice. The order stated that the Director of Juvenile Division, Department of Corrections, was legally liable to pay for such hospital services and that since Landers was not indigent, the two townships could not be held liable. The Court further held that the claim must be pursued in the Court of Claims.

Respondent denies liability on the theory that the injured party was not in the actual physical custody and control of the State at the time of the accident in question.

The hospital finds itself in the unenviable position of being compelled by law to furnish services to each and every individual who is brought to its doors and then finds that no one cares to assume the responsibility of paying for treatment rendered.

It is not denied by any party herein that the treatment was necessary, that it was furnished, and that the amount claimed is fair and reasonable.

Claimant contends that Ill. Rev. Stat., Ch. 38, paras. 1003-14-3 provides that the Department can purchase “necessary services” for a parolee and Claimant further contends that medical treatment was a necessary service.

Respondent’s theory is that the statute merely authorizes the department to purchase the services and does not require it to.

There was also some question raised as to whether the Department of Public Aid or the Department of Corrections was the proper department. This seems rather immaterial because in either instance, the State is held liable.

It is the opinion of this Court that Claimant was in the legal custody of the Department of Corrections at the time the services were rendered and that said services should be paid for by the State.

An award is hereby made to Claimant in the amount of $1,952.62.


text:
    (No. 76-CC-1325
    Alfred A. Tavoletti, Claimant, v. State of Illinois, Respondent.

      Opinion filed May 4, 1978.

    Donald W. Cohen, Attorney for Claimant.

      William J. Scott, Attorney General; James O. Stola, Assistant Attorney General, for Respondent.
   Polos, C.J.

Claimant, Alfred A. Tavoletti, seeks to recover back pay and benefits during a period of time in which he was laid off and terminated from his employement with the State of Illinois Department of Transportation.

The parties stipulated that the Claimant was employed by the Department of Transportation of the State of Illinois continuously from 1969 to July 29, 1974. On that date he received a 30 day disciplinary layoff, and on August 23,1974, was terminated. Claimant thereafter was reinstated by the Department of Transportation on March 24,1975. At the time of Claimant’s disciplinary layoff, he was receiving a monthly salary of $1,080.00, and because of overtime, had earned $9,377.46 during the period from January 1, 1974, to July 29, 1974. Claimant seeks to recover his salary for the period of his layoff and termination.

When Claimant was reinstated, there was pending in the Circuit Court of Cook County, a complaint for administrative review which had been filed on his behalf seeking review of the order terminating him. On May 28,1975, this complaint was dismissed on motion of the State of Illinois, which motion recited that the Claimant had reached a settlement agreement whereby Claimant had been reinstated to his former job “with all benefits intact.”

The first issue to be determined is whether the settlement agreement reinstating Claimant “with all benefits intact” included back pay.

The record indicates that protracted settlement negotiations led to Claimant’s reinstatement and the dismissal of his action for administrative review.

At one point, Claimant rejected the State’s offer to reinstate and pay him the sum of $4,300.00 in back pay. It appears that throughout the negotiations there was never any real issue as to reinstatement, and the primary dispute between the parties was the cash amount of benefits to be received by Claimant upon his reinstatement.

The State contends that the words “with all benefits intact” do not indicate an agreement to pay back salary. However, the fact that during the negotiations the State offered $4,300.00 in addition to reinstatement indicates that the parties were negotiating on the basis that Claimant was to receive some back pay. The Court therefore concludes that it was the intention of the parties that the words “benefits intact” referred to back pay.

The remaining issues concern the basis on which back pay should be calculated, and the amounts of the set-offs, if any, to which the State is entitled.

. On the first question, the evidence was that the Claimant earned $1,080.00 per month. During the first seven months of 1974, due to overtime performed in snow removal from State highways, he earned $9,377.46. Claimant contends that his full earnings, including overtime, should be used as the basis of his back pay claim.

We cannot agree with the State’s contention that including overtime in the total of back pay lost is speculative. While the amount of overtime required by the State for snow plowing and salting may vary from time to time, the Court takes judicial notice of the fact that in the climate of Illinois, there will be some need for highway work related to snow and ice, and that a fair and reasonable basis for calculating a future amount of required overtime would be a past record of required overtime wages. Claimant testified that there was substantial overtime work on a recurring basis in each year of his employment during the months of October to April. We therefore find that the total wages lost by Claimant totalled $10,700.00, including the overtime which he reasonably could have expected to earn.

As to the issue of set offs, Claimant worked for Alpha Construction Company and Burnside Construction Company during the period of his discharge, earning the sum of $2,352.48. It is not contested that the State is entitled to set off these amounts.

What is contested, however, is whether the State is also entitled to a set off of amounts Claimant earned from H-B Services and Savoia’s, for whom he also worked on a part-time basis during the period of his discharge. The evidence indicates that Claimant was employed by both H-B Services and Savoia’s on a part-time basis prior to his discharge, and while employed by the Department of Transportation. This work was performed at night, and did not interfere with the performance of his duties for the Department of Transportation. After his discharge, Claimant’s work for those employers was similarly done on a part-time basis at night.

People v. Johnson, 32 Ill. 2d 324, 2 05 N.E.2d 470, the Supreme Court said:

“The theory underlining a suit for back salary is to make the employee whole — to compensate him to the extent that the wrongful deprivation of salary has resulted in financial loss. For that reason, the amount recoverable is to be reduced by his other earnings during the period of separation insofar as such income would have been incompatible with performance of his duties to his erring employer. But this does not necessitate mitigation of the recoverable salary by earnings compatible with and being received during the employment from which the employee is wrongfully discharged. There is in this record no hint of incompatibility with relator’s liquor store employment and his obligation to the municipality, either in the form of regulatory proscriptions or conflicting hours or duties. In fact, relator held both jobs for a substantial period of time prior to his wrongful discharge. As was aptly observed by the Appellate Court, the industrious holder of two compatible jobs who was wrongfully discharged from one should not be penalized by permitting the wrongdoer to deduct from the damages for which he is liable, the earnings of the second job during the period of wrongful discharge.”

On the basis of the holding in the Johnson case, it is clear that the State has no right of set off as to the income from Claimant’s part time employments.

Accordingly, this Court finds the Claimant is entitled to recover $10,700.00 less $2,352.48 in set offs, or a total of $8,347.52.

It is hereby ordered that the Claimant, Alfred A. Tavoletti, be, and hereby is, awarded the total sum of $8,347.52, plus employer contributions of $1,189.82.


text:
    (No. 76-CC-1460
    Connie Armstrong, Claimant, v. State of Illinois, Respondent.

      Order filed January 31, 1978.

   Holderman, J.

Claimant filed suit against the state of Illinois seeking recovery of $1,062.49 for services rendered to the office of the governor of the state of Illinois.

In her complaint, Claimant alleges that payment was refused on the grounds that funds appropriated for the office for such payments had lapsed.

Respondent filed a motion to dismiss alleging that the Governor’s Action Office was not funded by the legislature and this necessitated placing individuals on the payroll of the department that their services impacted. Claimant in this instance worked on Public Aid matters.

The motion to dismiss sets forth the following information from the Department of Public Aid:

“(a) Answer one of their report states that “IDPA has available no basis or method for determining the facts in support of this claim.”
(b) Answer to question two relates that “IDPA has no record that Claimant was ever on its payroll. We thus have no information indicating that this department has a salary obligation to her, nor is there any record that Claimant has ever asserted such an obligation.”
(c) In answer to question 11 the report states “Claimant reports (complaint Exhibit “A”) being advised by the Director, Governor’s Action Office, that funding was being sought for an $8,500.00 annual salary for her; we have no information which would support this expectation.”
(d) In answer to question no. 12 the report states “Nothing presented in the complaint, referenced correspondence or IDPA records suggest that any laibility of this Department exists in Claimant’s favor. Claimant does not even assert a claim against IDPA, but rather bases her alleged employment on expressions of hoped-for funding originating outside of IDPA.”

4. Pursuant to Rule 14 of this Court the departmental reports are prima facie evidence of the facts set forth therein.

5. The departmental reports state facts, which until disputed, establish a prima facie case that the Governor’s Action Office was never funded and therefore any attempt to staff said office constituted ultra vires acts by those so attempting. The attempt to plant these “ghost employees” on the payrolls of other departments would violate the intent of the appropriations made to the various other departments and would also therefore constitute an ultra vires act by those persons so attempting.

6. The actions of the Claimant as portrayed by the facts set forth in the complaint clearly establish that the Claimant was acting with full knowledge of the fact that there were no funds available for the payment of her salary and therefore any time which she put in consitutes a gratuity.

7. There being no appropriation for the employment of staff personnel for said Governor’s Action Office the attempted contracts of employment would be prohibited by law and where a contract is prohibited by law, there can be no recovery on a quantum meruit basis, Schutte et al v. State, 22 Ill.Ct.Cl. 591.”

It appears to the Court that the Governor’s Action Office was never funded and therefore any attempt to staff said office constituted ultra vires acts by those so attempting and to place these employees in other departments would violate the intent of the appropriations made to the departments where the individuals were placed.

The case found in 22 Ill.Ct.Cl. 592, lays down the rule that whoever deals with municipalities does so with a limitation on itself or its agent’s powers and when contracts or portions of a contract were let when appropriations were exhausted, claims based on these contracts would be denied. It further states that every claim or contract, if not within the amount of the appropriation already made, is void.

It is abundantly clear in the present case that appropriations were never made for the Governor’s Action Office; therefore, an attempt to hire individuals such as Claimant was illegal.

Motion to dismiss is heareby granted and said cause is dismissed.


text:
    (No. 76-CC-1554
    Rock Island Franciscan Hospital, Claimant, v. State of Illinois and Illinois Department of Public Aid, Respondent.

      Opinion filed December 19, 1977.

    James J. Gende, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Polos, C.J.

This is a claim by the Rock Island Franciscan Hospital against the Illinois Department of Public Aid, to recover the sum of $886.47, being the balance due for medical goods and services provided to one Charles Smith during the period May 17,1974, to June 18,1974.

Prior to June 18, Charles Smith was a patient at the Claimant hospital. On May 14, 1974, the Utilization Review Committee of the Claimant hospital determined that Charles Smith should be discharged on May 17,1974. The decision of the committee resulted in Smith’s medicare benefits being terminated as of that date.

It appears that Smith’s condition was such that he could not return home, but rather that it was necessary to place him in a nursing home. In such instances, it is the usual procedure for an application for Public Aid benefits to be submitted to the Department of Public Aid to cover the period from the termination of medicare benefits to placement in the nursing home. This application was completed by Claimant on behalf of Mr. Smith on May 17, 1974, and was received at the Department of Public Aid on May 20. The document recited that Mr. Smith’s estimated hospital stay was “until nursing home placement.”

Although the Department of Public Aid finally accepted Mr. Smith’s application for Public Aid benefits on July 14, 1976, retroactive to April 19, 1974, it refused responsibility for any expense incurred between May 16, 1974, the effective date of the decision of the Utilization Review Committee, and June 18,1974, the date on which Mr. Smith was placed in a nursing care center. Respondent contends that it did not receive proper notification of the decision of the Utilization Review Committee so as to make it responsible for the expenses incurred during this period.

Thus the sole issue in this action is whether the Department of Public Aid received proper notice from the Claimant of the decision of the Utilization Review Committee, so as to permit the Department to make a decision on eligibility and take the necessary steps for placement.

The Court finds that Claimant established, by a preponderance of the evidence, that the Department of Public Aid was given timely notice of the decision terminating Mr. Smith’s medicare benefits. Certain of Claimant’s business records which were introduced into evidence indicated several contacts between Claimant’s social workers and the Department of Public Aid in May, 1974, relating to Mr. Smith’s situation. A witness for Claimant further testified that there had been numerous conversations between agents of the Claimant and employees of the Department of Public Aid in May, 1974, which would show an awareness of the decision of the Utilization Review Committee.

Although Respondent contends that the notice given by Claimant was improper, it is unable to cite any rule or regulation establishing a contrary, formal procedure for such notification. In fact, Respondent’s own witnesses agreed that the usual system of notification was informal.

In conclusion, the evidence shows that the Respondent did have timely notice of the decision of the Utilization Review Committee, and that the notice was given in the usual and customary manner.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $886.47.


text:
    (No. 76-CC-1631
    Jefferies Perry, Claimant, v. State of Illinois, Respondent.

      Order filed April 14, 1978.

   Per Curiam.

This is a claim by an inmate of an Illinois correctional facility for reimbursement for 200 books which he alleges were stored for him by the Department of Corrections while he was incarcerated, and have now disappeared.

Respondent has moved to dismiss this action, on the basis of a report of the Department of Corrections, which states that 60 of Claimant’s books were issued to him while he was incarcerated, and that he donated the remainder to the prison library.

Rule 14 of the Court of Claims provides that a departmental report is prima facie evidence of the facts set forth therein. Claimant has not responded to the motion to dismiss, and the departmental report submitted by the Department of Corrections is therefore uncontradicted.

It is therefore ordered that this cause be, and hereby is, dismissed.


text:
    (No. 76-CC-1716
    IBM Corporation, Claimant, v. State of Illinois, Respondent.

      Order filed December 2, 1977.

   Per Curiam.

This matter comes before the Court on a joint stipulation entered into between the attorney for the Claimant and attorney for Respondent.

In said stipulation, it is agreed between the parties that the amount of $4,368.50 represents the liquidated damage amount Respondent owes Claimant for early termination of the agreements.

Parties hereto have agreed and stipulated that the amount above set forth is correct and an award is hereby entered in the amount of $4,368.50 in favor of Claimant.


text:
    (76-CC-1903
    Rock Island Franciscan Hospital, Claimant, v. State of Illinois and Illinois Department of Public Aid, Respondent.

      Opinion filed April 7, 1978.

    James L. Gende, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Polos, C.J.

This is a claim for $1,308.45 by Franciscan Hospital against the Department of Public Aid for medical goods and services provided to one Alice M. Pomeroy. On February 21, 1971, Alice Pomeroy, a Public Aid recipient, was admitted to Franciscan Hospital. On April 6, 1971, the hospital’s Utilization Review Committee met and decided that she should be discharged on April 9,1971, and sent to a nursing home. Before the nursing home placement was implemented, Alice Pomeroy died.

At issue is whether the Department of Public Aid is responsible for services rendered to Alice Pomeroy after the date of the decision of the Utilization Review Committee.

Respondent contends that it is not so liable, because it was never properly notified of the decision of the Utilization Review Committee.

Claimant contends that it notified Respondent on various occasions of its intention to discharge the patient, and of its belief that a nursing home placement was necessary. The Respondent does not deny these facts, but contends that they are insufficient to give proper notice to make the Respondent responsible for any expense after the date of the decision of the Utilization Review Committee.

Thus, the sole issue is whether the Respondent received proper notice so as to be responsible for the medical goods and services provided by Claimant subsequent to the date of the decision of the Utilization Review Committee.

Susan Crawford, a witness for Claimant, testified that on February 22, 1971, a notice of the patient’s admission to the hospital was sent to the Respondent. The relevant Department of Public Aid Regulations provides:

“Plan For Care After Discharge: Upon notification of a recipient’s admission to the hospital, local staff is to determine in consultation with the physician, and is to initiate plans for such case as maybe needed to that any necessary arrangements will be made by the time the patient is ready for discharge.”

Thus, upon notification that a recipient of Public Aid had been admitted to a hospital, the Respondent has an affirmative duty to initiate plans for the recipient’s post-discharge care.

Through its business records admitted into evidence without objection by Respondent, Claimant demonstrated that Respondent had notice of the Utilization Review Committee’s decision. Susan Crawford also testified to several conversations between Claimant and representatives of the Department of Public Aid concerning the decision to discharge Alice Pomeroy.

Although Respondent contends that the notice given it by Claimant was improper, it has not cited any regulation or provision establishing a formal procedure to be followed in such instances.

The Court therefore finds that Respondent received sufficient notice of the patient’s hospitalization and the decision of the Utilization Review Committee, so as to charge Respondent with responsibility for all medical goods and services provided to Alice Pomeroy after the decision of Utilization Review Committee.

Claimant is therefore awarded the sum of $1,308.45.