text:
    (No. 81-CC-0932
    Maurice Woodfork, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 6, 1983.

    Maurice Woodfork, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This is a claim brought by Claimant, Maurice Wood-fork, a resident of Stateville Correctional Center, for personal injuries sustained by him when he was beaten by his cellmate during the early morning hours of July 1, 1980. Testimony was taken in this cause on December 10, 1982, and on March 3,1983.

The facts are as follows:

Prior to the incident in question Claimant lived on 4-Gallery and worked in dining room B, where he was approached by Vice Lord gang members who told him he would have to join their gang. (Tr. 6). On or about June 24,1980, Claimant wrote a letter to the appropriate prison officials explaining that he was having problems with certain residents on his work assignment. On or about June 27,1980, Claimant had an interview with case work supervisor Ron Fleming, in which he told Fleming that he wanted a change of job assignment for his own safety. But he did not tell Fleming that the persons causing the trouble were Vice Lords. (Tr. 6).

“Resident approached me about problems associated with his work detail. Stating he was experiencing some difficulties with residents on that detail. At no time did he indicate who the people were or what organization they might belong to. However, it was mutually decided that it was serious enough to warrant a change of assignment. Further, it was mutually decided that the change of assignment would be from the Dining Room Detail to Park & Terrace.” (Departmental report.)

The above material (hearsay as set forth in the departmental report) was corroborated by Claimant:

“I never did state to him what organization or what people was involved. I didn’t know the people and I didn’t know that they were Vice Lords. Right at the time until I sought out information from other guys that I knew.” (Tr. 7.)

Under administrative procedures in force in the institution, when Claimant’s work assignment was changed his living quarters were also changed. Upon being transferred from the dining room detail to park and terrace detail, Claimant was moved from 4-Gallery to cell house E. In cell house E there was a vacancy in cell 257, a two-man cell, and Claimant was assigned to that cell.

As ordered by the administration, on or about Friday or Saturday, June 27 or 28,1980, Claimant moved himself and his property to his new cell. (Tr. 8-9). When Claimant moved into his new cell his cellmate was not there. But later in the day his cellmate returned to the cell, and Claimant discovered that he was someone whom Claimant had previously noticed associating with members of the Vice Lords in the dining room.

Claimant’s new cellmate, one Preness Crusoe, told Claimant that he was not welcome in the cell because he was not a member of the Vice Lords.

“Well, we had discussion and we started talking about he really didn’t want me in the cell without me being affiliated with no organizations.” (Tr. 9.)
“Well, he just — I don’t remember it word for word, but we exchanged words about me being in his cell and that he really didn’t appreciate me standing there because I wasn’t hooked in the Vice Lord organization or no organization for that fact.” (Tr. 10.)

In a brief filed by Claimant, in response to a motion to dismiss filed by Respondent at an earlier stage of this case, Claimant detailed subsequent events as follows:

“On the morning of June 30th, 1980, between the time of approximately 2:30 a.m. to 4:00 a.m., Claimant, while using the toilet and without warning, was attacked by Resident Crusoe with clear intention to rape Claimant; the struggle insued and the end result merited Claimant’s personal injuries.
During the struggle, Claimant repeatedly screamed to the tower guard for help. None of the security guards in the unit would come to investigate the problem. Claimant at last managed to place Crusoe in a pin position and held him for what is estimated about a half hour, after which Crusoe convinced Claimant for his release and promised to give Claimant no more trouble. Both residents returned to bed, after which Lt. Jordan came to inquire about some noise.
Lt. Jordan inspected several cells before reaching Claimant’s cell, asking if there was any problems, Claimant remained silent and resident Crusoe offered oral denials. Lt. Jordan left, Claimant went to sleep and Crusoe assaulted Claimant in his sleep with a wooden stool to start.”

At the hearing of this case on March 3, 1983, Claimant verified that the account set forth above was correct. The date given by Claimant of Monday, June 30, 1980, is in error, however; prison reports and hospital records show that the attack occurred in the early morning hours of Tuesday, July 1, 1980.

Claimant received severe facial injuries during the attack.

Claimant’s theory of the case is that the State was negligent in,

(1) Assigning Claimant to a new cell without first screening his new cellmate:

“Resident sought relief from hostile gang members of the Vice Lords who were seeking to molest him on his work assignment in dining room. Formal notice was given to Case Work Supervisor Ron Fleming concerning the problem in which Mr. Fleming reassigned resident to another job which required change in his living quarters. This reassignment of living quarters placed resident in direct contact with the foes he sought to escape, making it convenient for a direct sexual attack by his new cellmate at 2:30 in the morning. Resisting this rape attempt resulted to Claimant’s injuries in which damages are currently sought.”

Notice of intention to commence action in the Court of Claims.

(2) Causing Claimant to be transferred to the new cell during the weekend, when case work supervisor, Ron Fleming, was not present in the institution.

With respect to (1), Supervisor Fleming testified that Claimant did not state that he was having trouble with the Vice Lords. He additionally testified that it was not the policy of the institution to screen cellmates:

“Q. Now, Mr. Fleming, does the institution make any background checks before they pick cell assignments?
A. No.
Q. None whatever?
A. No. The institution was set up on a unit management back in ’78 or ’79. At that point, the institution was broken up into three groups. There was a Group 1, a Group 2, and a Group 3.
Group 1 was considered inmates who are doing heavy time, had some violence associated with the offense that they were incarcerated for, and whose background-wise, displinary-wise [sic], were not a very good disciplinary record. Their disciplinary records were not very good.
Then Group 2 was the middle-of-the-road people who, although the records may not have been so good behaviorwise, their offenses were not as serious or their offense could not be serious, but their behavior was not too bad and this is our middle-of-the-road people. Group 3, who were generally the general population of people and that’s the way it was split up.
Unit F and Unit E was Group 1, housing, meaning that all those people that were in those two units were people who were designated by the institution as Group 1, heavyweight.
Q. What group is Mr. Woodfork in?
A. He was in Group 1.
Q. In other words, the institution made some adverse judgment of him because his offense or behavior caused him to be placed in Group 1?
A. Group 1, yes.
Q. Both Mr. Caruso [sic] and Mr. Woodfork were classified as Group 1 people?
A. Yes.
Q. Even though Mr. Woodfork’s term is much lighter than Mr. Caruso [sic]? A. Yes.
Q. Other than dividing the residents into Groups 1, 2 and 3, the institution does not make any further check as to whether a given inmate had been known to be a troublemaker or dangerous?
A. Not when you are doing just cell assignments or job assignments. Only in the case of transfers, in restoration of grade, or security reduction in those three areas, but not in just a cell assignment or a job assignment.”

With respect to (2), Claimant was not attacked until the early morning hours of Tuesday, July 1,1982. He had ample opportunity between the time he met his new cellmate and the actual attack to ask to be put into protective custody or even to be walked to segregation.

Claimant did not feel that he was in danger:

“Claimant had no reason of alarm to think an emergency existed that could not wait until the following morning, as his cellmate Crusoe had again went out to work somewhere in the dietary department and no words had exchanged between them.” (Reply brief, p. 4.)

Moreover, when the guards came to the cell after Crusoe’s first attack on Claimant, Claimant instead of asking to be put into protective custody or to be taken out of the cell remained silent. This point was conclusively verified both by Claimant and by Lt. Jordan at the March 3, 1982, hearing.

While the State has a duty to provide for the safety of Claimant while he is a resident of an Illinois correctional institution, we find Claimant, has completely failed to prove that the State negligently breached its duty in any way.

Claim denied.


source: Caselaw Access Project

author: POCH, J.

license: Public Domain

text:
    (No. 81-CC-1002
    Ernest Kelly, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 19, 1983.

      Order dismissing cause filed May 23,1984.

    Ripplinger & Dixon (George R. Ripplinger, Jr., of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This matter comes before this Court upon the Claimant’s complaint for wrongful imprisonment. Claimant, Ernest Kelly, pleaded guilty to two counts of burglary and was sentenced to probation for those crimes. The Claimant’s prison term, for which he is claiming compensation, extends from an arrest for a violation of his probation. The Claimant has admitted that he was convicted of violating his probation by committing another burglary. Subsequent to his incarceration, an appellate court ruled that there was insufficient evidence to support the charge of probation violation, and the Claimant was released from Menard Correctional Center. Claimant has not received a pardon on the grounds of innocence from the Governor of the State of Illinois, and alleges he does not need one since he was innocent of the crime for which he was incarcerated.

It was well established in this Court that there was . no duty existing at common law for the State of Illinois to compensate individuals wrongfully convicted and incarcerated. Section 8(c) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.8(c)) created a new obligation on the part of the State of Illinois to compensate individuals wrongfully convicted and incarcerated. (Harpstreith v. State (1975), 30 Ill. Ct. Cl. 546.) Section 8 (c) of this Act provides that the State will compensate people where:

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

In the case of Mostafa v. State (1975), 30 Ill. Ct. Cl. 567, this Court made an award to a plaintiff where the appellate court of the State of Illinois reversed his conviction of murder without remanding for a new trial and the Claimant received a pardon from the Honorable Governor Daniel Walker, which pardon was provided to the Claimant on the grounds that he was innocent of the crime of murder. In the case of Anderson v. State (1978), 32 Ill. Ct. Cl. 643, this Court refused to provide an award for the Claimant who did not receive a pardon from the Governor, stating that such pardon was issued on the grounds of innocence for the crime in which he had been imprisoned. This Court found that:

“Such failure to prove the existence of a pardon results in failure of the Claimant’s complaint to state a cause of action.”

Clearly it could not have been the intent of the legislature to compensate everyone who is released from prison by an appellate court. This is particularly true where the criminal was released on a technicality rather than on genuine innocence. A pardon from the Governor based on innocence is a condition precedent to recovering in the State of Illinois for time served in the penitentiary unjustly. Claimant, Ernest Kelly, has failed to plead and prove that he has received a pardon from the Governor of the State of Illinois; clearly his cause of action fails.

It is hereby ordered that this claim be, and the same is, dismissed with prejudice.

ORDER DISMISSING CAUSE

This cause having come for consideration and the Court being duly advised in the premises:

Finds, that the Claimant was ordered to file his brief by October 30,1983, and has failed to do so.

It is hereby ordered, that this cause is dismissed with prejudice.


author: Holderman, J.

text:
    (No. 81-CC-1089
    Inez Hart, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 23, 1983.

    Roseman & Morton Law Clinic, for Claimant.
    Neil F. Hartigan, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant in this cause seeks damages for unreasonable termination of her employment by the Illinois Fair Employment Practices Commission. It is Claimant’s contention that she was unreasonably terminated on June 30, 1976, and did not regain employment until February 1, 1977.

Claimant’s earnings were $11,500.00 per year at the time of her discharge and the conciliation agreement called for the determination of damages to be paid to Claimant were not to exceed $6,000.00.

It is Respondent’s position that Claimant was paid unemployment compensation for the subject time period and that payment should be set off from any claim that she may have. Respondent also contends that Claimant did not actively seek re-employment, pursuant to the guidelines set up in Chamness v. State (1979), 33 Ill. Ct. Cl. 200.

The uncontradicted evidence is to the effect that the Claimant did, upon her dismissal, seek employment with the United States government through applications made at the Dirksen Office Building in Chicago, by filing applications for employment with the University of Chicago, by applying for positions at the Continental Bank, and by responding to various ads and solicitations she found in local newspapers and on employment bulletin boards.

Claimant’s testimony as to the various attempts at these locations was not disputed by evidence submitted by the Respondent. The evidence reflecting Claimant’s attempts to secure employment were all oral but they were undisputed.

The record, which was undisputed by Claimant, shows that Claimant received $3,510.00 in unemployment benefits from the State of Illinois for the period from July 1, 1976, to February 1, 1977.

Respondent’s position is based on the decision in the Chamness case wherein the Court, citing the opinion in the case of Sullivan v. State (1967), 26 Ill. Ct. Cl. 117, laid down the following rule:

“During a period of illegal removal from office, Claimant must diligently seek employment, and do all in his power to mitigate damages.”

It is the Court’s opinion that the present case does not fall within the rule laid down in the Chamness case. Even though the record reflects only Claimant’s testimony as to the attempts she made to secure employment, none of her testimony was disputed by Respondent. Claimant testified that on at least 14 different occasions she sought employment at two different agencies and also made weekly attempts by filing resumes and applications in response to ads that appeared in local newspapers.

The Court finds that based on an annual salary of $11,500.00 per year, Claimant’s loss of earnings was $6,708.00. A conciliation report calls for damages not to exceed $6,000.00. With a set-off of $3,510.00, it is the Court’s opinion that Claimant is entitled to the amount of $2,490.00.

An award is hereby entered in favor of Claimant in the amount of $2,490.00.


text:
    (No. 81-CC-1887
    Armbruster Manufacturing Company, Claimant, v. The State of Illinois, Respondent.

      Order filed January 23, 1984.

    Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is a claim for the value of two tents owned by Claimant and leased to the State of Illinois. The tents were stolen during the term of the lease and Claimant charges the loss was due to the negligence of Respondent. The value of the tents is stipulated to be $2,378.20.

Claimant and Respondent entered into a written lease agreement on July 24,1980. The lease provided that Claimant deliver and erect the tents on Friday, September 5,1980, for the Secretary of State’s use at the antique auto show at a park near Springfield, Illinois. The lease also provided for Claimant to dismantle and remove the tents on Monday, September 8, 1980.

The purchase order issued by the Secretary of State’s office for payment of the lease price provided for the same lease period. The tents were delivered by Claimant and erected on September 5, 1980. When Claimant returned to remove the tents on September 8, it was discovered they had been stolen by parties unknown sometime after the Secretary of State’s office had ceased using them on the evening of Saturday, September 6. The facts are undisputed that Respondent provided no security or protection for the tents after the Secretary of State’s personnel finished using them on Saturday evening, September 6.

By delivering the tents to Respondent under the written lease agreement, which provided the tents were to be returned to Claimant in the same condition, the lease agreement created a bailment. (People v. Moses (1940), 375 Ill. 336, 31 N.E.2d 585; Nassar v. Smith (1974), 21 Ill. App. 3d 462, 315 N.E.2d 692.) The rule upon bailment is that if Claimant proves the delivery of the tents in good condition and their non-return by Respondent, Claimant has made a prima facie case that Respondent has breached its duty as bailee to exercise reasonable care for the property. It then becomes incumbent upon Respondent to produce and present evidence that its agents exercised due care. If Respondent fails to do so, the prima facie case is sufficient to support an award for Claimant. Watson v. Byerly Aviation (1972), 7 Ill. App. 3d 662, 288 N.E.2d 233; Allis-Chalmers Corp. v. Pekin Foundry (1975), 31 Ill. App. 3d 1005, 335 N.E.2d 97.

The only evidence adduced by Respondent was that it believed the lease term was only until the end of the auto show — that is, until Saturday evening. Therefore, Respondent provided security only until that time and then simply abandoned the tents. However, Respondent’s own purchase order, as well as the signed lease agreement, clearly provide a term ending on Monday, September 8,1980. Respondent presented no evidence of its due care for the safety of Claimant’s property.

Award is hereby entered in favor of Claimant in the amount of the stipulated damages of $2,378.20.


author: Hqlderman, J.

text:
    (No. 81-CC-2065
    Loretta F. Nolan, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 3, 1983.

      Order on denial of rehearing filed October 24,1983.

    Stanley L. Morris, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Hqlderman, J.

This matter comes before the Court upon motion of Claimant for default judgment. Claimant’s motion for default judgment relies upon Rule 18 of the Rules of the Court of Claims. Briefs have been submitted by both Claimant and Respondent.

Claimant’s motion for default judgment sets forth that Claimant filed her brief in the instant cause on October 15, 1982, and under Rule 18 of the Rules of the Court of Claims, Respondent’s brief was due no later than 60 days after Claimant’s brief was filed, unless an extension of time for filing such brief had been requested and granted, which was not a fact in the present case. Under Rule 18, the brief of Respondent was due on December 15, 1982, but was not filed until after Claimant’s motion for default judgment on June 22, 1983. Respondent finally filed its brief on July 6, 1983.

Claimant is correct in its interpretation of the rules that Respondent was negligent in not responding in the time required by Rule 18. The Court is of the opinion, however, that the fact that Respondent did not file its brief within the time set forth in the rules does not create a situation where it is mandatory for the Court to enter a judgment in favor of Claimant. It is the position of the Court that all of those matters should be taken into consideration in entering its final order.

The facts in this case, briefly, are as follows. On September 24, 1979, Loretta Nolan, Claimant, was attending a meeting in Springfield for her employer, which is a teachers union and not an agency or department of the State of Illinois. This union was apparently holding committee meetings and some of the meetings were in the Stratton Office Building, Springfield, Illinois.

Claimant testified at the hearing on September 16, 1982, that she did not have a meeting in the Stratton Office Building, but was walking her friend up to the dark building to make sure there was a way for her friend to get into the building. Claimant testified she first tried the door on the right hand side of the building and, when that door did not open, she and her friend walked across the patio, or porch, of the building to the door on the left. While approaching that door, she tripped over a handicapped ramp and injured her ankle. She further testified she had not been to Springfield before and was not familiar with the Stratton Office Building. She testified she was walking at her normal pace which was a pretty good pace and that she was not looking down at her feet at the time she fell. She stated the area in question was completely dark.

Mr. Joe Kohorst, division chief under the Secretary of State for the department of physical services, testified as to maintenance and construction of the area in which Claimant fell. He testified the building was lit by recessed lighting fixtures and that they were spaced with approximately 25 feet centers. There were two sets of lights immediately over the handicapped ramp, and each contained 150-watt light bulbs. Those lights had been installed in 1953 and were the same lights in place in September 1979. Mr. Kohorst testified that the west portico of the Stratton Office Building has two sets of double doors, one at the north end and one at the south end. Both of these doors were identical. Both had paraplegic ramps in 1979.

The ramps in question were described as being “made up of bituminous material, give or take a few inches, six foot wide, seven and one half feet long, and the highest point of five and a half inches to the door entrance was up with the lowest step and tapers down to zero inches.”

It is a requirement for State buildings to have these handicapped ramps, and their purpose is to allow handicapped people to enter the Stratton Office Building. Mr. Kohorst further testified that it was not unusual to find these ramps at State buildings.

There were not any handrails on the ramps in question at the time of the accident, and there apparently were no standards for the use of such handrails at the time the ramps were built.

Prior to September 24, 1979, Mr. Kohorst had not received any complaints concerning the sufficiency of the lighting in this area and he is the person to whom such a complaint would have been made. He testified that prior to September 24, 1979, there had been no complaints of injuries because of insufficient lighting or because of the ramp in this area. He testified that the ramp had been performing adequately prior to September 24, 1979.

Mr. Kohorst further testified that at the present time when handicapped ramps are constructed, there is a requirement that there be a handrail. He testified that the lights on this porch or portico are turned on manually from a main switch panel, that they are supposed to be turned on at sundown and turned off at 9:00 p.m., and that he did not know if the lights were turned on the evening of the accident.

The testimony of Claimant is that she did not have a meeting in the building where the accident occurred but that she was escorting a friend to this building where the friend had to attend a meeting. Claimant was on the premises of the Stratton Office Building for the purpose of seeing that her fellow delegate and officer of the Illinois Federation of Labor safely gain access to the building for a meeting.

Claimant was, in that situation, an invitee. The duty of the State to an invitee is reasonable care and to warn of any defects not readily apparent as contrasted to the duty of the State to a licensee, a mere visitor to the premises, which is simply not to wilfully or wantonly injure the licensee. Welch v. State (1964), 24 Ill. Ct. Cl. 498; Burris v. State (1963), 24 Ill. Ct. Cl. 282.

The question therefore as to the liability of Respondent is whether the State was negligent in constructing the ramp for the benefit of paraplegics who might need the ramp to get into the Stratton Office Building and whether such a ramp was in itself an act of negligence that would create liability on the part of the State.

The fact that this ramp had been in existence since the construction of the Stratton Office Building, which was at least 16 years prior to the date of the accident, supports the Respondent’s position that the ramp in itself is not a negligent act on the part of the Respondent. The fact that in all these years there have been no accidents reported in the use of the ramp strengthens Respondent’s position that such a ramp is not an act of negligence.

This Court has repeatedly held that the State is not an insurer against accidents that may occur by reason of the condition of a State highway. (Bloom v. State (1957), 22 Ill. Ct. Cl. 582, 584.) The same rule is applicable to sidewalks maintained by the State. The State has a duty to exercise reasonable care in the maintenance of its highways so that dangerous conditions likely to injure persons lawfully there shall not exist. Sewell v. Board of Trustees of Southern Illinois University (1979), 32 Ill. Ct. Cl. 430, 433.

This Court has also held on many occasions that for Claimant to recover damages arising from defects in the roadway (or sidewalks), the Claimant must prove the State was negligent and that such negligence was the proximate cause of the injury. This Court has also held that in order for Claimant to recover she must prove that the State had actual or constructive notice of the defect that caused the injury. Weygandt v. State (1957), 22 Ill. Ct. Cl. 478, 485.

The record in this case is completely devoid of any actual or constructive notice of any defect in the area where the accident took place. The mere fact that a ramp had been built for the convenience of that part of the public that had need of such a ramp did not, in the opinion of the Court, constitute a defect that would make the State responsible for the accident such as the one in this case.

Claimant has suggested that a handrail on the ramp in question would probably have prevented the accident that occurred. That is pure conjecture and the fact that handrails were not required at the time of the construction of the building is a strong indication that such an item was not necessary.

This Court has held on many occasions that before recovery can be had, Claimant must prove the State had actual notice of a defect in the roadway (or sidewalks), or in a case of constructive notice, each case must be decided on its own facts. In the present case, Claimant has not proved that a dangerous condition existed or that the State had knowledge or should have known of any dangerous condition. There had been no previous accidents involving the ramp even though it had been in existence for a number of years. (See Sewell, supra, at 433.

It is the opinion of this Court that Claimant’s motion for default judgment should be denied and Claimant, having failed to show there was negligence on the part of Respondent, should be denied an award.

Case dismissed.

ORDER ON DENIAL OF REHEARING

Holderman, J.

This matter comes before the Court upon petition of Claimant for rehearing and objection to said petition by Respondent.

Claimant, in her petition for rehearing, states that the Court failed to consider the effect of the absence of lighting at the scene of Claimant’s injury. The Court, in its opinion of August 3, 1983, referred to the lighting conditions and is of the opinion that its dismissal of this cause is correct.

It is hereby ordered that Claimant’s petition for rehearing be, and the same is, denied.


text:
    (No. 81-CC-2068
    Corey Michael Noonen, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 24, 1983.

    Bruce R. Becker, for Claimant.

      Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant in this cause alleges that on May 26, 1980, which was Memorial Day, he was at the Jubilee College State Park in Peoria County, Illinois. He and his girl friend were walking on a public pathway in the park when they came upon a large Malamute dog he had never seen before. He reached down to pet the dog and was bitten on the face. The dog was evidently chained to a tree although there is some conflict in the evidence as to this point.

The issues are as follows: (1) the negligence of the Claimant; (2) the notice of the State; (3) exhaustion of remedies; (4) the credibility of the Claimant; (5) the application of the Recreational Use of Land and Water Areas Act (Ill. Rev. Stat. 1983, ch. 70, pars. 31-37); and (6) admissibility of departmental reports under Rule 14 of this Court.

The evidence shows that Claimant was in the park playing ball with other individuals. The evidence is uncontradicted that there was a large crowd in the park on the day in question.

Claimant alleges that the dog was chained to a tree within sight of the park ranger station and that the chain was approximately 15 feet long. There was never any actual measurement of the chain in question. It is Claimant’s position that the State was negligent in allowing the dog to be in the park on such a long leash. The evidence is also uncontradicted that the dog was in the park on a leash longer than allowed by park regulations.

Claimant was bitten on the mouth, on the lower left side of his face, and required medical care and treatment for some period of time. At the time of the hearing in this matter, Claimant was still experiencing numbness in his lips which caused him to drool. He testified he could no longer whistle and he could not engage in the act of kissing without difficulty. Claimant, who had been working at a restaurant prior to this incident, had to have a change of duty because the restaurant owner did not want to have him in the portion of the restaurant where food was being served because of the condition of his face. Claimant testified that during the period of time he was under the doctor’s care, he did not have his face covered by bandages because the doctor would not permit bandages to cover the scars and, consequently, he was embarrassed when in a crowd.

Claimant’s attorney takes the position that the State was negligent in not properly patrolling the park and protecting the public from the dog.

The State takes the position that Claimant was negligent in stopping to pet the dog which he had never seen before and that there was no exhaustion of remedies by Claimant. The State also questions the credibility of Claimant in this cause. The State calls attention to the Recreational Use of Land and Water Areas (Ill. Rev. Stat. 1983, ch. 70, pars. 31-37), and to the departmental report (Rule 14). The departmental report dealing with this incident states as follows:

“On 05-26-80 sometime between 2-4 p.m., Officer Baile received a complaint from a female subject in Jubilee Park. She told Baile a man had been bitten by a dog near the office. She refused to identify herself to Baile. Baile went to the location and talked to three persons. One witness stated the incident had happened a half hour ago. One witness stated the dog was tied up and the man jumped at the dog, and got bit in the face. Another witness stated the dog was loose and attacked the man. Another witness stated the dog was tied up but broke the leash when the man jumped at it. All of the persons stated the man that got bit was intoxicated. Officer Baile also noticed that all three witnesses were highly intoxicated. None of the witnesses would identify themselves to Baile, but one did give Baile a license number. That number was registered to a 90 year old female from Bloomington, 111. The witnesses had stated the person who owned the dog left in that vehicle and was a young man. Officer Baile does not remember the license number, but does remember that the description of the car did not match the registration information. Also, Baile was told that the man bitten had been taken to the hospital by a friend. Baile then contacted Rabies Control Officer James Fox, and advised him of all the information. He stated he would follow up on the case. Baile did not hear from Fox until 01-05-81. He told Baile he was unable to ever contact the person who was bitten. He said he left messages at his home and work but he never returned calls.”

The report was introduced into evidence over the objections of Claimant’s attorney, although under Rule 14 of this Court “all departmental reports made by any officer thereof relating to any matter or case pending before the Court shall be prima facie evidence of the facts set forth therein. . .”

The State also raises the question as to whether or not Respondent had either actual or constructive notice of the dog being in the park. This is an essential element in this case. The record is completely silent as to the length of time the animal in question had been in the park and it is also silent as to whether Respondent knew, or should have known, that the dog was in the park. As stated above, this was a holiday and the park had a large crowd in this area.

There is also a complete lack of evidence as to whether there was anyone in the ranger station on the day in question or, if there was, whether they were in a position to see the dog in the park.

In Wightman v. State (1978), 32 Ill. Ct. Cl. 546, the Court laid down the rule as to what Claimant must prove before he can recover. The Court stated that visitors to State parks are invitees to whom the State owes a duty of reasonable care in maintaining the premises and that 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. See also Dumermuth v. State (1966), 25 Ill. Ct. Cl. 353, 356; Kamin v. State (1953), 21 Ill. Ct. Cl. 467.

To recover on a claim, Claimant bears the burden of establishing by a preponderance of the evidence that Respondent breached its duty of reasonable care.

In summation, we have the following facts. A dog was chained to a tree in Jubilee College State Park on Memorial Day. Claimant was injured when he stooped to pet the dog with whom he was totally unacquainted. There is no evidence of any kind or character to show that Respondent knew the dog was in the park, nor is there any evidence to show how long the dog had been there. As to whether the dog was vicious, the fact is that Claimant was the only one who was injured by the dog.

The departmental report states that a park ranger interviewed three eyewitnesses, all of whom were intoxicated, who told three different stories — one stated the dog was tied up and the man jumped at the dog and got bit in the face, the second witness stated the dog was loose and attacked Claimant, and the third said the dog was tied up but broke the leash when Claimant jumped at it. All three witnesses stated Claimant was intoxicated and refused to identify themselves so they could be called as witnesses.

Respondent raises the question as to whether or not Claimant exhausted his remedies as required by the rules of this Court. The transcript of the record shows that on cross-examination Claimant was asked if he had filed suit against the owner of the dog, and he replied, “It wouldn’t have done us any good.” In response to a further question, he answered that he had never filed suit against the owner although he did know the owner’s name. To casually brush away the rule that there has to be an exhaustion of remedies before recovery in the Court of Claims by stating “it wouldn’t have done us any good” to file suit against the dog’s owner, appears to the Court to be an outright elimination of this rule. This rule, in the opinion of this Court, requires much more direct evidence to show that such testimony does not satisfy the rule requiring an exhaustion of remedies.

It is the Court’s opinion that the proximate cause of this unfortunate incident was the act of Claimant himself when he reached down to pet a dog that was completely strange to him. It is an interesting fact to note that the testimony shows the park was crowded and yet the only incidence of misbehavior from the dog came when Claimant bent down to pet it. None of the other visitors to the park that day were in any way attacked by the dog and this is strong evidence that Claimant was doing something the rest of the visitors to the park did not do.

It is the Court’s opinion that Respondent was free from negligence of any kind or character. Claimant has failed to show that Respondent did not give him the same degree of protection that the general public was given.

It is abundantly clear that without any showing of either actual or constructive knowledge by Respondent, that to find Respondent guilty would result in making Respondent an insurer of the safety of all persons who use the park. This Court has repeatedly held that it is not an insurer but only owes a duty of reasonable care.

Award denied. Case dismissed.


author: Roe, C.J.

text:
    (No. 81-CC-2165
    Virginia Griffin, a minor, by Kent Griffin, her father, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 8, 1983.

    Edward A. Woller, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This is a claim brought by Virginia Griffin, a minor, by her father, Kent Griffin. The minor Claimant seeks damages from the State of Illinois for injuries received by her as a result of an incident that occurred on October 19,1980, on the grounds of the Kewanee National Guard Armory in Kewanee, Illinois. Claimant was playing on piles of leaves on the Armory grounds and cut her leg on broken glass which was hidden under the leaves.

From the evidence presented, it appears that on October 19, 1980, the seven-year-old Claimant was visiting her grandmother along with her mother and four other children. Her grandmother’s home is located three houses west of the Armory on First Street in Kewanee. The Claimant, along with the other children, proceeded down First Street and began playing in the area directly south of the Armory storage building. Specifically, the children were playing in a grassy area lying between the First Street sidewalk and a fence located approximately seven feet north of the sidewalk. The fence surrounded the Armory storage area. The area between the fence and sidewalk is Armory property and was the occurrence site.

The minor Claimant, at some point, jumped onto a pile of leaves that had accumulated in the area. Buried beneath the leaves were pieces of broken glass, apparently from bottles thrown from passing cars. While playfully sliding on the leaves, Claimant’s right leg was rather severely cut by a piece of the hidden glass. There is no question that Claimant has suffered serious and permanent injuries as a result of the injury to her leg. The issue in this case is liability.

As we have said many times, the State is not an insurer against accidents that occur on its property. In order for Claimant to recover, she must prove that the State was negligent and that such negligence was the proximate cause of her accident and resultant injuries. (Bloom v. State (1957), 22 Ill. Ct. Cl. 582.) In this case, Claimant attempts to demonstrate negligence by the State and impose liability through the doctrine of attractive nuisance, because in this case the Claimant is a trespassing child.

In order to recover under the attractive nuisance doctrine in this State, it has historically been held that Claimant must show: (1) that the premises under the control of the defendant were maintained in a way that was attractive to children of tender years and defendant knew, or should have known, that children frequented the premises; (2) that a dangerous agency or condition for children existed on the premises; (3) that defendants knew, or should have known, of the dangerous condition or agency; (4) that defendant failed to remedy or correct the dangerous condition or agency, or to protect children from the danger; and (5) that the dangerous condition caused injury to the child. See Andrews v. General Contracting Company (1962), 37 Ill. App. 2d 131, 185 N.E.2d 354.

The test enumerated above has been refined somewhat, so that for all practical purposes the application of the rules of ordinary negligence cases actually govern the outcome of suits by child trespassers. The supreme court in Kahn v. James Burton Company (1956), 5 Ill. 2d 614, 126 N.E.2d 836, and the appellate court in Wilinski v. Belmont Builders (1957), 14 Ill. App. 2d 100, 143 N.E.2d 269, has said, for example, that the element of attractiveness is significant only insofar as it is indicative that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child. Nor is it an automatic bar that the dangerous condition was not purposely placed by the Respondent on the area in question. See Wilinski, supra. It is very relevant, however, on the question of foreseeability.

There is no question that Claimant was injured by a dangerous condition existing on Respondent’s property. The more difficult issue is whether the Respondent knew, or should have known, of the dangerous condition.

Although we are very sympathetic toward the plight of the Claimant, we feel this case must be resolved in favor of the State. The evidence fails to demonstrate that the State knew, or should have known, of the dangerous condition as it existed on October 19,1980. On this point, the most that can be said from the proofs is that there were prior occasions when bottles were apparently thrown from passing cars traveling on First Street near the Armory area in question. Broken glass on occasions prior to the date of the occurrence in question was found on the accident site by Armory employees. and was cleaned up when it was encountered during routine maintenance procedures. In fact, the evidence was quite clear that the Armory grounds, including the accident location, were well maintained.

Blowing leaves during the autumn season of course are not unusual. Testimony of Armory maintenance men indicated that leaves were routinely raked during the autumn season. As a matter of fact, one Armory janitor testified that the accident area was inspected and cleaned as recently as the week preceding the accident. No glass was found at that time.

It is not necessary to discuss the evidence in detail. It suffices to say that the Armory grounds were consistently maintained, that broken glass was sometimes encountered and sometimes it was not. There was no evidence presented that on October 19,1980, the State knew of the dangerous condition nor was it shown that the State should have known about that condition. The sporadic accumulation of blowing leaves and the sporadic breaking of glass in the area cannot stand as notice to the State of the dangerous condition which existed on October 19, 1980. To rule otherwise would require the State to inspect, rake, and otherwise maintain its grounds literally on a continuing basis. The State’s lack of control over the happening of the two events, in this case, negates the necessary element of foreseeability as to this particular occurrence.

Simply stated, the prior incidents of bottle throwing and leaf accumulation are not sufficient to charge the State with knowledge of the existence of the dangerous condition which led to Claimant’s injuries. The cases cited by Claimant in her brief are not controlling here. In those cases the Claimants clearly knew or should have known of the dangerous condition existing on the premises within their control. See, for example, Kahn, supra; Wilinski, supra; Andres, supra; Runions v. Liberty National Bank (1957), 15 Ill. App. 2d 538, 147 N.E.2d 380; Kleren v. Bowman (1957), 15 Ill. App. 2d 148, 145 N.E.2d 810; Melford v. Gaus & Brown Construction Company (1958), 17 Ill. App. 2d 497, 151 N.E.2d 128.

For the foregoing reasons it is hereby ordered that this claim be, and hereby is, denied.


text:
    (No. 81-CC-2195
    Thomas J. Sneed and Barbara A. Sneed, Claimants, v. The State of Illinois, Respondent.

      Opinion filed April 20, 1983.

      Order on denial of rehearing filed January 23,1984.

    Thomas J. Sneed, pro se, for Claimants.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is a cause of action brought pursuant to section 8, paragraph (d) of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.8 (d)), for property damage sustained by Claimants as a result of actions by a contractor for the State of Illinois in removing dirt from a roadway adjacent to Claimants’ property permitting water from a flood to enter upon Claimants’ property and destroy Claimants’ trees and fruit crops.

The facts in this case, as disclosed by the record, are as follows. Claimants owned property directly south of a road called Sears Roebuck Road. Until the removal of the dirt by Respondent, it is evident from the record that the natural flow of water was not across Claimants’ property. The record is completely devoid of any information as to when this road was constructed, who constructed it, or how long it had been constructed. The evidence does show that it had been in existence for a considerable period of time and, as a result of its construction, it changed the natural flow of water and afforded protection to Claimants’ property so that they were not flooded at times when they might otherwise have suffered damage. The evidence is clear that construction work, under the control of Respondent, removed part of this road and, as a result, flood water entered upon Claimants’ property and caused the damage complained of.

It is Respondent’s contention that the State has no obligation to protect unnatural barriers such as the Sears Roebuck Road from the actions of its contractors, thereby changing the flow of water. Respondent cites law to the effect that the owner of a dominant estate is entitled to the uninterrupted flow of surface waters from its property to lower or servient lands. There is no question but that this is the law of the State of Illinois. In this case, however, we find that the natural flow of water had been altered by the construction of the road in question by parties unknown as far as this record is concerned and the period of its existence is also unknown.

Respondent did not cite any law to the effect that the removal of a barrier such as the one in the present case which caused Claimants’ damage is allowable. With the absence of such citations, it appears the action of the State was the proximate cause of the damage in question.

The record is clear that Claimants’ personal property, trees and crops were damaged and Claimants were required to do extensive work with their own equipment to repair the damage and restore dirt to the road area.

The Court cannot accept Respondent’s contention that it may destroy or alter “unnatural impediments to water flow” without regard to the consequences to persons and property owners who relied on the presence of such impediments to natural water flow to protect their property therefrom. Respondent did not offer any evidence or explanation showing it had the right to remove that portion of the Sears Roebuck Road and did admit that the removal was by Respondent’s contractor. The only evidence submitted was to the value of the property and the damage sustained by Claimant which was in the amount of $2,170.00.

An award is hereby entered in favor of Claimants in the amount of $2,170.00.

ORDER ON DENIAL OF REHEARING

This matter comes before the Court upon motion of Respondent for rehearing.

Under date of April 20, 1983, an award was entered by this Court in favor of Claimants. Oral argument was held in this cause on November 8, 1983.

The Court, having heard oral argument and read the briefs submitted in said cause, is of the opinion that its original order granting an award in favor of Claimants was correct.

Respondent’s petition for rehearing is hereby denied and the original award in the amount of $2,170.00 is confirmed.


text:
    (No. 81-CC-2583
    Economy Fire & Casualty Company, as subrogee of Yorktown Insurance Agency, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 8, 1984.

    Orner, Wasserman & Moore, Ltd. (Esther J. Schwartz, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Edward C. Hurley III, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This claim is for property damages due to an automobile accident which occurred on January 8, 1981, along Skokie Boulevard at or near its intersection with Oakton Avenue in the city of Niles, county of Cook, and State of Illinois. The Claimant’s automobile was being driven by an agent of the Claimant, Gordon Faller. The Respondent’s vehicle was being driven by an employee of the State of Illinois, Morton Friedman. Claimant has brought this tort action under section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.8(d)) seeking to recover property damages in the amount of one thousand one hundred twenty seven and 25/100 ($1,127.25) dollars. Claimant, Yorktown Insurance Agency paid two hundred ($200.00) dollars, and Claimant, Economy Fire & Casualty paid nine hundred twenty seven and 25/100 ($927.25) dollars.

Southbound Skokie Boulevard approaching Oakton Avenue is four lanes. The far left lane is a left-turn-only lane, the middle two lanes are for through traffic, and the far right lane is a right-turn-only lane. This right-turn-only lane only existed for approximately three quarters of a block prior to Oakton Avenue.

The testimony at the trial was that both vehicles were southbound in the right hand middle or through lane. The Claimant’s vehicle entered into the far right-hand lane (right turn only) shortly after said lane came into existence. The Respondent’s vehicle, which was in front of the Claimant’s vehicle, entered into the right-turn-only lane sometime later. The Respondent’s vehicle came to a stop and was struck from behind by the Claimant’s vehicle.

The Claimant testified that he was proceeding southbound on Skokie Boulevard at approximately 20 to 25 miles per hour in the right-turn lane intending to make a right turn onto Oakton Street. Claimant further testified that Respondent’s vehicle swiftly changed lanes and suddenly came to a stop in the right-turn lane causing Claimant’s vehicle to rear end Respondent’s vehicle.

Respondent testified that he pulled into the right-turn lane and a vehicle in front of him stopped. Respondent stopped and was struck from behind by the Claimant.

Rear end collisions are generally decided on the facts of each case. Obviously, each driver in a situation such as set forth in the instant case has certain duties. A driver approaching another vehicle from the rear has a duty to maintain a safe lookout and must take into account the prospect of having to stop his vehicle suddenly. (Police v. Phillips (1980), 86 Ill. App. 3d 677, 408 N.E.2d 348.) Furthermore, a motorist has a duty to signal for a turn or lane change and the further duty of not making such a turn or a lane change until it is reasonably safe to do so. (Ill. Rev. Stat., ch. 95½, par. 162A; Corder v. Smythers (1967), 86 Ill. App. 2d 37; Piper v. Lamb (1960), 27 Ill. App. 2d 99.) Therefore, it does not follow that every person who is struck from the rear is entitled to a judgment as a matter of law. Ryon v. Javior (1979), 69 Ill. App. 3d 946, 387 N.E.2d 936.

In the instant case, the evidence shows that the Respondent changed lanes when it was not reasonably safe and that the Claimant did not maintain a proper lookout to avoid the accident in question. Thus, the Claimant’s comparative negligence is attributed to the accident. The Court finds that the Respondent was 25% negligent and the Claimant was 75% negligent. The evidence is not in dispute that the Claimant incurred one thousand one hundred twenty seven and 25/100 ($1,127.25) dollars in damages. The award herein, therefore, shall be 25% of said sum or two hundred eighty one and 81/100 ($281.81) dollars.


text:
    (No. 82-CC-0035
    Charles J. Spencer, Claimant, v. The State of Illinois, Respondent.

      Order filed March 7, 1983.

      Order filed September 19, 1983.

      Opinion filed December 7, 1983.

    Leahy & Leahy, for Claimant.
    Neil F. Hartigan, Attorney General (William E.

      Webber, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Roe, C.J.

This cause, having already come on to be heard, and this order being issued nunc pro tunc.

On April 2, 1982, the Claimant by counsel filed a motion to recover certain costs which he was required to incur unnecessarily by certain inadvertent actions by the Respondent. The motion was heard and decided in the Claimant’s favor from the bench during the course of oral argument on his case in chief on January 11, 1983. No post-judgment pleadings having been filed, the decision became final on February 11,1983. However, no written order has been heretofore issued. Because the award made is not contingent upon our decision of the merits of Claimant’s case we issue this written order now to facilitate payment without further delay.

Wherefore, it is hereby ordered that Claimant be, and hereby is, awarded the sum of $131.94 in conformity with our decision on January 11, 1983.

ORDER

Holderman, J.

This matter comes before the Court upon the Claimant’s motion for judgment which was filed on September 30, 1982. Oral argument was had in this matter at the request of the Claimant in January of 1983.

The grounds for the motion were stated as follows:

“1. Hearing was held in this matter on April 27, 1982.
2. Claimant’s Brief was filed on June 25,1982.
3. Respondents’ Brief was due on August 24,1982.
4. Respondents’ have filed no Brief nor has any extension of time been granted Respondents.”

Claimant then requested judgment for $32,146.00 be entered against the Respondent.

We sympathize with the Claimant’s predicament. It is very unusual for the Respondent not to file a timely brief in this Court and even more unusual for an extension of time to be requested. However, failure to file a brief or a tardy filing of a brief is not grounds for summary or default judgment. In such situations it is this Court’s policy for the commissioner to proceed with his report to the Court without benefit of the brief, i.e. the Court will proceed to rule on the merits without waiting (and usually without benefit of knowing the Respondent’s position). If a later brief is filed before a decision is rendered, it is subject to being stricken in the Court’s discretion upon appropriate motion by the other party. We have considered this issue on numerous occasions and it is our opinion that this approach is fair to the Claimant and not unduly harsh on the taxpayers of Illinois.

In many cases (apparently the case at bar included), out of frustration a party makes a motion for relief in the nature of default or summary judgment. In such a situation the parties unknowingly are causing further delay. The commissioner who heard the case and is familiar with the proceedings and issues has no authority to rule on the motion. The motion has the effect of taking the case out of the commissioner’s hands and causing it to be assigned to a judge who is called upon to make a decision without benefit of the report of the commissioner. The whole purpose of having commissioners is then for naught, and the judges’ backlog becomes greater.

In summary, we construe Claimant’s motion to be in the nature of one for default judgment and as such, it is hereby denied. If we were to construe it as a motion for summary judgment, it would be pointless because the hearing has been held and the case is ripe for a decision. It appears that all Claimant was seeking by filing the motion is a decision from the Court on the merits. We have heard oral argument on the merits and will consider those arguments in conjunction with the commissioner’s report when it is filed. The commissioner is directed to prepare and file his report without undue delay now that the motion at bar has been decided.

OPINION

Holderman, J.

This matter comes before the Court as a result of a claim filed by Claimant Charles J. Spencer. Claimant was employed as a correction officer trainee at the Menard Correctional Center by the Department of Corrections on May 14,1976. He was injured and obtained a leave of absence from his employment on August 30, 1976. This leave of absence was without pay, and was extended from November of 1976 at various intervals through January 24,1978. On October 18,1977, Claimant requested, in writing, an extension and, upon the granting of said extension, the request contained a handwritten note stating, “This is the final leave I will approve — 90 days,” and was signed by Warden M. P. Lane.

On January 23, 1978, Claimant was advised by Clearlyn Giordana, personnel officer, that due to Warden Lane’s order, there could be no extensions of his leave of absence. On March 16,1978, Ms. Giordana wrote Warden Lane asking his permission to either terminate Claimant or extend his leave of absence. Warden Lane replied, “If we do not have an extension, then I suggest termination.”

The evidence indicates that Claimant received a copy of a personnel action form to terminate his employment on March 17,1978, with the termination backdated to be effective January 25,1978. This was the last communication received by Claimant from the Department. He was not asked to return his uniforms, identification cards, or his number tags. His doctor did not release him to return to work until the following August.

There is considerable disputed testimony as to the form and signature for termination. Claimant relies on the fact that the actions of his superior were improper and this brought about his termination. Specifically, he was told the warden would grant no further leave extension, placing him in a position where applying for the same would be a useless act. He was then terminated because he had not filed for an extension.

It is Respondent’s position, which was argued strenuously, that this dispute should fall within the jurisdiction of the Civil Service Commission, which position is opposed by the Claimant. It is his contention that trainees do not fall within the jurisdiction of the Civil Service Code, nor its protections. His position would seem to be supported under section 8b.17 of the Personnel Code (Ill. Rev. Stat. 1983, ch. 127, par. 63b108b.17).

It would therefore follow that the specific issue confronting this Court is what status or rights a trainee has when employed by the State of Illinois. It would appear from a reading of the Personnel Code that a trainee and probationary employee enjoy a very similar status, the only difference being that a probationary employee already has acquired the skills necessary for a particular job and a probation period is allowed to see if he is adaptable and proper for the job. A trainee, however, would seem to be a person who enters into a probationary period of training which may or may not result in permanent employment once he is trained for a particular job description.

The Department, in this case, in effect said we cannot continue you as a trainee if you are going to continue to take these extensions and, for whatever reasons, notified Claimant that his employment was terminated as of March 1978. The backdating of his termination had no effect on Claimant since he was in a non-pay status at all times and dates mentioned herein.

The question before the Court, therefore, is what rights under the laws of the State of Illinois did Claimant enjoy. There was no express employment contract and the termination, in any event, appeared to be in good faith. The issue of whether or not this was retaliatory discharge was not raised by either party and therefore is not before the Court. It appears that Claimant is relying upon implied duty on the part of Respondent. The Illinois courts have yet to allow actions for an implied duty to terminate only in good faith in the absence of an express employment contract. A good discussion of these rights is found in the case of Sargent v. Illinois Institute of Technology (1979), 78 Ill. App. 3d 117, 397 N.E.2d 443.

It is the Court’s opinion that the form, structure and method of discharge is really not relevant to Claimant’s cause of action. He would certainly have no more rights than a probationary employee under the Personnel Code. It has been held that a probationary employee who is terminated four days prior to his six-month service has no right to a hearing or a cause of action concerning his discharge. Swanson v. Visotsky (1968), 97 Ill. App. 2d 305, 240 N.E.2d 444.

It is the Court’s conclusion and finding that Claimant received notice of his termination on a non-pay status in March of 1978. It is the Court’s further finding that as a trainee, he acquired no specific status other than any other common law employee, and that any irregularities under the Personnel Code are irrelevant and do not create a cause of action.

Claim denied.


text:
    (No. 82-CC-0249
    Allen Drewes, Claimant, v. The State of Illinois, Respondent.

      Order filed July 1, 1983.

    McClellan & Hirsh, for Claimant.
    Neil F. Hartigan, Attorney General (James A. Koch, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This matter comes before the Court upon the joint stipulation of Claimant and Respondent to the entry of an award for Claimant’s personal property damage in the amount of $3500.00, Respondent having conceded liability for such loss to that extent. The Court not being otherwise duly advised in the premises, therefore,

It is hereby ordered that an award be entered in favor of Claimant, Allen Drewes, in the amount of $3500.00 in full and final satisfaction of his personal property claim.


text:
    (No. 82-CC-0317
    Michael J. Blaney and Susan Blaney, Claimants, v. The State of Illinois, Respondent.

      Order filed January 23, 1984.

      Order on motion for reconsideration filed April 3,1984.

    Katzman & Associates, for Claimants.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court upon motion of Respondent to dismiss said cause and Claimants’ response to said motion.

The incident for which this claim was filed took place on August 25, 1979, at approximately 4:00 p.m., at Hazlett State Park, County of Madison, State of Illinois, which is at Carlyle Lake.

On February 5, 1981, a settlement draft was issued to Michael Blaney for loss dated August 25,1979, in payment of “final settlement of any and all claims” and was issued on behalf of the insured, Carlyle Sailing Association et al., said amount of payment being $1,500.00.

Attached to Respondent’s motion to dismiss was a copy of a release of all claims, exhibit No. 4, where the Claimants, Michael J. Blaney, and his wife, Susan B. Blaney, both of whom are attorneys, signed the release, wherein they agreed that:

“They do hereby release, acquit and forever discharge Carlyle Sailing Association/Continental Casualty Company and all other persons, firms and corporations who might be liable of and from any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses and compensation, on account of, or in any way growing out of, any and all known and unknown personal injuries and property damage resulting or to result from accident that occurred on or about the 25th day of August, 1979, at or near Alton, Illinois.”

It is Respondent’s contention that although the State of Illinois was not specifically named in the release, when Claimants accepted the settlement draft and signed the same, they in fact accepted settlement from the State of Illinois and, accordingly, the State was released.

Claimants, in their response to Respondent’s motion to dismiss, set forth that the State of Illinois and Carlyle Sailing Association were each liable in their own right for the injuries of the Claimants and that at no time did Carlyle Sailing Association by and through its insurance agent represent to Claimants that it represented the State of Illinois. Claimants further state that the document relied on for the Respondent’s motion to dismiss was not intended by the parties to release the State of Illinois from the claim of Claimants but rather was intended only to be a promise not to sue Carlyle Sailing Association, and therefore the motion to dismiss should be denied.

The lease agreement between the State of Illinois and Carlyle Sailing Association, Inc., provided, on page 11 under subtitle insurance, that the concessionaire agreed to provide comprehensive general and public liability insurance and that “the policies shall name the State of Illinois, Department of Conservation, and the concessionaire as named insured.” This was done as shown in exhibit No. 2-2.

It is the State’s contention that the release of one joint feasor is a release of all joint feasors. Exhibit No. 2-2 refers to “approximately 20 acres, Eldon Hazlet State Park, Carlyle Lake, Illinois” and under “Name of Person or Organization (Additional Insured)” is listed as follows:

“State of Illinois
Department of Conservation
Division of Land & Historic Sites
901 S. Spring Street
Springfield, IL 62706”

It is the Court’s opinion that the release, signed by Claimants, which specifically discharged “Carlyle Sailing Assoc./Continental Casualty Co. and all other persons, firms and corporations who might be liable of and from any and all actions, causes of action, claims, demands, damages, costs, loss of services . . .” when the accident occurred on the 25th day of August 1979, was sufficiently broad to release Respondent.

Respondent’s motion to dismiss is granted and this cause is dismissed.

ORDER ON MOTION FOR RECONSIDERATION

This matter comes before the Court upon motion of Claimants to reconsider an order of dismissal entered by this Court on January 23, 1984, and Respondent’s objections to said motion.

The Court is of the opinion that the Court’s order of dismissal was correct; therefore, Claimants’ motion of reconsideration is denied and this cause remains dismissed.


text:
    (Nos. 82-CC-0372 through 82-CC-0376
    Lowell D. Molt, Cornelius Mack, Richard C. Perkins, Ralph A. Gosda, and Leonard R. Lehner, Claimants, v. The State of Illinois, Respondent.

      Order filed February 14, 1984.

    William K. Cavanagh, Jr., for Claimants.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause is before the Court on Respondent’s motion to dismiss.

The Claimants are seeking retroactive compensation based on a difference between the union scale agreed to by the industry and the prevailing rate paid by the State during the interim period between the effective date of the industry labor agreement and the time the State changed its prevailing rate scale. Their claims rely on an agreement that had been negotiated between the Plumbers and Steamfitters Local 137 and the West Central Illinois Plumbing and Piping Contractors Association of Springfield and vicinity which had an effective date of April 1,1981. It is the Claimants’ contention that the State was bound by this agreement and therefore obligated to implement a wage increase for its employees retroactive to April 1,1981. The State contends that it was not bound by this agreement and therefore could implement a wage increase to conform the wages paid by it to the prevailing rate in the vicinity according to its own policy.

This case presents a set of circumstances similar to those presented in the case of Hollender v. State (1944), 14 Ill. Ct. Cl. 40. In Hollender, supra, the claimants were members of Local 411 of the United Association of Journeymen Plumbers and Steamfitters of the United States and Canada who were employed by the State at Dixon State Hospital. It was alleged that on May 30, 1942, the Union entered into an agreement with the contractors of Lee County, Illinois, which immediately increased union members’ wages from $1.37/2 per hour to $1.70 per hour. The Claimants contended that the State was also bound by this agreement and therefore obligated to implement the same wage increase on the same date. The State did not recognize and implement the wage increase until January 1,1943.

The Court in Hollender, supra, disagreed with the Claimants’ contention. It found that the increase in hourly wages did not arise from a negotiated contract with the State but was an action taken solely on the behalf of the local union for the benefit of its members. While the contractors in Lee County may have recognized the $1.70 per hour rate as the prevailing rate under contracts negotiated between them and the union, it had not been alleged that the State entered into any binding contract to pay the same wage rate until January 1,1943. TheHollender, supra, case was later cited with approval by this Court in Hum v. State (1981), 34 Ill. Ct. Cl. 163, and Courtwright v. State (1981), 34 Ill. Ct. Cl. 165, for the proposition that the State, not having been a party to an agreement between the union and local contractors, is not bound to pay the same wage rate unless and until it agrees to do so.

The same situation that existed in Hollender, supra, exists in the claims presently before this Court. While it appears that the local industry contractors had agreed through a contract negotiated with Local 137 to implement a wage increase starting April 1, 1981, we find that the State has not been shown to have agreed to implement a wage increase or to have been under any obligation (contractual, statutory, or otherwise) to do so until July 1,1983. The Claimants, therefore, are not entitled to receive any retroactive compensation for the period of time running from April 1, 1983, to July 1, 1983.

Based on the foregoing, it is hereby ordered that these claims be, and hereby are, dismissed.


text:
    (Nos. 82-CC-0434, 82-CC-0435 cons.
    Henry D. Moore, Jr., Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 1, 1984.

    Thomas J. Edstrom, for Claimant.
    Neil F. Hartigan, Attorney General (William E.

      Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This matter is before the Court on the joint stipulation of the parties. The Court finds as follows.

This is an arbitration case which was processed under terms of a collective bargaining agreement between the State of Illinois and the American Federation of State, County and Municipal Employees. The grievance was filed on behalf of Chaplain Henry D. Moore, Jr., an Episcopalian priest who was assigned to the Menard Correctional Center in Menard, Illinois. The problem arose as a result of an inmate confiding in Chaplain Moore about a pending prison escape attempt and the chaplain’s failure to properly inform his supervisors of the knowledge that had been imparted to him by the unnamed inmate. As’ a result of the chaplain’s failure to report this impending escape, two inmates broke out of the Menard State Penitentiary. They were suspected of assaulting two citizens and of killing a liquor store owner near St. Louis not long after their escape. Upon investigation of the events surrounding the escape, prison officials learned from the unnamed inmate that he had known of the escape plans and had shared his knowledge with Chaplain Moore. Following the disclosure of Chaplain Moore’s knowledge by the unnamed inmate, the events are described in the arbitration hearing record as follows:

“At the suggestion of Senior Chaplain Hoger, Chaplain Moore, who was ill with bronchitis, decided on Thursday, January 17, to take a few days sick leave. But about 8:30 or 9:00 p.m. on Thursday, Hoger called the Grievant at home and asked him to attend a meeting at 11:00 a.m. on Friday, January 18, in the office of Assistant Warden Chrans. At this meeting was Robert Horn, Chief of Chaplains who had arrived from Springfield, Illinois, as well as Moore, Hoger and Chrans.
During the meeting the Grievant was told that the Warden was very upset about the developments surrounding the escape. At some point in the forty-five minute meeting (described as being a very emotional one), there was a discussion of the probability of a disciplinary hearing (with the potential outcome being discharge of the Grievant) or as an alternative option, resignation. If Chaplain Moore resigned, there were assurances of assistance in relocating him at another State correctional center.
Reverend Moore elected to resign and the personnel papers were completed within a few minutes. The resignation was effective immediately. Reverend Moore was asked to clean out his desk and remove his personal items the next day (Saturday), which he did.
There was no Union involvement prior to the following week. The grievance was dated January 30.”

At the hearing, counsel for the parties agreed that the issue should be framed as follows:

“Whether the Employer violated Article IX, Sections 4 or 5, of the Agreement when Rev. Henry D. Moore, Jr. was separated from employment with the Department of Corrections on January 18, 1980, and during the course of events which led to such separation.”

The grievance read:

“The Union has just become aware that Rev. Moore was forced to sign a resignation. This resignation was not processed like other resignations and at the time Rev. Moore was not allowed Union representation. Union demands Rev. Moore be reinstated in his last position as Chaplain, resignation be withdrawn and he lose no time in above matter and he be made whole.”

The grievance was granted by the arbitrator on July 31, 1981.

The joint stipulation of the parties raises only the mitigation. During the period of Rev. Moore’s separation from State service he would have earned a gross salary of $27,453.64. During the period of his separation he was able to mitigate his losses to the extent of $19,649.68. He also received during this period of time $1,751.00 by way of unemployment compensation. We have reviewed the record and find that the Claimant met his responsibilities with respect to mitigation of his losses.

It is therefore ordered that this Claimant be granted an award in the amount of $7,803.96 subject to appropriate additions for F.I.C.A. and/or any appropriate retirement program as well as appropriate deductions and withholding for F.I.C.A. and/or any appropriate retirement program as well as State and Federal taxes, with the Office of Employment Security, unemployment division, to receive $1,751.00 from Claimant’s net reimbursement for unemployment payments made to this Claimant, all as more fully set forth in the appendix attached hereto and made a part hereof.

APPENDIX A

Identification of State Contributions and Deductions from Back Salary Award

To the State Employees’ Retirement System:

Employee’s contribution to State

Employees’ Retirement System 1098.15

Employee’s contribution to FICA 1738.20

State’s contribution to State

Employees’ Retirement System 2099.63

State’s contribution to FICA 1738.20

To Illinois State Treasurer to be remitted to Internal Revenue Service:

Claimant’s Federal Income Tax 1560.79

To Illinois Department:

Claimant’s Illinois Income Tax 234.12

To Office of Employment Security:

Director Dept, of Labor 1751.00

To the Claimant:

Net Salary 1422.00

Total award $11642.09


text:
    (No. 82-CC-0489
    James Paul, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 15, 1984.

    James M. Drake, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This is a claim by a former employee of the Respondent for back wages due as the result of a wrongful discharge. The Claimant, James Paul, was suspended on November 1,1980. He returned to work on December 1, 1980 and was again suspended on December 1, 1980, pending discharge, but was paid from December 1, 1980, until December 11, 1980, at which time his discharge became effective. He had been employed as a Community Service Supervisor II with the Illinois Commission on Delinquency Prevention. The Civil Service Commission, after lengthy hearings, returned him to work on July 16, 1981. It found insufficient evidence to sustain all but one charge and only ordered a 30-day suspension on that charge.

On September 21, 1981, the Claimant filed this claim. Attached to the complaint as Exhibit B is a letter from the Department of Children and Family Services which was stipulated to be part of the record. It shows that Claimant’s lost income for the period of December 11,1980, through June 30,1981, was $13,354.62, based on a daily rate of $85.33. This figure includes $1,023.96 for vacation days he would have earned over that period had he worked and not used them.

A hearing was held on August 12,1982, and evidence as to the amount of damages and mitigation efforts was adduced. However, during the time his claim was pending in the Court of Claims, the Claimant was pursuing an administrative review action in the Circuit Court of Sangamon County seeking reversal of the 30-day suspension sustained by the Civil Service Commission. After the hearing on damages in this Court and during the time the parties were briefing this claim, the circuit court, on September 14, 1982, reversed the 30-day suspension order, thereby clearing the Claimant of all charges.

Three weeks after the circuit court’s decision the Claimant moved to amend his complaint to claim an additional sum of $2,559.90 based on $85.33 per day for the 30-day period of the month of November 1980. The record indicates that the motion was not ruled on. The Respondent did not file a separate pleading to the motion but did address comments to it in a replication brief. Therein the Respondent raised several objections including (1) that the issue of compensation for November 1980 was being untimely raised, (2) that the record makes no mention of compensation due for that month, and (3) that Claimant is seeking $2,559.90 when in fact the document Claimant offered as a departmental report shows that Claimant was only earning a monthly salary of $1,856.00.

Pursuant to sections 2 — 616 and 2 — 617 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, pars. 2 — 616, 2 — 617), amendments to a complaint may be made at any time. Perhaps a hearing on the Claimant’s motion would have been proper in view of the objections the Respondent expressed. However, we find that the Claimant has filed sufficient documentation and justification for us to allow him to amend his complaint to include the amount due as the result of the reversal of his 30-day suspension. Our granting his motion would best serve the interests of judicial economy and efficiency, for this claim has been pending for some time and it is quite certain that the Claimant would file another claim were we not to allow him to include it in the case at bar. We do note the Respondent’s objections and find the additional amount that the Claimant would have earned for the month of November 1980 to be $1,856.00. In addition, we point out to the parties that this opinion will not become final for 30 days. Both parties have that period within which to ask for a rehearing on the matter if they so desire. Motion granted.

The threshold issue which must be decided concerns the availability of appropriations with which the employee could have been paid had he not been wrongfully discharged. The record indicates that the employing agency of the Claimant, the Commission on Delinquency Prevention, was abolished by the legislature effective July 1, 1981. Prior to the layoff of all the agency’s employees on said date, $24,300.00 was paid out to the staff to compensate for unused vacation time. This liquidation left a total of $26.19 in the line item for personal services (from which line item the Claimant should have been paid). There is nothing in the record to indicate that any funds were available to be transferred into the personal services line item had such a transfer been done in time. In summary, the record shows that the agency spent virtually all of its funds prior to its extinction and would have had none left to pay Mr. Paul.

The volumes of the Court of Claims Reports are replete with cases where agencies have incurred obligations in excess of the amounts appropriated to them and the creditor has sought relief in this Court. It is a fundamental principle in this Court that such claims must be denied. The case of Van Nattan v. State (1981), 34 Ill. Ct. Cl. 260, is very similar. There the Claimant’s job was abolished and he obtained reemployment rights through the Civil Service Commission. However, the agency did not reinstate him until 10 months later. The agency lapsed no money with which he could have been paid. The Court stated:

“The law is quite clear on this issue. Even though Claimant in equity and good conscience appears to be owed his lost wages we are constrained by law to deny his claim. Where insufficient funds lapse from which payment of a claim would have been made, absent the showing that the claim falls within the narrow exception of being expressly required by law, the claim must be denied. In connection with this we point out that article VIII, section 2(b) of the Constitution of the State of Illinois provides that the General Assembly by law shall make appropriations for all expenditures of public funds by the State. If this Court were to grant an award in the case at bar we would in effect be appropriating funds. Said authority lies solely with the Legislature.” (34 Ill. Ct. Cl. 260, 263.)

In the case at bar the agency spent all of the funds appropriated to it for personal services by the legislature and if we were to make an award we would essentially be providing the agency more money — in effect appropriating funds.

However, section 11(b) of the Personnel Code (Ill. Rev. Stat., ch. 127, par. 63b111b), provides that every employee reinstated for the period for which he was suspended, discharged, or improperly laid off shall receive full compensation for such period notwithstanding the fact that any person was employed to perform any duties of such employee during the time of such suspension, discharge or layoff. This seems to us to evince a legislative intent that such a person be paid regardless of whether or not the agency spent the money. We find that payment of any amount of back wages due the Claimant under the facts of this case to be expressly authorized by law.

In so finding we know that we are overruling the Van Nattan, supra, decision and finding yet another set of facts within the narrow exception to the general rule. Mr. Van Nattan’s claim was presented to the legislature following our decision, the legislature considered the matter, and Mr. Van Nattan was eventually paid. Because of the constitutional allocation of authority to the legislature noted in the above quoted passage from Van Nattan, supra, we are mindful that we must exercise extreme caution in deciding what obligations are expressly authorized by law. We think the approach taken here is correct and proper from both legal and policy points of view. Our decision, however, must be limited so that it only applies so as not to bar back pay up to the date the legislature refused to fund the agency’s operations. Even though the Claimant was ordered reinstated two days after the agency’s abolition, any portion of the claim relating to that two-day period must be denied.

Having found that this claim is not barred by the insufficiency of lapsed funds we turn now to the issue of mitigation. The facts with respect to the Claimant’s mitigation of his losses are as follows. James Paul was in his late fifties during the relevant time period. He had spent virtually his entire life in youth work, 17 years of that time with the delinquency programs with the State of Illinois. In mitigating one’s losses in a case such as this, one is required to seek relatively similar work within the same general locality. The Claimant applied for work at Elliot’s Children’s World, the Illinois Department of Children and Family Services, the Illinois Department of Corrections, the Pekin Housing Authority, the Tazewell County Court Services, and he tried to get help through his State representative.

Also, he sought work in private industry. He went to a well-placed friend at Midwest Solvents but was unable to get work. He applied at the Private Industries Corporation, Greater Peoria Contractors and Suppliers Association, Johnson’s Moving and Storage, Maloof Real Estate Company, and Cabinet Pack. Finally, he was able to get part-time work from a friend at Cabinet Pack and earned a total of $618.00.

Additionally, the record indicates that the Claimant spent a good deal of time preparing for litigation and defending himself. We have previously determined that such efforts are relevant to the issue of mitigation.

Due to the nature of the charges levelled against him which caused his suspension and discharge (which charges need not be described herein), however, he had in reality no chance of obtaining youth-oriented employment. Upon telling other prospective employers about the circumstances under which he was forced to leave his job with the Respondent, they too were not receptive to hiring him. We feel we comprehend the situation and understand the prospective employers’ reactions and the futility in Claimant’s efforts. In conclusion, considering the Claimant’s age, his occupation, the general state of the economy (which we take judicial notice of), the nature of the charges against him, and the time spent in refuting those charges, we find that the Claimant has met his obligation to mitigate his losses.

The final issue on the merits of the claim involves vacation pay as a proper element of damages in a claim seeking back wages as a result of a wrongful discharge. Our research indicated that the question has not previously been presented to the Court under the facts of this case. It is the Claimant’s position here that had he not been wrongfully discharged he would have earned vacation days and would have had the right to have them liquidated by compensation upon the agency’s abolition just as his co-workers were paid.

In Harrington v. State (1974), 30 Ill. Ct. Cl. 67, the claimant sought payment for accrued vacation time pursuant to Personnel Rule 3 — 290 which provides as follows:

“Salary in lieu of vacation: No salary payment shall be made in lieu of vacation not taken except on termination of employment, in which case the effective date of termination is not extended by reason of said salary payment.”

The Claimant in Harrington, supra, had changed employment from one agency of the State to another. The issue therein was whether his employment had terminated or he had merely transferred to another job. In granting payment for accrued vacation time, the Court decided that the Claimant’s employment had in fact been terminated and his situation fell within the rule. The Claimant was not seeking redress for wrongful discharge but merely payment for days actually accrued. In the case at bar, Mr. Paul was paid for vacation days actually accrued up to the time of his discharge.

Although Shimeall v. State (1979), 32 Ill. Ct. Cl. 760 would appear to be directly on point, upon careful analysis it is clear that the issue was not raised by the Respondent nor was the Court apprised of anything in the record to indicate the Claimant should be barred from receiving vacation pay as an element of damages in a wrongful discharge claim. In a case involving much the same facts as Shimeall, supra, this Court in Shaw v. State (1981), 34 Ill. Ct. Cl. 126, denied vacation pay. The Claimants in those cases had been wrongfully discharged and ordered reinstated. Upon reinstatement, the agency credited the Claimants with the maximum amount of vacation days they were by rule allowed to carry. Although the rationale used by the Court in denying the claim for vacation days in Shaw, supra, was much more involved, it can basically be summarized that the Claimant therein was made whole by the restoration of the agency of the vacation days upon the Claimant’s reinstatement. Although it was shown that the Claimant would have earned more vacation time than that with which he was credited had he worked over the entire period of his wrongful discharge, he would have either used the balance of the vacation days or lapsed them during that time. Thus he actually lost nothing.

In People ex rel. Bourne v. Johnson (1965), 32 Ill. 2d 324, 205 N.E.2d 470, the supreme court stated, “The theory underlying 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”. It is the Claimant’s position that he was deprived of his job and but for that deprivation he would have worked and earned vacation days. Had he worked and earned vacation days he would have been terminated, along with the rest of the agency’s employees, at the end of June 30, 1981. Just as the other employees were paid for accrued vacation time upon their termination, he, too, would have been entitled to such payment. Moreover, section 11(b) of the Personnel Code (Ill. Rev. Stat., ch. 127, par. 63b111b) provides that upon reinstatement one is to be paid lost benefits, and the right to earn and be compensated for vacation time is certainly a benefit of the Claimant’s employment.

However, upon close analysis it is clear to us that the Claimant has suffered no loss with respect to the vacation days. The record shows that during the month of December 1980, when he was removed from the payroll, he was paid for 54 vacation days, said payment totalling $4,607.98. A person with the Claimant’s length of tenure with the State earns 20 vacation days per year. Although the record is silent on the matter, we will give the Claimant the benefit of the doubt and assume that of those 54 vacation days for which he was paid he earned only 14 of them in calendar year 1978. Pursuant to the Personnel Rules, specifically 80 Ill. Ad. Code, ch. 1, section 303 — 250, he could have only carried that many days up to December 31, 1980, after which he would have lapsed the 14 days. Had he actually worked continuously through June 30, 1981, he would have only earned 12 more vacation days. Therefore, he would have either lost the 14 days or actually taken them off but only gained 12 more. Were we to pay him for the 12 additional days he would in effect be made more than whole because he would be paid for the 14 days he would have either used or lapsed and 12 additional days.

In summary, following People ex rel. Bourne v. Johnson, supra, in order to “compensate the claimant to the extent that the wrongful deprivation of salary has resulted in financial loss” we are treating him as if he had been continuously employed. When the situation is viewed as such he has already been compensated for 14 days which he would have either actually taken off or lapsed. He would not have been paid for those 14 days had he been continuously employed. In our view, those days more than cancel out the 12 more he would have earned had he worked and could have been compensated for had he not taken them off.

In conclusion, the Claimant is hereby awarded the sum of $13,578.66, plus employer contributions and less employee deductions as more fully set forth in the appendix attached hereto and incorporated herein. We arrived at the gross figure by adding what the Claimant would have earned for the month of November 1980, the balance of the month of December 1980, for which he has not been paid, and what he would have earned from January through June 1981, and then subtracting what he actually earned in mitigation of his losses.

APPENDIX A

Identification of State Contributions and Deductions from Back Salary Award

To the State Employees’ Retirement System:

Employee’s contribution to State

Employees’ Retirement System 1086.29

Employee’s contribution to FICA _.00

State’s contribution to State

Employees’ Retirement System 1018.40

State’s contribution to FICA .00

To Illinois State Treasurer to be remitted to Internal Revenue Service:

Claimant’s Federal Income Tax 2715.73

To Illinois Department:

Claimant’s Illinois Income Tax 407.36

To the Claimant:

Net salary 9369.28

Total award $14597.07