text:
    (Nos. 75-CC-0645, 75-CC-0646, 75-CC-0647, 75-CC-0648
    Donald D. Litwiller and Gerald R. Smith d/b/a Lakeview Realty, a partnership, and Lakeview Developers, Inc., Ray H. Leach, d/b/a George’s and Leon K. Stevenson, d/b/a Stevenson’s, Claimants, v. State of Illinois, Respondent.

      Opinion filed March 15, 1978.

    Leiken, Leiken & Leiken, Attorneys for Claimant.
    William J. Scott, Attorney General; Costigan & Wallrab, for Respondent.
   Per Curiam.

These four cases were consolidated for hearing since the claims all arose out of the same set of facts and differ only as to the measure of damages. The Court wants to comment on the efficient, thorough and helpful manner in which the parties briefed and argued their respective sides. We feel they are entitled to be so complimented as it represents a thorough presentation of what the evidence tended to prove and what the law seems to be.

Complainants all suffered damages as a result of flood waters entering premises owned by them in Lakeview Shopping Center, south of Eureka, Illinois, on June 20 and 21,1974.

Sometime prior to August, 1973, the State of Illinois in the process of making repairs to Route #117 decided to replace an old bridge which spanned Walnut Creek approximately 50 feet north of the intersection of Eureka Lake Road and Illinois Route #117 near Eureka, Illinois. Walnut Creek ran from West to East and passed under a bridge on Route #117. The old bridge was built on a storm frequency plan of 25 years, and the new bridge was designed on a storm frequency plan of 50 years. In order to handle traffic during construction, a runaround was designed by the State, construction of which started in August of 1973 and was completed in October, 1973. The runaround was approxmately 600 feet long and was located to the west of Route #117. Its height was the same as that of the surface of the old bridge and of Route #117. The runaround consisted of an earthen embankment with three nine foot diameter culverts underneath. It was designed for use from 12 to 18 months and was built on a five year storm frequency plan.

Lakeview Shopping Center was in existence since 1971 and is located to the southwest of the intersection of Lake Road and Illinois Route #117. Lakeview Shopping Center consisted of two buildings which housed Lakeview Realty, George’s Restaurant, and Stevenson’s Furniture Store. Under construction at the time of the flood were two additional buildings totaling 15,000 square feet.

In June of 1974 heavy rains saturated the Eureka area. On June 21, Walnut Creek began to overflow its banks to the North and the water level rose above the height of the three culverts in the runaround. After additional rain on June 22, the water level again rose above the culverts and eventually flowed over the top of the runaround. Water was backed up and diverted to the South across Lake Road reaching the buildings of Lakeview Shopping Center. On Saturday, June 22, 1974, water entered the buildings to the extent that Lakeview Realty had 12 inches of water in its basement and Stevenson’s Furniture Store had 4 inches of water on its main floor.

Complainants first argue that the State is liable on a theory of absolute liability because it changed the natural flow of water in W alnut Creek and this resulted in flooding of Claimant’s premises causing damage, citing for authority, Toledo, Wabash & Western Railway Co. v. James C. Morrison, 71 Ill. 616; Ohio & Mississippi Railway Co. v. Charles Thillman, 143 Ill. 127.

In summary, Claimants urge on this point, “It is the Claimant’s position that regardless of the care and skill of the State in design and construction of the runaround, it was in fact insufficient and therefore amounted to a public taking without compensation.”

But then they insert the element of foreseeability as they argue, “The only limitation on the liability of the State is in the unforeseeability of the rainfall if it was to be such that it could not have been anticipated.”

In so asserting, they support their contention with a quote from Thillman, supra:

The Court in Thillman said on page 137:

“If, in the case of an obstruction of a public river, it appears that the injury resulting therefrom arose from causes which might have been foreseen such as ordinary periodical freshets, he whose superstructure is the immediate cause of the mischief, is liable for the damage. On the other hand, if the injury is occasioned by an act of providence which could not have been anticipated, no person can be liable.”

And on page 138:

“The degree of care, which a party is bound to use in constructing a dam across a stream ... must be in proportion to the extent of the injury which will be likely to result to third persons provided it should be insufficient; and it is not enough that the dam is sufficient to resist ordinary floods; for if the stream is occasionally subject to great freshets, those must likewise be guarded against; and the measure of care required must be that which a discreet person would use if the whole risk were his own... The dam should be sufficient to resist not merely ordinary floods, but such extraordinary floods as may reasonably be anticipated.”

In addition to the absolute liability theory, Claimants argue the State was negligent in not designing a temporary bridge with a greater storm frequency than five years, in failing to provide for any emergency spillway if the design was insufficient, and in failing to cut the road when the high waters occurred.

In response the State contends that there is no absolute liability and that the only duty the State had was to refrain from being negligent. They argue the duty was to provide an opening for the natural flow of waters sufficient to afford an outlet for all waters that might reasonably be expected to flow and “to accommodate such freshets and usual and ordinary floods as might reasonably be expected,” citing 78 Am Jur 2d Waters, Sec. 28 p. 472-473. They too refer to Thillman and contend that the case requires proof of negligence.

At the hearing, movies and slides were introduced in evidence to show the flooding and also the size and structure of the runaround.

On the question of liability based on negligence, three civil engineers testified, one for Claimants and two for Respondent. Paul J. Schweickert, a civil engineer who had done prior work for Claimants contended the design of the runaround was insufficient. He noted from an exhibit in evidence that the old bridge provided 640 square feet of opening and this was to be enlarged to 1080 square feet in order to qualify as a 50 year storm frequency plan. The three culverts in the runaround provided only 188 square feet of opening. He concluded it was a mistake not to provide an emergency spillway for overflow if the culverts were to be on a storm frequency of five years, or the road itself should have been made lower. He testified that Lake Road was lower at its lowest point than the temporary runaround, 445.66 siting for Lake Road compared to 448.20 for the temporary runaround. The evidence indicated that the difference in level between water on the west side of the road and the east side of the road was around five feet. He concluded that since the shopping center was close, and if the State wanted to stay with a five year storm design, they shoud have made provisions for an emergency such as the one that occurred.

Steven Magelli, a civil engineer, testified for the State, as the resident engineer on the job and testified that a cut in the road to alleviate the flooding would not have been feasible since the whole road would probably have washed away and damage downstream could have occurred due to the onrush of the waters.

Wayne Kasja, a civil engineer in the employ of the State for 18 years as a project design engineer, testified for the Respondent. He said that in designing the runaround he had to consider the speed and safety of the traffic to be accommodated, the hydraulic requirements, the length of time the runaround was to be in effect, also the geometries, grade and so on. Relative to the hydraulics, he said it was determined that a five year storm frequency would be adequate. This was based partly on information from the Illinois State Water Survey of precipitation in five communities in the general proximity of the site. Charts and tables were in evidence to substantiate the data. The drainage area of the creek was about 51 square miles. Mr. Kasja said that “Based on the configuration of the channel as it existed . . . 108 inch diameter metal pipes were proposed to serve the drainage,” and that the runaround was to be in place only 12 to 18 months. He indicated that to accommodate a 25 year storm frequency ten such tubes would be necessary; that it would be too costly and that it wasn’t practical to put in ten tubes due to the proximity of the runaround to the new bridge. This would have required a channel shape that would not be conducive to construction of the new bridge. He further stated that the road would have to be three feet lower to allow for any significant volume flow and to do this would create a safety hazard to traffic.

With reference to the rain he testified that seven inches fell in three days and this amounted to a 25 year frequency and this, when considered with prior rains in June, would result in even a higher frequency. However, petitioners argue that the storm, when analyzed from the tables for June, 1974, computed by the Illinois State Water Survey from data at five nearby stations, clearly indicated it was of an eight year frequency.

When asked about the situation if the old bridge were in existence he stated that “considering the elevation of the Lakeview Road, it was our opinion that the Lakeview Road and portions of the lot area out there would have received water with the old facility in place.”

He did admit, however, that three additional pipes of nine foot diameter could have been installed.

In determining the rule of law to follow in arriving at the State’s duty in designing the temporary road we have reviewed the cases cited and have concluded that the duty is not one of absolute liability in all events but is judged on foreseeability. This is apparent from Tillman, supra, when the Court said, “Whether the flood causing the injury is such as one as should have been anticipated and provided against, is a question of fact for the jury to decide.” Foreseeability connotes negligence.

In Ohio & Mississippi Railway Co., supra the Court said on page 13, “The question, then, is not whether appellant has sufficiently provided for an escape of the water of ordinary floods but has it provided for escape of such unusual or extraordinary floods as it should have anticipated would occasionally occur in the future.”

Also in Drada v. Illinois Terminal Railroad Co., 210 Ill. App. 640, the Court said on page 648:

“... it was appellant’s duty to provide ample outlets for the water of such floods or freshets as men of ordinary prudence would have foreseen but not against such extraordinary floods as could not have been reasonably anticipated.”

There are cases, however, where the language implies an absolute duty without the Court so holding. See Chic. Milw. & St. Paul Ry Co. v. Carpenter, 125 Ill. App. 306; Strange v. C.C.C. & St. Louis Railway Co., 245 Ill. 246; and also Toledo, Wabash & Western Railway Co. v. James C. Morrison, 71 Ill. 616.

In reviewing the evidence we note the following important factors in this case:

Lake Road was over two feet lower in at least one place, than the temporary runaround and this was known to the engineers of the State before designing;

Three additional culverts could have been installed with only the cost as an obstacle and such costs would have been within a reasonable range, considering the risk factor; also there was evidence that larger culverts could have been used;

The closeness of the Shopping Center (300 feet) to the creek and probable damage if flooding occurred;

The drastic reduction of the open space of the old bridge compared with the three culverts in the runaround was from 640 square feet for the old bridge, to 188 square feet for the culverts;

The floor of Lakeview Realty was slightly higher than the temporary road but nevertheless flooded;

Walnut Creek drained 51 square miles of land;

No emergency plan was included in the design of the runaround to accommodate any excess waters if the State miscalculated the rainfall expectancy;

There was undisputed evidence by witnesses who lived there for over 15 years that there had never been any flooding to the south of Lake Road, while there had been to the north of Walnut Creek;

On the other hand, it does appear that the rainfall in the area was unusual and extraordinary.

If this were a jury case, the question would actually be one for it to decide, as reasonable minds would differ on the extent of the State’s duty.

The State may not have acted unreasonably in designing the temporary bridge, and we cannot say, as a matter of law, it should have guaranteed in all events that there would be no flooding of Claimants’ property. On the whole, however, we feel that it is more probably true than not that the State should have so designed the runaround with an emergency spillway or with additional capacity to protect against flooding of Claimants’ property. If it chose not to do so because of cost factors, or as a concession to safety, then the risk of so doing must be on the State. This may have been a risk it was willing to take, for to insist on a complete flood proof design in eve^y case, over the long run, might be unwise from a road development standpoint. But having gambled and lost, we feel they should pay for the loss under the facts of this case.

The facts presented in this case to measure the conduct of the State against the requirement of freedom from negligence are close. Holding for Claimants compels the factual conclusion, by a preponderance of the evidence, that the State failed to do all that was reasonable under the circumstances, and that it should have foreseen that such failure could have permitted heavy rains to flood Claimants’ premises.

The damages claimed and the amounts allowed are shown below. There was no testimony supporting the dollar amount of damage sustained by Ray H. Leach, one of the Claimants. At the hearing he failed to testify.

Our allowances are based on an analysis of the evidence submitted in support of the items claimed. When an item is disallowed, it is our judgment that the proof fails to sustain it or that other factors affected the amount of damage or that the proof submitted was not specific enough to be convincing as to dollar amount, and was thereore speculative in amount.

It is ordered that awards are made as follows:

Lakeview Realty is awarded the sum of $3,059.74.
Lakeview Developers is awarded the sum of $7,826.85.
Stevenson’s is awarded the sum of $17,621.40.
George’s is not awarded.

(An itemized breakdown of awards has been deleted. Ed.)


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    (No. 75-CC-0717
    Ara Services, Inc. (Successor to Fry Consultants, Inc.), Claimant, v. State of Illinois, Respondent.

      Opinion filed June 7,1979.

    Gardner, Carton, And Douglas, Attorney for Claimant.
    William J. Scott, Attorney General; Francis M. Donovan, Assistant Attorney General, for Respondent.
   Per Curiam.

Claimant filed this action seeking payment in the amount of $54,944.87 for services allegedly performed for the Respondent by Claimant.

The matter was orally argued on the basis of a stipulation of facts between the parties and stipulated exhibits.

The stipulation may be summarized as follows:

On October 23, 1973, Respondent and Claimant entered into a written contract for services performed and to be performed by Claimant for the period of time of August 15, 1973, through November 15, 1973, as a consultant to the Department of Motor Vehicles, Secretary of State for the sum of $100,000.00 The parties agree that this contract is a valid and enforceable contract. The work was actually commenced in August, 1973, by oral agreement which was formalized by the written contract of October 23,1973.

After the termination date of the contract, Claimant continued to supply its services from November 15, 1973, to February 15,1974, and it is for these additional services that the instant claim is made.

The services performed during the written contract period and during the disputed period was in connection with a project called Vadis, the purpose of which project was for the revising of systems utilized for the collecting and disseminating of information on driver’s licenses, vehicle registration, and other motor vehicle type applications.

During both the time encompassed by the written contract and the time period in issue, there were held weekly meetings between Claimant’s representatives and representatives of the Respondent including Patrick J. Halperin, Executive Assistant to the Secretary of State and Director of the Department of Management Services; Norman Ross Otters, Director of the Department of Motor Vehicle Services; I. Lawrence Richardson, Deputy Secretary of State and other representatives of the Secretary of State’s Office. During these weekly meetings, Respondent orally requested Claimant to perform additional services through February 15,1974, and Claimant did, in fact, perform these additional services.

After February 15, 1974, in view of the fact that Claimant had sold its subsidiary which has been performing the work, it was agreed that Claimant would cease its performance and the work be completed by a former employee. The work was, in fact, completed and the former employee’s services were paid in full.

The work performed by Claimant which is in dispute was a continuation of consulting efforts started under the original contract. The project could not have been completed if the work performed prior to F ebruary 15, 1974, had not been performed by Claimant. The requirement of the additional work was the result of various changes in the scope of the contract requested by Respondent’s representatives. It was known by Respondent’s representatives that the costs incurred by Claimant in performing the additional work exceeded the contract price of $100,000.00 but at no time did any individual connected with the project or any representative of the Respondent ask the Claimant to discontinue the work between November 15,1973, and February 15, 1974.

From November 15,1973, and thereafter, although orally promised by the representatives of Respondent, and although repeatedly requested in writing and orally, no written agreement was entered into.

It was agreed by the parties that $54,944.87 was a fair and reasonable amount for the additional services performed. Claimant has not been paid any part of this amount.

In his deposition, Patrick J. Halperin, Executive Assistant to the Secretary of State and Director of the Department of Management Services admitted that the money was owed.

Respondent argued, both in oral argument before the Commissioner and in argument on its motion to dismiss before the Court that although the work was performed and performed satisfactory no payment is authorized by law because of the lack of a written contract.

This Court in its order of May 23, 1977, denying Respondent’s motion to dismiss stated that:

“We do not depart from our holding in Schnepp & Barnes v. State 10 609 but we cannot say at this stage of the case that it is controlling. The better view is to permit Claimant to have his day in Court and from the evidence determine whether the work was indeed performed as a modification of a valid contract or whether it constitutes a new contract and thus void under Schnepp.
This issue must be resolved as well as the issue of whether there was a waiver of the contract provisions requiring any cost increase to be in writing.”

In view of the stipulation of the parties it is clear that the course of dealing between Claimant and Respondent shows that the original written contract was modified at the request and with the approval of duty authorized officials of the Secretary of State’s Office. The work performed during the disputed period of time was substantially the same type of work performed during the written contract period. The work performed after February 15,1974, was a continuation of the previous work performed by Claimant.

The facts are such that impel one to the conclusion that the sevices in dispute in this case were actually a modification of the original written contract. As such, payment for the same is not voided under the doctrine enunciated in the Schnepp case where the Court held that even where the State receives a thing of value and appropriates it to its own use, payment is not authorized unless the statutory requirements in the execution and performance of the same are performed.

The instant case is, therefore, distinguished from Schnepp in that it is a modification of a validly executed contract and not a new contract.

In the case of Stahelin v. Board of Education, 87 Ill. App. 2d. 28, 230 N.E.2d 465 (1967), the Court held that a contractor was entitled to payment for extras even though the requests for the extras were not in writing as required by the contract and were not approved by the School Board as required by Statute. There, as in the instant case, the School Board had been aware that the extras were being requested and received the benefit of the extras and was therefore obliged to pay for those extras.

The next issue to be decided by the Court is whether Respondent waived the provision in the contract providing for a written modification agreement in the event the contractor is obliged to incur costs in excess of the stated contract price.

Halperin in his deposition testified as follows:

Q. “Isn’t it true, and for this contact, that certain amplifications were made to the contract by the State, and certain services that were to be performed by the State were not thereby done, causing both an increase in the amount of services necessary to be rendered by Fry (Claimant), and also a delay in the completion of the project?
A. Yes, because of our external requirement, we were not allowed to dedicate the amount of resources to give Fry (Claimant) total assistance. Therefore, it was incumbent upon them to assign certain resources to the project. Because of certain management decisions the scope of the contract was changed, and therefore became a little larger, therefore causing them to do more work to complete the stated goals. . .
Q. Who sponsored Fry (Claimant) to perform work such as the implementation that was not originally called for in the contract?
A. They were verbally authorized by myself, after discussions with the Executive Assistant for the Department of Motor Vehicles, Mr. Otters, and discussion with the Deputy, Mr. Lawrence Richardson.”

Halperin further testified that all of the parties present at the weekly meetings were aware of the fact of the requirement of additional costs and all agreed that the Claimant was to continue working on the project.

By reason of the fact that the increased costs and time requirements were the result of the failure of the Respondent to properly perform the support services contemplated by the original contract and by reason of various changes made in the project by the Respondent’s representatives and their knowledge of the increased costs, it is our conclusion that Respondent waived the provision of the contract requiring written modifications.

In Marhoefer v. State, 25 Ill.Ct.Cl. 139 (1965), this Court held that where the State was responsible for delays and change of plans, the increased costs resulting from the same were to be borne by the State. The State further waived the written modification provision of the contract by reason of their affirmative conduct requesting, ratifying and supervising the additional work. There can be no clearer waiver of that provision than the fact that weekly meetings were held during the course of the disputed period which reviewed the work and authorized continuation of the work. The representatives of the State were at all times aware that changes were being made for which extra compensation would be sought. They understood and consented to the procedure which was followed by Claimant. They agreed to provide a written modification but failed to do so after many requests. The waiver of the requirement that modifications to the contract be in writing is clear.

To allow the State to deny payment to Claimant by reason of its own derelictions in providing support services and in executing a written contract, while at the same time leading Claimant down the garden path in orally authorizing work on a weekly basis would be a gross injustice.

To be paid from Fund #011-35051-1200-0000 regarding Secretary of State Contract #73-5.

It is hereby ordered that the sum of $54,944.87 be and is hereby awarded to Claimant, Ara Services, Inc. (Successor to Fry Consultants, Inc.), in full satisfaction of any and all claims presented to the State of Illinois under the above-captioned cause.


author: Holderman,J.

text:
    (No. 75-CC-0935
    David Collins, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 7, 1978.

    Cohn, Carr, Korein, Kunin & Brennan, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman,J.

Claimant in this cause seeks the sum of $6,512.00 plus costs.

He bases his claim on work and duties allegedly performed for the Illinois Community College as a result of an oral contract of employment consisting of two phases.

He alleges he was hired under an oral contract to work in a liaison position, as a troubleshooter, teacher and administrator under Title 1, G.E.D. program, from November 1, 1972, to June 30, 1973. Originally he alleged he was to receive the sum of $10,000.00, but stated this was later changed to $8,000.00.

Under this contract, he was paid the sum of $1,600.00 leaving a total due of $6,400.00.

Claimant alleges he entered into an oral contract with Respondent to perform similar duties to those described above from 6:00 p.m. to 10:00 p.m. on a daily basis, receiving additional payment at the rate of $7.00 per hour. He claims he is entitled to receive the sum of $112.00 for services performed under this oral contract.

Claimant’s testimony is to the effect that these contracts were entered into during the third week of October, 1972, with Jake Jennings, a member of the Illinois Higher Board of Education, and Mr. Clifton Woods II, Junior College President of State Community College.

He was to work eight hours a day, five days a week at his liaison duties and his salary was to come from the Title 1 program, which was a federal grant, and later he was to be phased through the regular payroll and become a staff member of the State Community College.

He testified he was to begin working on November 1,1972, and continue until June 30,1973, working five days a week and eight hours a day as a liaison person. He testified he was told he would be paid when the money came in by J ake J ennings, Clifton Woods II and Curtis Thomas. The money was to come from the federal pay grant and he would be placed on the regular college staff.

In his second job as consultant, he worked from November 1,1972, until June 30,1973, according to his testimony, and did not recieve his full pay but was still entitled to 16 hours of pay. He stated he complained about not being paid to Curtis Thomas, Clifton Woods II and Jake Jennings. He stated he received the sum of $300.00 in payment for his consultant job.

Claimant further testified that his financial situation became so critical around the 1st of March, 1973, that he finally went to see President Woods who told him to come back the next morning when he would get some funds. He testified he did go back the next day and signed a contract between Claimant and the State Community College of East St. Louis for payment of $1,300.00 for work beginning from November 1, 1972, until June 30,1973. He testified he signed this contract under duress because he had been informed by Mr. William Matlach, fiscal officer for the Junior College Board, that if he did not sign this contract, he was not going to receive any money. Claimant stated he then signed the contract and release form. He testified he continued to work without receiving any pay although he was promised by President Woods that he would be paid in the future when the money came in.

The Respondent’s defense is to the effect that Claimant was not properly hired by the Illinois State College Board as shown by exhibits introduced by the defense dealing with the hiring and payment of personnel working for the college. The only contract introduced into evidence was the contract for $1,300.00 which was signed in March, 1973, long after the work had started and months after the alleged oral contract. This contract created an obligation on the part of the Illinois Junior College Board in the amount of $1,300.00, and a cancelled check in that amount which had been paid on March 20,1973, was introduced into evidence by Respondent showing payment in full.

The issues therefore settle down to a question of whether or not there was a contract and whether or not this contract was properly entered into by the parties.

Dr. Wellman, who testified for Respondent and was Executive Director of the Illinois Community College Board at the time, stated that the State College Board, along with other State agencies, had a limitation of a payment of $500.00 without a written contract. He further testified that all of the employees have written contracts and it was his understanding that this was a requirement of the State statute and was also the practice of the Board. He further testified that small items of less than $100.00 could be purchased but only in case of emergency. He further stated that the only contract with Claimant was the contract for $1,300.00.

Exhibits introduced by Respondent showed the contract for $1,300.00 was the only one that appeared in any of the minutes of the meetings of the College Board and does show the hiring of Claimant for the sum of $1,300.00. Mr.Wellman testified this was the only contract entered into with the Claimant and there was no one else who had the authority to enter into such a contract as it was a matter that had to be placed before the Board and put in writing. This was not done.

Mr. Wellman further testified that he did know that Claimant had done some work for various community groups but did not know whether or not he had done any teaching at the college.

It therefore appears from the evidence in the record that the only valid contract entered into according to the rules and regulations of the State of Illinois was the one for $1,300.00 for which Claimant has been paid.

Award denied.


text:
    (No. 75-CC-0965
    Garden City Envelope Co., Claimant, v. State of Illinois, Respondent.

      Order filed October 12, 1978.

   Per Curiam.

This matter comes before the Court on a joint stipulation between the Claimant and Respondent. Said stipulation states as follows:

“1. The claim herein, filed on February 25,1975, is based upon the alleged tortious act of the Department of General Services in failing to award contracts to Claimant, and by its complaint, seeks recovery of $50,00.00 in damages.
2. That Respondent’s specifications required that the envelopes referred to in the contract documents be printed with a union label, and such requirement was held on May 3,1973, to violate the United States Constitution and to violate public policy as well in Master Printer Association, a Division of Printing Industry of Illinois Association, Inc. v. Board of Trustees of Junior College District No. 508, City of Chicago and State of Illinois. (U.S. Dist. Ct., N. Dist. of Ill., E. Div.)
3. That Respondent did not award Claimant said contracts by reason of the fact that Claimant’s bid indicated that it would not print envelopes for Respondent with union labels, although Claimant’s bid was the low bid.
4. That the allegations of Claimant’s complaint that Respondent’s action in failing to award contracts to Claimant deprived Claimant of rights guaranteed to it by the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States are, by agreement of the parties, withdrawn from the complaint, and from consideration of this Court, subject to the Court accepting this stipulation and entering judgment in favor of the Claimant for the amount of $25,000.00.
5. That by reason of the decision in Master Printer Association, an effective defense of the claim herein cannot be made.
6. That the Claimant, through its counsel of record herein, has offered to settle its claim in full for the sum of $25,000.00, and Respondent, Department of General Services, through its Director, has authorized settlement of said claim in full for the sum of $25,000.00.
7. In consideration of the acceptance of its offer to settle its claim against Respondent, Claimant has agreed and by this stipulation does agree, that the entry of an award of $25,000.00 by this Court shall operate as a full release and relinquishment by Claimant, and a bar of all claims or causes of action that Claimant, has or may have against Respondent, its officers, agents, servants or employees, from the beginning of time to the date of execution of this stipulation.
8. Respondent Department, by and through its Director, after fully investigating the pertinent allegations of the complaint herein, as well as the factual background of the bid and contracts referred to therein, upon advice of its Departmental Counsel, does hereby authorize and direct the Attorney General of Illinois to execute this stipulation, and does represent to the Court of Claims of Illinois that the best interests of the State of Illinois will be served by the entry of an award by the Court to Claimant in the sum of $25,000.00.”

It appearing to the Court that this matter has been settled between the parties, an award is hereby made to the Claimant in the amount of $25,000.00.


author: Poch, J.

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

      Opinion filed May 15,1978.

    Lawrence E. Johnson, Attorney for Claimant.

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

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

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

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

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

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

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

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

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

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

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

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

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


text:
    (No. 75-CC-1193
    Central Office Equipment Company, Claimant, v. State of Illinois, Respondent.

      Order filed July 28,1978.

   Per Curiam.

Claimant in this action seeks to recover from Respondent the sum of $2,160.00 for time and services expended by Claimant pursuant to a “proposal” made by Claimant to the State of Illinois dated July 9,1973. This proposal was directed to the Secretary of State and proposed in general that Claimant perform an indepth study of the license plate warehousing, packaging, storage and distribution functions undertaken periodically by the Secretary of State’s office and to develop a blueprint of present facilities using exsisting equipment to implement an improved plan of operation.

The proposal, submitted by Claimant, contained the following final paragraph, to-wit:

“Our cost for doing the above work will be based upon hourly work and time, and will be priced not to exceed $5,000.00 We offer one concession in our plan, in that if we cannot give the Secretary of State the type of program listed above, or it is not satisfactory to the Secretary of State, there will be no charge for the work that goes into this procedure. We make the above offer because we feel we have the knowledge and background to give you the type of operating procedures desired by the Secretary of State. Our hope is that we may proceed with our proposal and be completed by October 10,1973.”

The State did not utilize the Claimant’s preliminary proposal and the evidence discloses that the procedure ultimately utilized by the State was a procedure from some other sources.

Respondent takes the position that the State had an absolute right under the contract to cancel the proposal and refuse payment of consideration.

This proposal was drawn by Claimant and submitted to Respondent for signing.

Respondent’s position is that it had the right and was justified in refusing to pay Claimant for time and labor expended in the performance of the contract.

The final paragraph of the contract drawn by Claimant, as cited above, is relied upon by Respondent in its denial of liability for payment.

Respondent cites the case of Illinois Steel Bridge Company u. State of Illinois, 7 75. On page 78 of Volume 7, the Court, in deciding said case, made the following observation:

“The contract establishes the rights and the liabilities of the parties thereto, and this Court has no power to change or modifiy its terms. The law permits parties competent to contract and free to do so, in the exercise of their judgment, to make their own contracts, and the proper function of Courts is to enforce such contracts as made, where they do not conflict with any rule of law or good morals or the declared public policy of the State. When the intention of the parties to a contract is ascertained it is the duty of the Courts to carry it out, and they cannot properly assume a guardianship over those who have the requisite capacity and are free to make such contracts as they choose, (Parker-Washington Co. v. Chicago, 267 Ill. 136) It is clearly manifest that the purpose of these provisions of the contract was to limit the compensation which Claimant should receive to the contract price and to bar it from any claim to extra compensation.”

In view of all the evidence submitted, it appears to the Court that Respondent’s position is correct. Said cause is therefore dismissed and award denied.


author: Polos, C.J.

text:
    (No. 75-CC-1309
    Ophen Falconer, Claimant, v. State of Illinois, Respondent.

      Opinion filed January 10, 1979.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property

Claimant has established that on October 1,1973, while a prisoner at Menard Penitentiary, he was told to leave a personal album containing various pictures with authorities at Menard, when he was taken to Rockford, Illinois, for a Post Conviction Hearing. Upon his return to Menard on January 16, 1974, the picture album could not be found. Claimant was thereafter told that the album had been destroyed.

This Court held in Doubling v. State, 32 Ill. Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

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

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

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

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

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

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

Claimant has established that the State of Illinois took actual physical possession of his property, and that the property was lost while in the possession of the State. Under these circumstances a presumption of negligence arises, which the State of Illinois has failed to rebut.

Claimant testified that he put a market value of $2.00 on each of the 212 pictures contained in the album, that the album which cost $.55 cents, and that there were acetates in the album which cost $.15 cents each. Claimant therefore claims damages in the amount of $447.20. It should be noted that Claimant had been collecting the pictures for a period of eight years.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $447.20, in satisfaction of his claim.


text:
    (No. 75-CC-1332
    Harry Deatherage and Mabel Deatherage, Claimants, v. State of Illinois, Respondent.

      Opinion filed July 25, 1978.

    Daily & Walker, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Polos, C.J.

Claimants, Mabel and Harry Deatherage have brought this action to recover for damages to their property allegedly caused by the re-grading of adjoining lands by the State of Illinois. Claimants contend that the State violated Ill.Rev.Stat. Ch. 42, §12-4, which provides, in pertinent part,

“Whenever a natural ditch or drain constructed in the course of natural drainage crosses a public highway...the highway authority shall construct and thereafter keep in repair and maintain a bridge or culvert of sufficient length, depth, height above the bed of the drain or ditch, and capacity to serve the needs of the public with respect to the drainage of the lands within the natural watershed of such drain, not only as such needs exist at the time of construction, but for all future time.”

In 1973, the Department of Transportation began construction of a highway known as Route 203 in Madison County, Illinois. The project included relocating and regrading a rail crossing approach on Maryville Road, at its intersection with Route 203. During the course of construction, the State interfered with drainage on three separate parcels of real estate.

The first parcel of real estate was referred to as the “home place”, and was located on Maryville Road immediately north of its intersection with Route 203. Prior to the start of construction, there was a culvert under Maryville Road at a low point in Claimant’s field, which drained into a storm sewer on the west side of Maryville Road. During the course of construction, the culvert was blocked by the new fill which was brought in by the State.

Mr. Deatherage testified that he advised the State’s project engineer that the land would flood if the fill was placed in the culvert, but the State persisted in it’s plans. The fill was put in place and later cut to form a new culvert. However, during the time the culvert was filled there was no drainage, and Claimants’ land flooded. The new culvert was placed about 150 to 200 feet north of the low point in the field, and Claimants’ field has flooded each year since then.

Claimant testified that as a result of the flooding on the “home place” he lost his planting of Indian corn, and a portion of his planting of soy beans in 1973. He said that his damages totalled $1,690.00.

The second parcel of real estate was a seven acre tract referred to as the “Borland property” which also fronts on Maryville Road. This property is across Highway 203 from the “home place.” Claimant had leased that property and farmed it for about 15 years prior to 1973. Due to the flooding in the field in 1973, he could not plant his soy bean crop as he had done previously, and Claimant said he was damaged in the amount of $703.00.

The third parcel of real estate with which we are concerned consists of two acres, and was referred to as “Knight’s Home Sites.” Claimant had farmed the land previously, and in 1973 had planted pumpkins in the field. Again because dirt brought in for elevating the highway, the water was directed to a new low area across the field of pumpkins, thus destroying the entire field of pumpkins and some blue grass sod. Claimant alleges that his damages in 1973 as a result of this flooding totalled $3,126.00.

The State’s engineer admitted that the drainage problems on these fields had been pointed out to him, that the areas in question did flood, and that he had jurisdiction over the entire job.

Claimant continued to experience flooding problems in both 1974 and 1975, and the final grading of the ditch leading to the new culvert was not completed until late July, 1975. Claimant testified that he suffered additional losses in 1974 in the amount of $1,404.00 and additional losses in 1975 in the amount of $2,315.00.

It appears that drainage problems on the property are continuing.

It is long been held that one who negligently alters the natural flow of water on the property of an adjacent landowner, and thereby causes damage, is liable to that landowner. Emerson v. State, 30 Ill.Ct.Cl. 420; Eimes v. Cleveland, Cincinnati, Chicago and St. Louis Railroad, 158 Ill. App. 557.

Here the testimony in uncontradicted that in performing construction on Highway 203, at its intersection with Maryville Road, the State interferred with the natural flow of water drainage from Claimants’ properties, causing damage to Claimants.

Respondent contends that Claimants’ computation of damages is imprecise, and insufficient on which to base an award. However, the Court finds Claimants’ testimony as to the estimates of damages was sufficient, and the Court further notes that Respondent has failed to present any evidence contradicting that testimony.

Claimants are therefore awarded the sum of $9,238.00.


text:
    (No. 75-CC-1371
    Public Electric Construction Company, Claimant, v. State of Illinois, Respondent.

      Opinion filed November 30, 1978.

    Glen A. Schwartz, Attorney for Claimant.
    William J. Scott, Attorney General; Glen P. Larner, Assistant Attorney General, for Respondent.
   Polos, C.J.

This claim arises out of a contract to install electronic surveillance systems at the Pontiac and State-ville Correctional Institutions. The original contract specified that prior to the installations of the equipment by Claimant, workers employed by the Department of Corrections were to complete certain preliminary installations of electrical wiring and parts in preparation for the work to be done by Claimant. Claimant’s bid for the project was thus based upon the assumption that Respondent would complete its part of the project within a certain time, in a certain manner and with certain parts and equipment.

Contrary to the terms of the contract, Respondent failed to make the preliminary installations, but, nevertheless, requested that Claimant install the equipment. Claimant was able to, and in fact did, install the equipment, but since the preliminary wiring was not installed, the equipment could not be connected to power sources in order to become operable. This situation made it necessary for Claimant to make a second trip to the institutions, after Respondent installed the wiring, to connect and activate the system. This required additional time and expense not contemplated by the parties originally.

Claimant was confronted with an additional, and unforseen, problem in that the electrical wiring and parts installed by Respondent were not the same as agreed to between the parties. Claimant was thus forced to obtain connecting parts different from those originally thought to be suitable to complete the project, and had to expend additional time and labor to adapt the equipment to Respondent’s unexpected choice of material and method of installation.

Both parties stipulated to the facts above and that the additional costs incurred by Claimant were due solely to Respondent’s actions. The joint stipulation states further that Claimant had to spend an additional $6,800.00 to complete its performance due to the delay and change of material.

This Court has previously held that actual expenses for delay occasioned by change of plans made by the State are recoverable. Divane Brothers Electric Co. v. State, 22 Ill.Ct.Cl. 546, Meyer Machine, Inc. v. State, 27 Ill.Ct.Cl. 72. From the above stipulated facts, it appears that Respondent made changes in plans relating to the timing of the project, choice of materials and method of installation, which caused Claimant additional expense.

Claimant is hereby awarded the sum of $6,800.00.


text:
    (No. 75-CC-1430
    Morton H. Jaffee and Frances E. Jaffee, etc., Claimant, v. State of Illinois, Respondent.

      Order filed December 18, 1978.

   Per Curiam.

Claimants, Morton H. Jaffee and Frances E. Jaffee, have brought this action, for themselves and purportedly as representatives of all owners of certain Bridge Revenue Refunding and Improvement Bonds, issued pursuant to an ordinance of the city of East St. Louis, Illinois, enacted on February 8, 1976, and pursuant to a certain trust agreement dated January 1, 1976, between the city of East St. Louis, Illinois, and East St. Louis Union Trust Company, of St. Louis, Missouri, as trustee.

Claimants seek to recover on behalf of the class the sum of $7,275,000.00 for loss of revenue allegedly due to construction of a toll free bridge by the Department of Transportation of the State of Illinois over the Mississippi River at East St. Louis.

The factual basis of the claim is undisputed. In 1948, the City of East St. Louis, Illinois, issued revenue bonds in the amount of $10,000,000.00 to finance construction of the Veterans Memorial Bridge (now the Martin Luther King Bridge) which spans the Mississippi River from a point in East St. Louis, Illinois, to a point in St. Louis, Missouri.

In 1956, the City of East St. Louis issued Bridge Revenue Refunding and Improvement Bonds in the amount of $15,500,000.00. These bonds were to refinance or refund the 1948 issue, and to finance the cost of constructing an expressway extension leading up to the bridge on the Illinois side in the city of East St. Louis.

The bond issue was authorized by an ordinance of the city of East St. Louis, passed January 1,1956. The ordiance provided that principal and interest on the new issue of bonds was payable solely from the net revenues of the bridge, which was a toll bridge. As security for the city’s obligations, a trust agreement was entered into with the St. Louis Union Trust Company of St. Louis, Missouri. That trust agreement, which was incorporated as part of the ordinance authorizing the issue, provided that the City was to pay all revenues of the bridge into the trust fund, and that the trust company was to pay principal and interest out of the fund to the bondholders as the bonds matured.

Article 7, Section 7.14 of the Trust Agreement, provided:

“The City convenants that, until the bonds secured hereby and the interest thereon shall have been paid of provisions for such payments shall have been made, it will not construct or cause to permit (where such permission is necessary) to be constructed a bridge, any part of which lies within the corporate limits of the City and which will or may divert traffic from the Veteran’s Memorial Bridge with a resultant decrease in revenues derived from the operation of the Veteran’s Memorial Bridge.”

In 1967, the State of Illinois completed construction of a new toll free bridge, known as the Poplar Street Bridge. The toll free bridge was in close proximity to the Martin Luther King Bridge and it is alleged that an approach to the bridge was within the corporate limits of the city of East St. Louis. Traffic from the Martin Luther King Bridge was diverted by the toll free bridge, and as a result revenues of the toll bridge declined steadily and a default occurred on July 1, 1974.

It is Claimants’ position that the State of Illinois tortiously impaired the obligations of the city of East St. Louis to the bondholders, in violation of Article I, Section 10 of the Constitution of the United States, which provides that “No State shall... pass any... law impairing the obligation of Contracts.”

The State of Illinois has moved to dismiss, contending alternatively the applicable statute of limitations has run, that the police powers of the State of Illinois were such that the State was free to build the Poplar Street Bridge, and that the bondholders assumed the risk of a new bridge being built when they purchased their bonds.

Claimant has also moved for summary judgment on the issue of liability, and has moved for a rehearing on its motion for certification of the class, which was denied by a Commissioner of this Court.

Section 22 of the “Court of Claims Act,” Ill. Rev. Stat. Ch. 27, §437.22, provides for a two year period of limitations for cases sounding in tort. The parties agree that Claimants action, for interference with a contractual relationship, sounds in tort.

Respondent asserts that Claimants’ cause of action, if any, accrued no later then 1967, when the toll free Poplar Street Bridge was opened to traffic. Claimants contend that their cause of action accrued on July 1,1974, when the bonds went into default. This action was filed on June 9, 1975. If the cause of action for interference with the contractual relationship between the City and the bondholders accrued at the opening of the toll free bridge, then the action is barred.

As a general rule, a cause of action arising out of negligence accrues, and the statute of limitations begins to run, at the time of the injury. A different rule obtains, however, where the tort arises out of a contractual relationship. In such an instance, the cause of action commences at the time of the breach of duty, not when the damage is sustained. Pennsylvania Co. v. Chicago, Milwaukee & St. Paul Ry. Co., 144 Ill. 197, 33 N.E. 415; West American Insurance Co., et. al., v. Lobianco, Ill. 69 2d 126, 370 N.E.2d 804. Thus if we determine that Claimants’ cause of action arises out of a contractual relationship, then we must conclude that the statute of limitations began to run at the time of the breach of that contract.

It is clear that the allegedly tortious conduct of the State of Illinois arose out of a contractual relationship. Claimants argue that not only did the State of Illinois tortiously impair the obligations of the City of East St. Louis to the bondholders, but that the State of Illinois was itself bound to the terms of the bond contract. Claimants cite United States ex rel. Hoffman v. City of Quincy, 71 U.S. (4 Wall.) 535, 554 (1867), where the Supreme Court said:

“Where a state has authorized a municipal corporation to contract...the state and the corporation in such cases, are equally bound.”

Claimants point out that the State has delegated authority to the City of East St. Louis to become contractually obligated to the bondholders. The Illinois Highway Code provides, in pertinent part:

“Each municipality has the power:
(4) To borrow money, make and issue bonds payable from and secured by a pledge of the net revenue of the bridge for the acquisition, and construction, reconstruction, improvement, enlargement, betterment or repair of which such bonds may be issued.
(6) To make contracts of every kind and nature and to execute all instruments necessary or convenient for the carrying out of the purposes of this Division of this Article;
(7) Without limitation of the foregoing, to borrow money and to accept grants from the United States or any person and to enter into contracts with the United States and such person in connection therewith.” Ill. Rev.Stat. Ch. 121, §10-802, 1975 (emphasis added).

The Illinois Highway Code further provides:

“Without limiting any other powers granted in this Division of this Article, each municipality has the power to provide for the payment of the cost of acquiring, construction, reconstructing, improving, enlarging bettering or repairing any bridge or for the payment of any portion of such cost by one or more issues of revenue bonds of the municipality, payable solely from the net revenue of such bridge. These bonds shall be authorized by ordinance of the corporate authorities of the municipality and shall be in substantially the form set forth in the ordinance.
It shall be plainly stated on the face of each bond in substance that the bond has been issued under the provisions of this Division of this Article and that the taxing power and general credit of the municipality issuing the bond are not pledged to the payment of the bond, or interest thereon, and that the bond and the interest thereon are payable solely from the net revenue of the bridge to acquire, construct, reconstruct, improve, enlarge, better or repair which the bond is issued.” Ill. Rev. Stat., Ch. 121, §10-803, 1975.
“An ordinance authorizing bonds under this Division of this Article may contain provisions, which shall be part of the contract with the holders of the bonds, as to...
(7) other agreements with the holders of the bonds or covenants or restrictions necessary or desirable to safeguard the interests of these holders.”Ill. Rev. Stat. Ch. 121, §10-802, 1975 (emphasis added).

We therefore find that Claimants’ cause of action, if any, arose out of a contractual relationship, and that the statute of limitations began to run when the contract was breached. The contractual provision alleged to have been breached provided that the city of East St. Louis would not construct, or cause to be constructed, a bridge within the corporate limits of the city which might divert revenues from the toll bridge. This covenant was breached with the opening of the Poplar Street Bridge in 1967, and the cause of action accrued at that time.

As the complaint was filed in 1975, we must con-elude that this action is barred by the applicable statute of limitations.

For the foregoing reasons, the motion of Respondent to dismiss this action, on the ground that it is barred by the period of limitations, is hereby granted.

      . Although we need not reach the issue we note that in Jackson Sawmill Co., et al. v. United States et. al., (decided July 12, 1978), the United States Court of Appeals for the Eighth Circuit ruled that the construction of the Poplar Street Bridge did not give rise to a constitutional claim under the contracts clause. The Court cited the following language from United States Trust Co. v. New Jersey, 431 U.S. 1, 21 (1977):
      Although the Contract Clause appears literally to proscibe “any” impairment, this Court observed in Blaisdell that “the prohibition is not an absolute one and is not to be read with literal exactness like a mathematical formula.”


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

      Opinion filed March 2, 1979.

   Polos, C.J.

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

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

This Court denied the instant claim, on the ground that Claimant had failed to establish negligence by the State in permitting the youth to escape. In petitioning for a rehearing, Claimants refer the Court to Kendrick v. State, and U.S. Fidelity & Guaranty Co. v. State, 23 Ill.Ct.Cl. 188, where the Court held that where it is shown that an inmate of a State correctional facility has escaped, a presumption of negligence arises and it is incumbent upon the State to come forward with evidence to show that it was not negligent in permitting the escape.

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

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

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

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

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

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

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

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

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

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

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

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

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


author: Holderman, J.

text:
    (No. 76-CC-0243
    Hoeffken Bros., Inc., Claimant, v. State of Illinois and Department Of Transportation, Respondent.

      Opinion filed April 4, 1979.

    Tyree C. Derrick, F. W. Mueller, and John J. Vassen, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant seeks to recover the sum of $68,391.88 which it alleges is due either as “extra work” pursuant to Article 101.15 of Respondent’s Standard Specifications for Road and Bridge Construction, or pursuant to Article 104.04 of said Standard Specifications providing for Changed Conditions.

The contract in question called for the widening and resurfacing of a section of Federal-aid Route No. 13, approximately one and one-half miles long in and near Fairview Heights, Illinois. The project number was U-235 (22) Sec. 34-1.

The road in question is approximately 40 years old and the contract was let on October 30,1973. Work was scheduled to proceed within ten days after the contract was received but due to an agreement between the Department of Transportation and the City of Fair-view Heights, Illinois, an extension was granted so the streets would not be torn up during the Christmas holiday. Work actually started in March of 1974.

The dispute centers around work to be done on the pavement which was replacement or patching. It is Claimant’s contention that patching was not contemplated when the contract was entered into and, according to their evidence, patching was paid for at the rate of between $50.00 and $60.00 per square yard; whereas replacement is approximately $15.00 per square yard.

The very first day the job was started, the engineer in charge requested Claimant to do patching. This was objected to by Claimant on the grounds that patching was not called for in the contract and was not anticipated in making the bid. The dispute between the State engineers and the contractor was resolved by an agreement that Claimant would submit a bill as a force account and that blacktop would be substituted for concrete.

The portion of the contract that deals with this subject was contained on page eight of the plans and was introduced as Claimant’s Exhibit #4 and stated:

“Where pavement patching is required as determined by the engineer it will be removed and replaced and will be paid for at the contract unit price for pavement replacement.”

Item No. 619001 of the pay items set forth in the contract, (Joint Exhibit 2) stated that the unit price for pavement replacement as established by the contract was $15.00 per square yard.

Article 105.05 of the Standard Specifications (Joint Exhibit 3) provides as follows:

“Coordination of Plans, Specifications, Supplemental Specifications, Proposal, and Special Provisions. These specifications, the Supplemental Specifications, plans, proposal, special provisions, and all supplementary documents are intended to describe a complete work and are essential parts of the contract. A requirement occurring in any of them is binding. In case of discrepancy, calculated dimensions will govern over scaled dimensions; plans will govern over specifications; supplemental specifications will govern over specifications; and special provisions will govern over both specifications and plans. The contractor shall take no advantage of any apparent error or omission in the plans or specifications, and the engineer shall be permitted to make such corrections and interpretaions as may be deemed necessary for the fulfillment of the intent of the plans specifications.”

Another item in dispute for which Claimant seeks to recover is for the amount due for traffic control where patching was being done. Claimant contends that where patching was done it is entitled to additional compensation to cover the traffic control expenses.

Traffic control with respect to patching is mentioned in the contract documents (Joint Exhibit 2). Standard Design 2315 (Joint Exhibit 1 and Respondent’s Exhibit A) sets forth the method of traffic control for pavement patching. Claimant was paid for this type of traffic control, item number XZ1088 of the pay items listed in the contract (Joint Exhibit 2) in the amount of $33,900.00.

While Claimant alleges the contract does not provide for patching, Standard Design 2116 is apart of the contract documents (Joint Exhibit 1 and Respondent’s Exhibit B) and refers to the patching work. This position is strengthened by Joint Exhibit 3, which included Article 105.05 of the Standard Specifications, in which it states that in case of discrepancy, plans will govern over specifications.

All the evidence tends to support Respondent’s position that both parties were fully aware of all the conditions of the contract which was entered into voluntarily and that there was no fraud or ambiguity.

Claimant makes the contention that the patching work should be classified as “extra work” and paid for accordingly

Section 101.15 of the Standard Specifications states:

“Extra Work. An item of work not provided for in the contract as awarded which is found essential to the satisfactory completion of the contract within its intended scope as determined by the engineer.”

It does not appear from the record that any of the work for which compensation is requested would fall into the category of “extra work” but only work that was contemplated at the time the contract was entered into.

Claimant’s contention is that there was no mention in the contract document about traffic control during patching. This is contradicted by Standard Design 2315 (Joint Exhibit 1) which described the method of traffic control for pavement patching. This, in the opinion of the Court, is what Claimant bid on and was paid accordingly.

On page 19 of Claimant’s brief, a statement is made that Section 602.13 of the specifications require the payment of $55.00 per square yard for the patching work done by Claimant. In fact, Section 602.13 provides the basis for pavement patching to be at the contract unit price per square yard for pavement removal and replacement.

Claimant, in its brief, makes an allegation that is not substantiated in the record. He alleges his costs were increased by the patching because he had to use jack hammers rather than back hoes. The fact, although not appearing in the record, is that Claimant used a back hoe for this patching instead of a jack hammer.

It is the finding of this Court that Claimant was aware when the contract was entered into between the parties of the paragraph on page eight of the plans which stated that pavement patching as required would be paid for at the contract unit price for pavement replacement, and that the unit price for pavement replacement was $15.00 per square yard and that this price was included in the contract between Claimant and Respondent.

The Court also finds that in accordance with the Standard Specifications, Article 105.05 providing that plans governed over specifications in the event of a discrepancy, likewise constitutes a part of the contract between the parties.

It is the further finding of this Court that no discrepancy existed and the fact that the patching work and contract documents quite clearly indicated the need for patching and the amount to be paid therefore.

The Court further finds that there is nothing in the contract documents indicating that the patching work was to have been paid at the rate of $50.00 per square yard.

In cases involving the enforcement of a contract, there is a general principle that is often repeated by the Courts. In substance, it states that when parties are competent to contract and they enter into a contract without fraud, then it is of no concern to the Court whether they entered into the contract with wisdom or folly. If the parties overlook a condition which they would perhaps have provided for if it had occurred to them, the Court will not guess as to what provision they would have made, nor by construction will the Court read into an instrument a term on the presumption they most likely would have included the term if they had thought of it. See Green v. Ashland State Bank, 356 Ill. 174, (183); Stipanowich v. Sleeth, 349 Ill. 98, (103, 105).

Award is hereby denied.


text:
    (No. 76-CC-0263
    Sioux City & New Orleans Barge Lines, Inc., Claimant, v. State of Illinois, Respondent.

      Opinion filed September 8, 1978.

    Theodore C. Robinson, Attorney for Claimant.
    William J. Scott, Attorney General; John W. Purney, Assistant Attorney General, for Respondent.
   Holderman, J.

Sioux City & New Orleans Barge Lines, Inc. filed a claim against the State of Illinois to recover damages sustained by their towboat, Waverly, when the Ruby Street Bridge in Joliet, owned and operated by Respondent, failed to open.

On the morning of September 8,1973, the Waverly was proceeding south on the Illinois River, pushing six barges bound for St. Louis. The weather was clear and there was no appreciable amount of wind or current.

The pilot of the Waverly had been a river boat captain for 17 years. When he was approximately one-quarter mile from the bridge, he slowed the Waverly’s engines to dead slow before giving a long blast on the boat’s horn, which is the customary and usual signal for requesting the bridge to open.

It was necessary that the bridge be opened because while the barges were low enough to go under the bridge, the Waverly’s superstructure, which was a permanent superstructure, was high enough that it would not clear the bridge unless the bridge was open.

The bridgetender responded to the Waverly’s blast with the usual signal on a whistle and switched on a green light, which is the normal signal indicating the bridge would open. The pilot was able to see one of the vehicular guardrails with its blinking red lights go down, a further indication that it was safe to proceed.

The Waverly continued downstream and when the boat was approximately 600 feet from the bridge, the pilot realized the bridge was not going to open in time to allow the tow to go through. He put the engines in reverse as hard as he could but the momentum of the boat and loaded barges, a combined weight of about 9,000 tons, kept the flotilla moving ahead.

It was not until the first barge was under the bridge that the bridgetender sounded the danger signal of four or five short whistle blasts and changed the light from green to red.

The testimony of the pilot was uncontradicted and the record shows that after the Waverly had been removed from under the bridge, the bridge was operable and there appeared to be nothing wrong with the machinery that raised and lowered the bridge.

This case closely parallels the case of Federal Barge Lines, Inc. v. State of Illinois, 29 Ill.Ct.Cl. 25, in which an identical set of facts are presented. In that case, the Court quoted the case of Fabick Tugboat Rental Co., Inc. v. State of Illinois, 21 Ill.Ct.Cl. 360, in which the Court stated:

“We are of the opinion that failing to raise the bridge when it had ample notice of the approach of the vessel, was a neglect of duty on the part of the Respondent. The State of Illinois, acting by and through its agent, was guilty of negligence, which proximately caused the damages complained of by the Claimant. In the case of Clement v. Metropolitan West Side El. Ry. Co., 123 Fed. 271 (C.C.A. 7th Cir., 1903) which involves facts similar to those in the instant case, the Court said:
“A bridge spinning a navigable river is an obstruction to navigation tolerated because of necessity and convenience to commerce upon land. Such a structure must be so maintained and operated that the navigation may not be impeded more than is absolutely necessary, the right of navigation being paramount. It is incumbent upon the owner that the bridge be so constructed that it may be readily opened to admit the passage of craft, and maintained in suitable condition thereto. It is also his duty to place in charge those who are competent to operate the bridge, to watch for signals, and to open the bridge for the passage of vessels, and for the performance of such delegated duty he is responsible. It is also his duty to equip the bridge with proper lights giving warning of the position of the bridge and of its opening and closing. If for any reason the bridge cannot be opened, proper signals should be given to that effect such as will warn the approaching vessel in time to heave to. A vessel, having given the proper signal to open the bridge and prudently proceeding under slow speed has, in the absence of proper warning, the right to assume that the bridge will be timely opened for passage. She is not bound to heave to until the bridge has been swung or raised and locked, and to critically examine the situation before proceeding (City of Chicago v. Mullen, 54 C.C.A. 94, 116 Fed. 292) but may carefully proceed at slow speed upon the assumption that the bridge will open in response to the signal, and may so proceed until such time as it appears by proper warning, or in reasonable view of the situation, that the bridge will not be opened (Majnistee Lumber Company v. City of Chicago (D.C.), 44 Fed. 87; Central Railroad Company of New Jersey v. Pennsylvania Railroad Company, 8 C.C.A. 86, 59 Fed. 192), when it becomes the duty of the vessel, if possible, to stop and, if necessary, to go astern.”

A similar situation presented to this Court was the case of J. E. Vickers, et. al. v. State of Illinois, 22 Ill.Ct.Cl. 660.

Claimant alleges that it sustained repairs in the amount of $14,403.66 and loss of services for the Waverly for a 15 day period while it was being repaired.

The evidence indicates that the Waverly would have been in active service if it had not been damaged and, consequently, claimant suffered damages for the period of time it was idle as a result of said accident. Evidence in the record indicates that to charter a similar vessel for 15 days would cost $60.00 per hour, or $1,400.00 per day. This figure, however, varies with the market demand. Claimant also offered evidence that its losses resulting from the deprivation of the use of the Waverly amounted to $800.00 per day. This figure is somewhat uncertain and the Court believes compensation for loss in the amount of $500.00 per day is fair.

It is the opinion of this Court that Claimant was not guilty of contributory negligence and that the only negligence involved was that of Respondent by its failure to give the red light to the oncoming tow in sufficient time so it could stop. This it failed to do and damages complained of resulted.

Claimant’s damages would be as follows:

Sum expended for repairs $14,403.66

Loss of use for 15 days $500.00 per day 7,500.00

Total $21,903.66

An award is hereby granted to Claimant in the sum of $21,903.66.


text:
    (No. 76-CC-0271
    Felton Peck, Claimant, v. State of Illinois, Respondent.

      Opinion filed March 2, 1979.

      Cathleen Cohen and Jan Keleher, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Polos, C.J.

Claimant, an inmate of an Illinois correctional facility, has brought this action to recover the value of certain items of personal property which he alleges were lost during his incarceration as a result of negligence by employees of the State of Illinois.

In April, 1974, Claimant was transferred from the Stateville Correctional Center to the Cook County Court Building. Prior to his transfer, Stateville authorities took possession of all property in his cell. When Claimant was transferred back to Stateville in September, 1974, his property was not returned to him.

Claimant alleges that the items of property taken from him included a Smith-Corona typewriter, a photo book and pictures, his sweatshirt, one bar of soap, a pair of socks, bath towels, face towels, pens and postcards, all of which had a value of $154.55.

Claimant also contends that three manuscripts which he had written were also taken by Respondent and not returned to him.He values the manuscripts at $5,000.00, and bases the evaluation on a conversation he had with a representative from the Christian Science Monitor concerning publication of the manuscripts, and an estimate of the number of hours which he worked on them.

This Court has held that when the State takes actual physical possession of the property of an inmate, it must use reasonable care to protect that property and return it to the inmate . Doubling v. State, 32 Ill.Ct.Cl. 1. We have further held that where the fact of a bailment has been established, a presumption of negligence arises where the State has failed to return an inmate’s property.

Claimant has shown by a preponderance of the evidence, that the State took actual physical possession of his property, and that it failed to return that property. The State has presented no evidence rebutting the presumption of negligence which arises in such circumstances.

We further find that Claimant has established the value of various items of his personal property at $154.55. We are unable, however, to award Claimant monetary damages for the loss of his manuscripts. The only testimony as to their value came from Claimant himself, and was based upon his own estimates of their worth. We do not feel that Claimant has established, by a preponderance of the evidence, the value of those manuscripts.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $154.55, in full satisfaction of his claim.


text:
    (No. 76-CC-0340
    Daisy Sue Worley, Administratrix of the Estate of Maurice L. Worley, Claimant, v. State of Illinois and Department of Transportation, Respondent.

      Opinion filed December 8, 1978.

      John R. Glidden, of Hartzell, Glidden, Tucker & Neff, Attorney for Claimant.
    William J. Scott, Attorney General; M.J. Simhauser, Special Assistant Attorney General, for Respondent.
   Poch, J.

Claimant, Daisy Sue Worley, Administratrix of her late husband, Maurice L. Worley, brought this action to recover damages for his death.

Claimant contends that the death of her husband was caused by negligence of the Department of Transportation in the maintenance and failure to warn of a condition adjacent to a public highway.

The issues in this case are:

1. Whether there was any evidence to show due care and freedom from contributory negligence on the part of the defendant;

2. Whether there was any evidence introduced to show actual or constructive notice on the part of the State as to a railroad’s placement of boulders on an embankment adjacent to a public highway a few hours prior to an accident;

3. Whether the State had a duty to erect a barricade to prevent motorists from intentionally driving off the surface of a highway at the end of a road.

This claim arises out of an accident which occurred on September 15, 1973, on old US Route 34 in Henderson County, Illinois. The particular area in question is the old highway US Route 34 which, prior to this occurrence, had been replaced by a new Route 34 which bypasses the Village of Gulfport. At the point in question, the old Route 34 passes under the Burlington Northern Railroad tracks through a viaduct. Said railroad Company had filled in the viaduct and build the embankment with sand and dirt due to a high water flood occurring in 1965, which forced the railroad to discontinue usage of the railway. On the day prior to the accident large boulders were deposited by the Burlington Northern Railroad upon the embankment. Apparently there was no prior notice of the railroad’s intention to take this action.

The old US Route 34 leading up to the dead end in question, had been used to aid in shortcuts taken by motorcyclists such as the decedent. On the night of the accident, Maurice L. Worley had been observed having taken a tumble in front of the Western Tavern in Gulf-port as witnessed and testified by two police officers who tried to assist the decedent. However, Mr. Worley, bleeding from a head wound profusely, refused all assistance, mounted his motorcycle and drove off. Shortly thereafter, he ran a stop sign at a nearby intersection, upon which the officers pursued him using their red lights and siren. Mr. Worley then headed toward the dead end of Route 34 at a speed greater than 60 m.p.h. His apparent flight from the police ended in the boulders which he had reached without even having made skid marks before leaving the road, according to testimony.

Evidence introduced that the road in question ended at a railroad embankment. The State had widened the road and built a space for vehicles to turn around at the road’s end. Signs warning motorists of the dead end in the road ahead had been erected along the sides of the road prior to reaching the dead end.

From the record of the proceedings and transcript of the evidence it is the finding of the Court that the death of the decedent was due to the failure of the Claimant to show due care and freedom from contributory negligence on the part of the decedent, nor was evidence introduced to show actual or constructive notice on the part of the State as to the railroad’s placement of boulders on the embankment adjacent to a public highway a few hours before the accident.

There was no duty on the State to erect a barricade to prevent motorists from intentionally driving off the surface of a highway at the end of the road; the fact is that the decedent had full knowledge of the fact that the road was terminated at said area and knew the surroundings well.

For the above reasons the claim is denied.


text:
    (No. 76-CC-0808
    Warren D. Reddock, Claimant, v. State of Illinois, Respondent.

      Opinion filed December 18, 1978.

    William C. Washburn, Jr., Attorney for Claimant.
    William J. Scott, Attorney General; Richard Grossman and James Stola, , Assistant Attorneys General, for Respondent.
   Polos, C.J.

Claimant, Warren D. Reddock, has brought this action to recover for injuries he suffered while an inmate at the Stateville Correctional Center at Joliet, Illinois. Reddock was injured while using a metal grinding machine in the Stateville Machine Shop, and he contends that the State of Illinois was negligent in failing to provide him a machine on which to work.

Prior to his incarceration at Stateville, Claimant was a licensed master plumber. As an inmate at State-ville, he was assigned to plumbing and other maintenance work.

On December 23, 1974, Claimant was assigned to work in the machine shop grinding parts for the installation of laboratories.

The machine Claimant used was an electric power wheel grinder, designed for heavy work and grinding all types of metal. The grinding wheel was originally 18 to 20 inches in diameter, but had been reduced in size over a period of time through constant use.

The grinder was equipped with a wheel guard, which was a small shelf-like appurtenance used to rest the object being ground, and to prevent objects from being pulled into the machine. The protective guard was adjustable, and was placed inward to close the gap between the grinding wheel and the guard as the grinding wheel was reduced in size.

On December 23, 1974, while using the grinder, Claimant’s right index finger became jammed between the metal guard and the wheel while he was grinding a piece of three inch pipe nipple. The guard had been adjusted to its maximum inward position, but because the wheel had been reduced in size through use, a one and a half to two inch gap was left between the wheel and the guard. Claimant testified that on several occasions prior to his injury he had requested that the wheel be replaced. However, on each such occasion he was told that there were no wheels in stock, and that none could be purchased because the prison budget was completely expended.

Claimant was instructed by one Joseph Stalzer, the machine shop foreman, to continue to use the grinding machine. Claimant said that while other grinding machines were in the machine shop, he was specifically instructed by his supervisors not to use any other machine.

This Court has held that the State of Illinois owes a duty to inmates of its penal institutions to provide them with safe conditions under which to perform their assigned work. In order to recover in this action, Claimant bears the burden of proving, by preponderance of the evidence, that the State breached its duty of care, that he was free of contributory negligence, and that the negligence of the State of Illinois was the proximate cause of his injury. Morris v. State, 23 Ill.Ct.Cl. 91; Hoskins v. State, 25 Ill.Ct.Cl. 234, 237.

We find that Claimant has proven that Respondent failed to provide him with a safe environment in which to perform his assigned tasks. Prior to the occurrence Claimant had complained to supervisory personnel that the grinding wheel was badly worn and dangerous, but was ordered to continue working on the machine. The dangerous condition of the machine clearly appears on the face of the record, and it is equally clear that supervisory personnel in the prison machine shop had notice of the condition prior to Claimant’s injury.

We also find that Claimant has established his freedom from contributory negligence. This Court has recognized that an inmate of a penal institution is not ordinarily free to refuse to perform a task if he considers his working conditions unsafe. An inmate of a penal institution does not have the liberty of choice available to a person in private industry, and must work under conditions that are assigned to him. In Moore v. State, 21 Ill.Ct.Cl. 282, at 290, we said:

“Claimant, as a convict, was required to take orders, and carry them out. To refuse to do so would subject him to disciplinary action, and the forfeiture of his limited privileges, including prompt consideration for parole. Thus, he did not occupy a position of independence which a person outside a penitentiary occupies. His choice of action being limited, he, therefore, kept silent and did as he was ordered. In fact, he did not possess, under the circumstances in this case, the freedom of choice inherent in doctrines of assumed risk and contributory negligence.”

Here it is clear that Claimant had no choice but to use the machine in question in its dangerous condition.

Claimant’s injury occurred when the force of the machine pulled his right index finger into the gap between the metal guard and the grinding wheel while the machine was in operation. If the wheel had been replaced, or the metal guard was in a proper position, there would have been no gap and Claimant’s injury would have been avoided. We therfore find that Respondent’s negligence was the proximate cause of Claimant’s injury.

As a result of being pulled into the machine, the fingernail and surrounding area of the Claimant’s right index finger was crushed, and half of the nail on his finger was torn off. Claimant testified that the finger itself is stiff, and he has a difficult time using his right hand to screw nuts or bolts, or to use the tools of the the plumbers trade. He said he is hampered in his work as a plumber, and the finger is sensitive to cold.

Claimant is hereby awarded the sum of $1,500.00 as compensatory damages.


text:
    (No. 76-CC-0822
    Marion Anderson, Claimant, v. State of Illinois, Respondent.

      Opinion filed November 2,1978.

    Barbara J. Hillman, Cornfield & Feldman, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Polos, C.J.

Claimant, Marion Anderson, has brought this action seeking to recover back pay for a period during which she was improperly discharged from her employment at the Andrew McFarland Zone Center of the Department of Mental Health and Developmental Disabilities of the State of Illinois. The sole issue in the case appears to be whether Claimant properly mitigated her damages during the period of her discharge.

On April 3,1974, the Department of Mental Health and Developmental Disabilities of the State of Illinois discharged Claimant. Pursuant to the Personnel Code of the State of Illinois, Claimant appealed this decision, and on June 16,1975, a judge of the Circuit Court for the Seventh Judicial Circuit of Illinois held her discharge improper and ordered her reinstated to her former position. Claimant was so reinstated on July 1, 1975.

The Claimant had been hospitalized on December 9,1973, and was under a physician’s care until June 11, 1974, when she was released by her doctor to return to work. Claimant computes the period for which she seeks damages for her wrongful discharge from June 11,1974, to July 1,1975, the date of her reinstatement. Claimant computes her lost salary during the period as $8,560.46.

On June 13, 1974, Claimant applied for Unemployment Compensation. She received 26 weeks of compensation, plus extended benefits, which totalled $2,280.00.

On June 18, 1974, Claimant applied for employment with the Springfield Mass Transit District. She was denied employment by the District, and subsequently filed a claim with the Fair Employment Practices Commission, contending that she was denied employment on racial grounds. On July 17, 1974, the Fair Employment Practices Commission ruled against Claimant.

Claimant testified that during the course of her discharge she also registered at the Illinois State Employment Service, and applied for cleaning work at retail stores. However, it appears that during the entire period of her discharge Claimant was unable to find employment.

This Court has long held that where a Civil Service Employee is illegally prevented from performing his duties, he is entitled to back salary if he is subsequently reinstated. However, he must do all in his power to mitigate his damages. Cordes v. State, 24 Ill.Ct.Cl. 491; Bryant v. State, 25 Ill.Ct.Cl. 87.

In Schneider v. State, 22 Ill.Ct.Cl. 453, at 463, this Court said:

“It is well settled in this State that a Claimant must do all in his power to mitigate damages, and we do not feel that Claimant has done what the law requires of him in mitigation and, in that regard, sitting as a jury, we have the right to fix the damages, and make an award, which we believe would be fair to all concerned. We are however, not bound by the bill of particulars, stipulation or answers to interrogatories, and can arrive at a figure in addition to the deductions made for other earnings .. .”.

See also, Sullivan v. State, 26 Ill.Ct.Cl. 117.

Here the evidence before the Court shows that Claimant did make some effort to mitigate damages, in applying for work with the Springfield Mass Transit District, and at retail stores. However, the Court does not feel that these efforts, during the course of a one year period from June 11,1974, to July 1,1975, constituted a full effort by Claimant to mitigage her damages.

The Court also notes that during this period, Claimant received the sum of $2,880.00 in unemployment compensation, which must be deducted from the amount Claimant would have earned had she remained in State employment in computing the amount of damages to which she may be entitled.

The Court feels that for the foregoing reasons, Claimant should be awarded the sum of $2,500.00, as compensation for her wrongful discharge.

It is therefore ordered that Claimant is, and hereby is awarded the sum of $2,500.00


text:
    (No. 76-CC-0829
    Loretta Koester, Claimant, v. State of Illinois, Respondent.

      Opinion filed January 16, 1979.

   Polos, C.J.

This is a claim by a court reporter for expenses incurred in providing a transcription of a criminal trial to a defendant as required by statute. The cause is before the Court on the Respondent’s stipulation. That stipulation establishes that Judge Carl H. Becker, a Judge of the Circuit Court, 20th Judicial Circuit, ordered Claimant to make a transcript of a criminal proceeding available to a defendant. Judge Barker was authorized by virtue of his office to order the transcript, and in fact was required to do so by statute. The cost of the transcription was $151.80, but at the time the transcript was ordered, funds sufficient to pay for the transcript had not been appropriated.

The issue before the Court is whether this Court may, in the absence of appropriated funds, grant an award which would effect a deficiency appropriation.

This cause comes within the rule set forth by this Court in Beane v. State of Illinois, 31 Ill.Ct.Cl. 155, and by the Illinois Supreme Court in Fergus v. Brady, Ill. 277, 272, 279-280, wherein expenditures “expressly authorized by law” are permitted to be made in excess of monies apropriated.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $151.80.