text:
    (No. 80-CC-0952
    Niel P. Hewitt, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 31, 1981.

    Hupp, Irion & Reagan (George C. Hupp, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Andrew R. Jarett, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This is a claim brought by Niel P. Hewitt against the State of Illinois for $1,323.19, the amount of damages caused to a 1973 Ford automobile, as a result of being struck by a State of Illinois snowplow. Claimant has charged the State’s employee with the negligent operation of the snowplow proximately causing the damage to Claimant’s vehicle.

Following the Court’s denial of Respondent’s motion to dismiss, a hearing was held before the undersigned commissioner on May 12, 1981. In lieu of testimony, the parties stipulated to the facts of the accident in question, summarized as follows:

On January 26, 1978, at or about 12:00 p.m. (noon), Claimant was driving his then undamaged 1973 Ford Torino southbound on Route 88 near Manlius, Illinois. At a point approximately three miles north of Interstate 80, Claimant’s vehicle became stuck in a large snowdrift in the southbound lane of traffic. Unable to move the car, Claimant left it in the southbound lane of traffic stuck in the snowdrift, began hitchhiking, and obtained a ride to a hotel three miles away.

At approximately 11:15 p.m. on January 27, 1978, almost 36 hours after Claimant abandoned his vehicle, a State snowplow, being operated by State employee Gail Glenn in the scope of his employment, was plowing snow off Route 88’s north and southbound lanes, in the area north of Interstate 80.

After making a path through the northbound lane of Route 88, Glenn turned the plow around and made a path through the southbound lane. Shortly thereafter, Mr. Dick Bussan, supervisor of operations, drove through the area, discovered Claimant’s vehicle buried in the snow, called a tow truck, and discovered that the vehicle was damaged, apparently struck by the State snowplow.

The particular snowdrift that Mr. Glenn was trying to remove from Route 88 at the time of the accident was approximately 350 feet in length. It covered both lanes of traffic and was approximately 10 feet in height. It was beneath this drift that Claimant’s abandoned vehicle was completely buried. Neither the vehicle or any part of it was visible to Mr. Glenn or his passenger, State employee Jim Norway, prior to the accident.

The parties have waived briefs and have agreed that the case should be decided on the foregoing stipulated facts presented at the hearing on May 12, 1981.

It is clear that the Respondent had a perfect right to be operating its snowplow on Route 88 at the time of the accident. In fact, the act of removing snow from State highways is surely in furtherance of the legal duty imposed upon the State to keep highways reasonably safe for use as highways. Reidy v. State of Illinois, 31 Ill. Ct. Cl. 16.

Operators of State vehicles, however, are charged with the same duty of care as other drivers upon the highways and are liable for damages proximately caused by their negligent acts. (Santiago v. State, 31 Ill. Ct. Cl. 332.) The question in the case at bar is whether Respondent’s employee, Mr. Glenn, was in the exercise of ordinary care before and at the time his plow struck Claimant’s vehicle.

It is apparent from the stipulated facts, that at the time of the collision, Claimant’s vehicle was completely buried in a snowdrift, directly in the southbound lane of traffic. The vehicle was wholly concealed from the view of Mr. Glenn as he was attempting to clear Route 88 for traffic. In light of these facts, it is the finding and the opinion of the undersigned commissioner that a finding of negligence against Respondent’s employee, Mr. Glenn, is not warranted.

The accident in question was a rear-end collision, Mr. Glenn being the rear driver. While it was usually thought that rear drivers were guilty of negligence as a matter of law as to their collision with front vehicles, that is no longer the law. (Glenn v. Mosley (1976), 39 Ill. App. 3d 172, 350 N.E.2d 219.) The present view as to rear-end collisions was stated in Burgdorff v. International Business Machines Corporation (1979), 74 Ill. App. 3d 158, 163, 392 N.E.2d 183:

“A rear-end collision does not automatically create an inference as a matter of law that the driver of the rear car was negligent, or that he was following too closely or driving too fast for conditions. It is the responsibility of the trier of fact to determine whether the rear driver, in such accident, was acting reasonably under the circumstances, or that the accident was unavoidable.”

A driver’s duty of reasonable care, or course, includes keeping a proper lookout for other vehicles and keeping his vehicle under such control as to avoid collisions with other vehicles rightfully on the highway. It cannot be said, however, that a driver, such as Mr. Glenn in the instant case, has acted unreasonably where he has collided with a concealed vehicle located directly in the lane of traffic. A driver’s duty to keep a proper lookout means that he is bound to see that which he clearly should see and see nothing more. (Payne v. Kingsley (1965), 59 Ill. App. 2d 245, 207 N.E.2d 177.) A driver is also bound to drive at such a speed and keep his vehicle under such control that it can be safely stopped within the distance that objects can be seen ahead. (Glenn v. Mosley (1976), 39 Ill. App. 3d 172, 350 N.E.2d 219.) In short, it is not unreasonable in situations such as the one at bar, to fail to see that which is not visible. See Yanuskis v. State, 31 Ill. Ct. Cl. 377, and Kent v. Knox Motor Service, Inc. (1981), 95 Ill. App. 3d 223, 419 N.E.2d 1253.

The Court hereby finds that Respondent’s employee, Mr. Glenn, was not negligent. To hold that he was would place upon the State the impractical burden of searching through massive snow drifts for abandoned vehicles concealed on the highway’s lane of travel prior to snow removal operations.

In light of the foregoing, it is not necessary to discuss the issue of Claimant’s own negligence, and its possible effect on a question of damages.

It is hereby ordered that Mr. Hewitt’s claim against the State be, and hereby is, denied.


source: Caselaw Access Project

author: Holderman, J.

license: Public Domain

text:
    (No. 80-CC-1134
    Richard Black, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 22, 1981.

    Richard Black, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant, an inmate of Stateville Correctional Center, filed a claim seeking to recover $1,262.29 in damages for the conversion of his personal property by agents of Respondent.

In late February 1979, the population of cell house F, of which Claimant was a resident, was transferred to cell, house B-east so that an inspection could be made. Thereafter on March 1, 1979, the cells in F house were searched.

Before going to B house, Claimant and his two cell mates packed all of their property into five boxes. When they returned to their cell, they found the five boxes gone and Claimant’s television set would not work.

Claimant admitted that on March 1, 1979, the institution delivered to him a shakedown record form on which were listed the items removed from the cell and for which Claimant has filed this law suit. All of the items, now missing, were listed under the heading, “Contraband or Items in Excess of Authorized Limits.”

The form contained the following instructions:

“The above listed personal items in excess of authorized limits or not permitted have been placed in the custody of the Property Control employee. It is your responsibility to advise that employee, in writing, within ten (10) days of return to your cell if you wish to have these items sent home or disposed of.”

Claimant did not comply with the above instructions to advise the property control employee whether he wanted the items sent to his home or disposed of.

On March 9, 1979, he wrote a letter to the assistant warden Marie Hall telling her the property was missing.

Claimant takes the position that because he is serving a sentence of 100 years, he has no home other than Stateville and that therefore the provision of the Department of Corrections administrative regulations “Searches for and Control of Contraband,” section K, subparagraphs 1-4 should have applied to his case. Under section K, entitled “Disposal of Excess Personal Property Confiscated as Contraband,” it states as follows:

“2. Exceptions may be made only in the case of a resident who has no known family or friends; safe storage must then be provided.”

Paragraph 4 of the same section states:

“If the resident indicates his intent to grieve (AR 845) the confiscation of excessive authorized personal property, such property shall be secured at the institution until the grievance procedure is completed.”

It is Claimant’s contention that because of the length of his sentence he should be considered to be without a home other than Stateville. Despite this fact, he did maintain contact with his family in Chicago.

On July 11, 1979, Claimant’s grievance was heard and was found to have “no substance.” The institutional inquiry board found as follows:

“FINDINGS:
The Board finds that this resident’s grievance has no substance.
The basis for this finding is: No records of any claimed items being removed from cell.”

It is clear that the property, instead of being secured until the grievance procedure was completed, was dispersed and already unrecoverable as of the date of the grievance hearing.

The evidence discloses that on March 19, 1979, the institution shipped to Claimant’s father a carton of books. However, none of these books belonged to Claimant. When Claimant and his two cell mates put their property in the five boxes, their property was intermingled.

The institution, by a memorandum directed to the residents dated March 2, 1979, acknowledged there were complaints concerning the handling of personal property.

None of Claimant’s property, including his television set, has ever been returned to him. Some of his books were put in the institution library.

Respondent, by arbitrarily dispersing Claimant’s property before the conclusion of his grievance hearing, violated subparagraph 4, section K, of the Department of Correction’s regulations for disposing of excess personal property.

While it is true that Claimant did not comply specifically with the directions contained in the shakedown record form, his letter to assistant warden Hall was in effect the initiation of a grievance. The institution recognized that fact by setting up a special committee to hear grievances from the inmates. There was also no justification to arbitrarily dispose of a resident’s property before his complaint was heard.

Claimant’s exhibits Nos. 3 and 4 established the purchase of books amounting to $398.65 and a letter from his father, dated April 6, 1978, establishes the delivery to Claimant of relatively expensive sporting equipment. In addition, Claimant’s television set, turned over to an agent of respondent for repairs, was never returned to him.

Claimant’s claim that he should be awarded $1,117.07 for his property does not allow for depreciation.

It is the opinion of the commissioner hearing this case, after hearing all the evidence in said cause, that damages should be in the amount of seven hundred ($700.00) dollars.

An award is hereby entered in favor of Claimant in the amount of ($700.00) dollars.


author: Roe, C. J.

text:
    (No. 80-CC-1266
    R. H. Bishop & Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 1, 1982.

    Busch, Harrington & Porter (Kip R. Pope, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Sue M. Mueller and William E. Webber, Assistant Attorneys General, of counsel), for Respondent.
   Roe, C. J.

This, claim arises from certain work performed by the Claimant, R. H. Bishop and Company, in the building of the centralized computer facility being a State project through the Capital Development Board.

The Claimant submitted a bid on the heating portion of the premises, and also on the ventilation and air conditioning portion of the contract. The Claimant was awarded the ventilation and air conditioning contract, but was not a successful bidder on the heating contract.

During the course of construction, a dispute arose over installation of certain exhaust stacks from the emergency generators located in the building. It is the Claimant’s contention that the insulation of these stacks was the responsibility of the heating contractor rather than under his specifications on the ventilation and air conditioning contract.

It is the State’s position, and that of the Capital Development Board, that Claimant was to furnish this insulation which was done, and for which Claimant claims an additional $14,026.00. Mr. Charles L. Amancher testified that he was a mechanical engineer and prepared Claimant’s bids, and had been active in doing that type of work for over 20 years.

It is our opinion, after lengthy testimony, that the issue centers on an interpretation of the specifications contained in those furnished to Claimant under section 1.2 and subsections B and C. It may be seen under subsections B and C that the contractor has an option, which was acknowledged in the testimony. The contractor may either have these stacks made by an independent factory or may fabricate them itself under par. C. The only specific reference to insulation is in par. C-l, which gives the specifications as to how they are to be constructed “before application of insulation.” We note, however, in section B, subsection 3 that “Overall heat transfer coefficient shall be not greater than 0.35 BTU per hour/sq.ft./degree F. at 1000 degrees F. gas temperature.”

It is our opinion that the reasonable interpretation of these two sections is that the person responsible for the ventilation and air conditioning installation is to provide these stacks with insulation. The plain meaning of section B-3 to an engineer would be that insulation is required to conform to that specification of heat transfer coefficient.

It is further shown that the Claimant did have an item for insulation contained in his bid for approximately $2,000.00, and Claimant submitted no evidence to show whether this item was included in the heating contractor’s bid. Moreover, because this Court does not have equitable jurisdiction, an action for quantum meruit cannot succeed.

It is our opinion, therefore, that the specifications were sufficiently clear and that the contractor should be bound by his original bid. Accordingly, the claim is denied.


author: Poch, J.

text:
    (No. 80-CC-1320
    Butha Martin, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 10, 1981.

      Order on denial of rehearing filed January 11, 1982.

    Fellheimer Law Firm, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This" claim arises out of an occurrence at Pontiac Correctional Center. Claimant, Sergeant Butha Martin, was an officer at the Correctional Center. He had been residing alone in the officers’ quarters for some period of time. Due to an increase in the number of officers, Sergeant Martin was informed that he would be getting a roommate. A Mr. Sharp informed Mr. Martin that he was his new roommate and it was agreed that Mr. Martin would have to move a large amount of personal property to make room for Mr. Sharp.

Sometime thereafter, Mr. Martin was on leave and living in a Chicago apartment. At the request of Mr. Sharp, Mr. Martin gave his consent to have a large portion of his belongings moved into a storage area in the confines of the officers’ quarters, providing such areas were secured by lock and key. The movement was made under the supervision of Lieutenant Isenberg.

The property remained in this area for an estimated five to six months until it disappeared. No one had any knowledge as to what happened to the property. The only person who had entered the room of record was Mr. Sharp to obtain a coat and some uniforms for Mr. Martin. Sergeant Martin never entered the room during any of this time.

It was further shown in the record that while living in the officers’ quarters, the men were charged rent by a deduction from their pay checks and that Sergeant Martin’s deduction was not increased by virtue of the use of the storage area. It was also shown that these were simply spaces not in use and the prison officials did not routinely furnish storage space for property of their officers.

The Claimant, in his brief, has provided an extensive treatise on the law of bailment. The. facts in the record, however, are not persuasive that a bailment existed. The instant case indicates a landlord/tenant situation where the landlord is gratuitously giving additional space to the tenant for the storage of the tenant’s property. The property was removed at the request of officer Sharp for the convenience of officer Sharp and officer Martin, i.e., to give them more living space. Sergeant Martin simply gave consent to have his property moved from one area to another. These facts do not show a transfer of possession or title to the Department of Corrections.

Even if there was a bailment, the record is void of any evidence of negligence on the part of the Department of Corrections. The only evidence in the record is that the property was moved at the request of Mr. Sharp with the consent of the Claimant, Mr. Martin. There was testimony . that Mr. Martin stipulated that the property be moved to a locked area. There was also testimony that the area was locked immediately after the relocation and remained locked for a period of weeks when Mr. Sharp went back. Some five months later the property disappeared. Mr. Martin never examined the property or visited the area during the entire five-month period.

Therefore, for the above and foregoing reasons, the Court finds the issues in favor of the Respondent and against the Claimant.

It is hereby ordered that this claim be and the same is hereby denied.

ORDER ON DENIAL OF REHEARING

This matter coming on before this Court on Claimant’s petition for rehearing and Respondent having filed its objections and all parties having received due notice and the Court being fully advised in the premises:

Finds that there are no legal or factual reasons for this Court to vacate its opinion of November 10, 1981.

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


text:
    (No. 80-CC-1446
    James Feltes and Helen Feltes, Claimants, v. The State of Illinois, Respondent.

      Opinion filed August 31, 1981.

      Rehearing denied October 28, 1981.

    Edwin R. McCullough, for Claimants.
    Tyrone C. Fahner, Attorney General (John R. Fanone, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is a claim brought by Claimants, James Feltes and Helen Feltes, for damage allegedly done to. their fence when Respondent’s snowplow allegedly piled snow against it and on top of it.

In August 1978, Claimant bought one-half acre of property located on the corner of Saddle Road and Roosevelt Road in Du Page County, Illinois. The property was fenced with a rustic, cedar fence which was then approximately 10 to 20 years old.

According to the testimony of Helen-Feltes, one night in late January or February of 1979, she watched out a window as a snowplow pushed snow from Roosevelt Road onto the fence. She testified she did not know who the snowplow belonged to but assumed that it was the property of the State of Illinois as Roosevelt Road is a State highway.

It is Claimants’ contention that prior to this heavy snowfall and prior to the cleaning of Roosevelt Road by the snowplow in question, the fence had stood straight without tilting. After the snow melted in March or April of 1979, it was noticed that the fence was sagging toward the middle, a couple of posts were leaning, and some of the rails had broken out.

The fence was approximately 160 feet long and the evidence is uncontradicted that the fence was deteriorated and rotten. After the snow had melted, it appeared that three sections of fence, or 30 feet, had been tilted and some of the rails were broken.

Claimants secured affidavits from two concerns as to the cost of replacing the entire fence with 160 feet of new cedar fencing and posts, one estimate being for $920.00 and the other for $787,00. The record is completely devoid of any evidence as to what it would cost to repair the three damaged sections of 10 feet each.

The record is silent as to the condition of the fence prior to the accident and the record is also silent as to whether or not the area of fence that was broken was the same area where the snow had been piled against the fence.

Claimants’ statements in their brief are as follows:

“Their split rail fence was totally destroyed when Respondent’s snowplows struck it and piled snow on it while plowing snow from Roosevelt Road onto their property.”
“Claimants have met their burden of proof and demonstrated that the entire fence was destroyed by Respondent’s negligence and trespass and must, therefore, be awarded damages to replace their fence.”

Both of these statements are untrue. The only direct evidence in the record is to the effect that approximately 30 feet of the entire 160 feet of fence was damaged.

The record is devoid of any testimony to the effect that the place where Claimant saw the snow being dumped was the same area that was damaged. Before Claimants can recover, they must prove the damage was occasioned by the negligence of the Respondent and that said negligence was the proximate cause of the damage complained of. See Kozak v. State of Illinois, 29 Ill. Ct. Cl. 95; also 26 Ill. Ct. Cl. 308, and cases therein cited.

Claimants having failed to meet their burden of proof that the negligence of the State caused the damage complained of, award is hereby denied.


text:
    (No. 80-CC-1541
    Goodwill Industries of Chicago and Cook County, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 26, 1982.

    Karaganis & Gold (William J. Karaganis, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This is a claim for electrical service rendered the State of Illinois, Department of Public Aid in the amount of $74,084.59. Demand for payment was allegedly made and refused on the grounds that the funds appropriated for such payments have lapsed. On June 18, 1980, we entered an order striking a large portion of the complaint. An objection to the motion to strike was filed two weeks later, followed by a motion to vacate two weeks after the objection. Respondent filed a response to said motion on July 29, 1980, and approximately a year later filed a supplemental response.

Essentially the issue raised in these motions was which statute of limitations applied to lapsed appropriation claims. We recently decided the issue in Goodwill Industries v. State, No. 80-CC-1775, opinion filed March 1,1982. Accordingly, the order of June 18, 1980, striking portions of the claim is vacated. On reconsideration of the statute of limitations issue, however, we still find that a portion of the claim is barred. The lease purporting to bind the Respondent provided that rent was to be paid the first day of every month beginning February 1, 1975. Therefore the cause of action for breach of the lease contract accrued when payment was not made, i.e., on February 2, 1975. The claim was not filed until February 29, 1980. Applying the five-year statute of limitations for contracts, the portion of the claim relating to the month of February 1975 is barred.

In its supplemental response Respondent stated that if we were to grant Claimant’s motion to vacate, it would be willing to stipulate to an award of the full amount claimed, based on the departmental report on the matter. On April 2, 1982, a joint stipulation was entered into wherein an award in the amount of $71,805.57 was agreed to, also based upon the departmental report. In each instance the departmental report, which is prima facie evidence of the facts contained therein, was incorporated by reference into the stipulation. It is well settled that this court is not bound by such stipulation and, having carefully analyzed the record, we decline to enter judgment in the amount agreed to.

This claim covers a period of four fiscal years, 1975 through 1978. In fiscal year 1975 a total of $150,350.36 lapsed from the line item appropriation from which this claim could have been paid (001-47801-1200-00-00), and was returned to the State treasury. That sum was the uncommitted balance and the line item was not obligated by the amount of this claim. The amount of the claim relating to fiscal year 1975 was $8,423.69. Analysis of the bill of particulars for this sum reveals that $1,408.00 related to lighting power usage for the month of February 1975, and therefore that much of the amount claimed is barred by the statute of limitations. Furthermore, a portion of the claim for electricity for air conditioning related to the same period. The amount expended by Claimant for the period of February 14, 1975, to March 18, 1975, was $4,558.24 of which Respondent was chargeable for 7.23%. There were 32 days in that period, 15 of which were in February 1975. By dividing the total for that period by the days in that period (thereby arriving at a daily charge), then multiplying that quotient by 7.23%, the percentage of which the department was chargeable, (the product being the daily rate for the department) and then multiplying the product by the number of days in February 1975 (15), the end result is the amount of the claim for electricity for the air conditioning which is barred. That figure is $154.48. When combined with $1,408.00, the total amount barred for fiscal year 1975 is $1,562.48. Therefore, we find that $6,861.21 is due and owing Claimant and enter an award accordingly.

In fiscal year 1976 a total of $48,689.34 lapsed from fund No. 001-47810-1200-00-00, the line item from which this claim could have been paid, and was returned to the State treasury. However, that entire sum was obligated and the amount of the uncommitted balance was zero. The line item was not committed by the amount claimed for that fiscal year, $21,576.24. Therefore, we are constrained by law to deny this portion of the claim. Making an award in this instance would essentially be granting the department an additional appropriation which is the sole prerogative of the legislature according to the 1970 Illinois Constitution. Furthermore, incurring obligations in excess of funds appropriated is specifically barred by statute.

However, an analysis of the bill of particulars relating to fiscal year 1976 shows that a portion of the amount claimed actually related to fiscal year 1975, for which there were sufficient funds for payment. The electricity for air conditioning chargeable to Respondent for the period of June 16, 1975, to July 1, 1975, was erroneously included on the fiscal.year 1976 statement. Computing the proper amount chargeable to the Respondent in the same manner as we prorated the February 1975 billing, we find that $190.52 was due and owing and we hereby make an award accordingly.

The amount claimed relating to fiscal year 1977 was $22,832.17. In that fiscal year $279,094.13 lapsed from fund No. 001-47810-1200-00-00, the line item from which this claim could have been paid, and was returned to the State treasury. Of that amount, $73,144.38 was uncommitted. Even though the fund was not committed by the amount of this portion of the claim, the uncommitted balance was sufficient to cover it.

However, an examination of Claimant’s bill of particulars reveals that a portion of the billing for electricity for air conditioning during the fiscal year 1977 was erroneously included and should properly have been chargeable to fiscal year 1976. That portion related to the period of June 14, 1976, to July 1, 1976. Prorating the amount chargeable to the department for that period in the same manner as above, we find that $352.65 is barred because of the insufficient lapsing of funds for fiscal year 1976 as described above. Therefore, we find that $22,479.52 is due and owing to Claimant and we enter an award accordingly.

Following fiscal year 1978, $48,679.76 lapsed from fund No. 001-47810-1200-00-00, the line item from which this claim could have been paid. $16,444.59 was the balance of uncommitted funds which lapsed. The fund was not committed by the portion of this claim relating to that fiscal year, $21,252.49, an amount in excess of the uncommitted balance. No other claims have been made against this 1978 line item. Therefore we are able to make an award of the entire unobligated balance, $16,444.59 To make an award in excess of that amount would be effectually granting the department a deficiency appropriation.

However, the bill of particulars indicates that a portion of the claim relating to fiscal year 1978 actually related to fiscal year 1977. That portion was for electricity for air conditioning for the period of June 15, 1977, through June 30, 1977. Prorating the amount chargeable to the department in the same manner as above, we find that $354.31 was a fiscal year 1977 obligation for which sufficient funds for payment did lapse and we enter an award accordingly.

Adding up the amounts due and owing Claimant as set forth above, the total is $46,330.15 and we hereby award said total to Claimant.


text:
    (No. 80-CC-1545
    Fidelity & Deposit Company of Maryland, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 18, 1982.

    McNeela & Griffin (Cornelius F. Riordan, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This matter comes before the Court on a stipulation filed by the parties.

The Claimant seeks reimbursement for the value of services rendered to the Capital Development Board (CDB) under a contract for the construction of the Crystal Lake High School (Project). The Claimant’s right to recover is based on its being the surety for a contractor which had been defaulted on the project.

The complaint sought recovery of $14,035.30. However, the CDB offered $10,418.95 as a resolution for the services involved. The Claimant has agreed to accept the offer of the CDB.

Based on the stipulation of the parties and the report of the CDB attached thereto, the Court accepts the parties’ position in this case.

It is hereby ordered that Claimant, Fidelity & Deposit Company of Maryland, be and is hereby awarded the sum of $10,418.95 (ten thousand four hundred eighteen dollars and ninety five cents) in full and final satisfaction of any and all claims involved herein.


author: Roe, C.J.

text:
    (No. 80-CC-1554
    Henson Robinson Company, Claimant, v. The State of Illinois, Respondent.

      Order filed April 8, 1982.

    Gillespie, Cadigan & Gillespie, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause coming on to be heard on the Respondent’s stipulation and the Court being fully advised in the premises finds that this is a claim for damages arising from a delay in construction caused solely by the Respondent. The Respondent has stipulated that the Claimant had nothing to do with the delay and the Claimant was damaged in the amount of $3,536.00 as the result of additional labor costs caused by the delay of approximately one year. The supplemental departmental report shows that funds were available had they been properly utilized.

It is therefore ordered, in accordance with the Respondent’s stipulation, that this Claimant be granted an award in the amount of $3,536.00.


text:
    (No. 80-CC-1581
    Allied Mills, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed August 21, 1981.

    Gagen & Schulte, for Claimant.
    Tyrone C. Fahner, Attorney General (Andrew R. Jarett, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This cause coming to be heard on the joint stipulation (a copy of which is attached to this order) of the parties hereto to the entry of an award herein, and the Court being fully advised in the premises:

It is hereby ordered that the joint stipulation of the parties asking for the entry of an award in the amount of two thousand nine hundred sixty dollars and seventy five cents ($2,960.75) be, and the same is hereby granted, all matters in controversy having been fully settled, adjusted and compromised.

JOINT STIPULATION

Now comes the Respondent, by its attorney, Tyrone C. Fahner, Attorney General of Illinois, and the Claimant, Allied Mills, Inc., by its attorney, Franklin C. Gagen, and jointly stipulated as follows:

1. That this claim arises out of snow removal operations carried out between January 24 and February 7, 1979, by the State of Illinois, and acting through its employees and agents.

2. That Claimant owns an experimental research farm situated near the town of Libertyville, Illinois, lying generally south of Illinois Highway 60 on the north and west of Illinois Highway 21 (Milwaukee Avenue).

3. That at or about the east property line of Claimant’s property, there is a chain link fence lying parallel to Milwaukee Avenue, a distance of approximately one mile.

4. That during aforesaid snow removal operations, the State of Illinois, acting through its employees and agents, damaged the chain link fence.

5. That both parties agree that the incident caused the Claimant to suffer damages in the amount of $2,960.75.

6. That both parties agree to the granting of an award in the amount of $2,960.75 to Claimant and that said award will constitute full and final satisfaction of the claim herein.

7. That Claimant, in receiving the above award, agrees to relinquish and waive any right to additional damages from respondent incurred from the damage to the fence which is the subject of this claim.

8. That Claimant, by its acceptance of the above award, furthermore releases Respondent from any further liability arising on of or account of the aforesaid damage to the fence as alleged in paragraphs one through four.

9. That no other evidence, oral or written, will be presented to the Court in this claim.

10. That both parties waive hearing and the filing of briefs.

Wherefore, Respondent and Claimant hereby agree to the entry of an award in the amount of $2,960.75 (two thousand nine hundred sixty dollars and seventy five cents).


text:
    (No. 80-CC-1691
    Xerox Corporation, Claimant, v. The State of Illinois, Respondent.

      Order filed February 11, 1982.

    Falls and Samis, for Claimant.
    Tyrone C. Fahner, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This matter coming on to be heard upon the petition of Respondent to reopen the record herein, and it appearing to the Court that Claimant has received due notice of this petition, and the Court being fully advised in the premises;

The record in this matter indicates that this claim was filed on March 27, 1980. The Attorney General requested a departmental report from the Department of Children and Family Services approximately two weeks latér. Sixty days having passed, the claim was assigned to a commissioner who set a hearing date nearly five months in advance. The case was then continued until March 3, 1981, at which time the commissioner indicated it was to finally be disposed of. However, it was continued again until June 24, 1981, well over a year after the claim was filed.

Present at the June 24, 1981, hearing were two assistant attorneys general and Claimant’s lawyer and the commissioner. A departmental report was still unavailable. The commissioner filed his recommendation anyway.

Nearly one month after the last scheduled hearing, Respondent filed the petition to reopen the record to introduce the departmental report which was alleged to have been received approximately two weeks after the last hearing. Said petition states at item No. 4 that the departmental report is attached to the petition. However, neither the Court nor the clerk’s office has ever received it. It is now going on two years since this claim was filed.

It is hereby ordered that the petition of Respondent be, and hereby is, denied and Claimant is awarded the sum of $203.61 in full satisfaction of this claim.


text:
    (No. 80-CC-1716
    Xerox Corporation, Claimant, v. The State of Illinois, Respondent.

      Order filed February 19, 1982.

    Falls and Samis, for Claimant.
    Tyrone C. Fahner, Attorney General (Francis Donovan and Kathleen O’Brien, Assistant Attorneys General, of counsel), for Respondent.
   Roe, C.J.

This is a claim in the amount of $2,422.02 against the State of Illinois, Department of Children and Family Services for $2,422.02. It was filed on March 26, 1980, and a request was made of the department for a report on the matter by the Attorney General’s office about three weeks later. Because no written answer was filed within 60 days a general denial was deemed made and the case was assigned to a commissioner to set for hearing.

The commissioner originally set it for hearing on November 8, 1980, but continued it because no departmental report was available. By order of the commissioner it was scheduled for final disposition on March 11, 1980, nearly one year after it had been filed. However, the Department of Children and Family Services still had not supplied the Attorney General’s office with its report so the hearing was continued again. It was finally heard on June 24, 1981, but a departmental report was still unavailable. It is now nearly two years since this claim was filed and no departmental report has yet to be offered.

If the Respondent has any defense to this claim it has not been raised despite ample time and opportunity to do so. It is hereby ordered that Claimant be, and hereby is, awarded the sum of $2,422.02.


text:
    (No. 80-CC-1726
    LaSalle National Bank, as Trustee under Trust No. 46121, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 4, 1981.

    Hoffman and Davis, for Claimant.
    Tyrone C. Fahner, Attorney General (Andrew R. Jarett, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

The record in this cause indicates the purpose of the expenditure by the Department of Public Aid for which this claim was filed was for additional money due the Claimant under the terms of a contract entered into by the Respondent. Specifically, Claimant is being reimbursed under the provisions of the “stop tax” clause provision of the lease.

The Attorney General has entered into a joint stipulation with the Claimant for the entry of an award in the amount of $10,900.00 in full and final satisfaction of the claim. The Court, after examining the claim, finds that this was a properly authorized expenditure, and agrees with Claimant and Respondent. Accordingly,

It is hereby ordered that the Claimant, LaSalle National Bank, as Trustee under trust No. 46121, be and is hereby awarded, in full satisfaction of any and all claims presented to the State of Illinois, the sum of ten thousand nine hundred dollars and no cents ($10,900.00).


text:
    (No. 80-CC-1773
    William Mackowiak, Administrator of the Estate of Mark W. Mackowiak, Deceased, Claimant, v. The State of Illinois, Department of Transportation and Highways, Respondent.

      Opinion filed May 10, 1982.

    Edward R. Vrdolyak, Ltd., for Claimant.
    Tyrone C. Fahner, Attorney General (Saul R. Wexler, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

On March 29, 1979, at approximately 12:55 p.m., Mark Mackowiak was operating a 1977 Toyota Corolla westbound on 1-55 and approaching a point approximately one mile east of the County Line Road where 1-294 crosses over 1-55. At that time and place, the State of Illinois Department of Transportation vehicles were on 1-55 under the 1-294 overpass trying to relieve a blocked sewer that had flooded the innermost westbound lane, part of the second lane, and the median shoulder. The easternmost State truck was parked half on and half off the median shoulder on the westbound lane. Behind that truck, a flagman was stationed 90 to 100 feet east, standing on the shoulder facing east. The flagman was carrying a sign which was on a paddle that was two feet in diameter with a reflectorized legend. He testified that the sign and the four flashing lights and the mars light located on the rearmost truck of Respondent were all operating prior to and at the time the Claimant’s decedent collided with the truck.

The evidence shows it had been a rainy day, and there is conflicting testimony as to whether it was raining at the time the accident occurred, but the pavement was unquestionably wet. The evidence is clear that the area was visible for at least one-half mile away.

According to the only eyewitness, the decedent lost control of his vehicle prior to the impact, resulting in his death.

Thus, we have a situation where an accident happened in midday, the scene of the accident was clearly visible for at least one-half mile, a flagman with a reflectorized legend was stationed approximately 100 feet behind a State truck, and the truck’s warning lights and flasher lights were all in operation prior to and at the time decedent’s car collided into the State truck and the concrete wall along the median strip.

There is evidence in the record showing the decedent had received numerous speeding tickets prior to the accident, that he had participated in various types of auto races, and that results of blood tests made by the medical examiner’s office showed he had been driving at the time of the accident under the influence of alcoholic beverages.

Claimant states that the State was negligent in not having warning signs farther out than one-half mile from the scene of the accident and that it was negligent in parking the truck partway on the pavement.

This Court has repeatedly held that the State is not an insurer against all accidents occurring on its highways, but only has a duty to keep its highways reasonably safe for ordinary travel by persons using due care and caution for their own safety. 25 Ill. Ct. Cl. 209.

Claimant bears the burden of proving by a preponderance of the evidence that the State is negligent; that the State’s negligence was the proximate cause of Claimant’s injury; and that Claimant is free of contributory negligence. (Nestman v. State (1975), 31 Ill. Ct. Cl. 62.) In the same case, this Court held that “to approach a place of known danger without care commensurate with such danger is contributory negligence.” 31 Ill. Ct. Cl. 62, 73.

Claimant argues that the evidence that was admitted relative to the speeding tickets of the decedent and the evidence submitted relative to decedent using alcoholic beverages prior to the time of the accident was inadmissible.

Eliminating the evidence relative to the possible intoxication of decedent and also that of the speeding tickets, we have a picture of an individual driving on a wet pavement approaching a flagman waving a reflectorized sign, and a State truck with warning lights and flasher lights on the rear of said truck, all of which were visible, according to an eyewitness, for a distance of approximately one-half mile. Despite this fact, decedent lost control of his automobile, collided with the State truck and the concrete wall along the median strip, and was killed.

It is of the opinion of this Court that Claimant has failed to prove any negligence on the part of the State and that the proximate cause of this accident was the result of decedent’s own actions in failing to have his automobile under control on a wet pavement thereby losing control of said automobile. To hold otherwise would make the State of Illinois an insurer against all accidents occuring on its highways despite the negligence of drivers of vehicles travelling upon said highways.

Award denied.


text:
    (No. 80-CC-1775
    Goodwill Industries of Chicago, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 1, 1982.

    Karaganis & Gold, for Claimant.

      Tyrone C. Fahner, Attorney General (John R. Fanone and Carl J. Klein, Assistant Attorneys General, of counsel), for Respondent.
   Roe, C.J.

This is an action for breach of contract. Jurisdiction is found under section 8(b) of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.8(b)). Claimant alleged that it provided services to Respondent for which Respondent refused to pay and seeks damages in the amount of $10,100.50 plus costs of this suit.

Respondent moved to dismiss this claim on the grounds that the applicable statute of limitations had expired. It was Respondent’s position that the reason for the nonpayment was that Claimant had not billed the State prior to the lapsing of the appropriation and thus the State was unable to make the payment. Respondent sought to characterize the complaint as not one for breach of contract but one for lapsed appropriation. Respondent then argued that, as such, it would come within section 22(g) of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.22(g)), which provides for a two-year statute of limitations. Because the complaint alleged that the billings were for the period September 24, 1973, to December 20, 1976, and the complaint was not filed until March 31, 1980, Respondent argued that the claim should be barred. Claimant objected to this line of reasoning by disagreeing with Respondent’s position that its claim was not based on breach of contract and argued that the five-year statute of limitations provided for in section 22(a) (Ill. Rev. Stat. 1979, ch. 37, par. 439.22(a)), applied. Respondent filed a response to Claimant’s objection which stated that it has now adopted a policy of treating such cases as contracts with a five-year statute of limitations.

The initial distinction between a contract claim and a claim based upon lapsed appropriation made by Respondent in its motion to dismiss was one often made by this Court in the past. A lapsed appropriation claim is a cause of action peculiar to this Court because of the State’s accounting system. The various State agencies are constrained to make payments for goods arid services rendered during a fiscal year from funds appropriated for that fiscal year. At the end of the fiscal year funds which were unexpended lapsed and the department operates on funds appropriated for the next fiscal year. Therefore the agencies cannot pay late billings, and providers file in this Court for their payment. A lapsed appropriation claim is one where payment was not made solely for the reason that the funds appropriated therefor have lapsed. The distinction made between this type of claim and one for breach of contract was that the latter encompassed all such claims where payment was denied for any other reason.

After careful consideration of the issue, we hold that a five-year statute of limitations applies in both instances. In doing so we recognize that we are overturning a line of previous decisions to the contrary. However, upon close scrutiny the distinction has no legal basis. The reasons for keeping the two separate relate mainly to court administration and elements of proof and not legal theory. The important factor in each situation is that the State did not fulfill its obligation under the contract. Payment was not made and, where it is owing, this constitutes a breach. The distinction is one of description only. A lapsed appropriation claim is one type of a breach of contract.

Respondent’s motion to dismiss is hereby denied. In its response to Claimant’s objections to said motion Respondent states that in event the motion is denied it would be willing to stipulate to an award. So we turn now to the issue of damages. Claimant in its complaint seeks $10,100.50. Respondent would agree to an award of $9,336.50, the difference alleged due to two duplicate billings of $382.00 each. This stipulation was based upon the departmental report which states that sufficient funds lapsed from which this claim could have been paid.

Claimant is hereby awarded the sum $9,336.50 (nine thousand three hundred thirty six dollars and fifty cents) in full satisfaction of its claim. Claimant’s prayer for costs is hereby denied.


text:
    (No. 80-CC-1975
    Susan C. Farr, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 24, 1981.

    Susan C. Farr, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This case comes before the Court on the motion of Respondent for summary judgment.

During August of 1977, Claimant and four other employees requested an audit of their positions, all of which were Mental Health Administrator III, pursuant to Rule 1 — 20 of the Rules of the Department of Personnel. After the audit, a decision was made in November of 1978 that their classifications as Mental Health Administrator III should remain the same.

In December of 1978, the other four employees requested a reconsideration of the decision, as provided for by Rule 1 — 30. Rule 1 — 30 provides as follows:

“RECONSIDERATION: Within 30 days after receiving notice of such decision the incumbent in such position may make a request in writing of the Director for a reconsideration of the decision. Thereafter, the Director shall reinvestigate the duties and responsibilities of such position and related positions, if necessary, and the affected employee shall be given a reasonable opportunity to be heard.
After such investigation, the Director shall render a decision in writing and it shall be served on the employee in person or by certified mail, return receipt requested at the last address shown in the personnel file. The effective date of the Directors reconsidered decision shall be the date such request for reconsideration toas received by the Director.
An employee wishing to appeal the Director’s reconsidered decision shall serve upon the Civil Service Commission notice of appeal of said reconsidered decision in writing within 15 days after receipt of notice of the reconsidered decision. A copy of the notice of appeal shall also be served upon the Director.” (Emphasis added.)

Unlike the other four employees, Claimant did not submit a written request for reconsideration.

In September of 1979, reconsidered decisions for the other four employees were issued, under which they were reclassified to Mental Health Administrator IV. Although Claimant did not request a reconsideration and did not receive a reconsidered decision, her position was nevertheless reallocated to Mental Health Administrator IV on November 7, 1979, and has been paid accordingly since that date. The other four employees, however, received retroactive increases going back to December of 1978, the date of their requests for reconsideration.

The question now before the Court is whether Claimant should also be paid retroactively to the date the others made their requests, notwithstanding the fact that Claimant made no such request. It is the opinion of the Court that Claimant is not entitled to retroactive benefits from her reallocation. Rule 1 — 30 states quite clearly that the effective date of the reconsidered decision shall be the date on which the request for reconsideration was received by the Director. Since no request was made, the effective date of the reallocation cannot occur prior to the date of the reallocation itself, which was November 7, 1979. The fact that the other four employees followed the provisions of Rule 1 — 30 does not entitle Claimant to a retroactive increase. Claimant’s rights and benefits must be determined by her own conduct rather than that of others in similar situations.

The provisions óf Rule 1 — 30 have been upheld and followed by this Court in prior cases, where we held that the Rules of the Department of Personnel have the force and effect of law. (Deutsch v. State (1980), 33 Ill. Ct. Cl. 157, Lewis v. State (1980), 33 Ill. Ct. Cl. 150, Smith v. State, 34 Ill. Ct. Cl. 384, and Swartz v. State (1980), 33 Ill. Ct. Cl. 139.) The instant claim presents no grounds for the Court to abandon this position, and offers no facts indicating Claimant’s entitlement to any salary increase retroactive from the date of her reallocation.

This Court hereby grants Respondent’s motion for summary judgment, and the claim is hereby denied.


text:
    (No. 80-CC-2086
    Dravo Mechling Corporation, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 17, 1981.

    Bradley, McMurray, Black & Snyder, for Claimant.
    Tyrone C. Fahner, Attorney General (John R. Fanone, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim comes before the Court on a joint stipulation by the parties. The joint stipulation states as follows:

1. That the instant claim sounding in tort arose from a collision of a barge owned by Claimant with the Cass Street Bridge over the Sanitary and Ship Canal near Joliet, Illinois.

2. That on June 6, 1978, the barge, M/V Craig. M was approaching said bridge and the pilot made the necessary signals to alert the bridge operator of the approach.

3. That the bridge operator acknowledged the approach with his signal and then began the process of opening the bridge.

4. That the first step in the bridge opening process was the lowering of a traffic gate.

5. That the bridge tender attempted to lower that gate but the mechanism failed to operate.

6. The bridge tender then signaled the barge to stop but because of the size and handling characteristics of such barges the pilot could not stop in time.

7. Both the bridge tender and the repair technician testified at depositions in this case.

8. Both testified that the mechanism failed due to a power surge and that the same situation had occurred in the past.

9. That in addition the policy for the bridge operation is to begin opening the bridge when the barge reaches a distance of 300 feet from the bridge.

10. That it is impossible for a barge to stop within 300 feet once the go ahead signal has been changed to stop because of a malfunction.

11. That Respondent agrees that the bridge malfunctioned, that it had done so in the past and that the policy of operation did not allow for a safe stopping distance.

12. That the M/V Craig M was damaged in the collision and in addition was unable to operate and generate income during its repair.

13. That based upon the complaint, bill of particulars and discovery completed by both parties, the parties agree that an award of $4,500.00 is a fair and reasonable compensation.

14. That said sum further reflects both the actual or liquidated damages and the loss of income suffered by Claimant.

15. That the Claimant agrees to accept the award of $4,500.00 as full and final satisfaction of all claims arising out of the June 6, 1978, collision waives and relinquishes any and all future claims arising out of said accident and releases the State from further liability for said accident.

16. That both parties waive the hearing in the cause and the submission of briefs.

17. That no other evidence will be presented to the Court.

18. That the facts of this cause are substantially similar to the case of Sioux City and New Orleans Barge Lines, Inc. v. State (1978), 32 Ill. Ct. Cl. 603, wherein the Court made an award for actual damage and loss of use.

19. That like the instant cause, the bridge tender in Sioux City signaled the go ahead, the bridge malfunctioned and the barge was unable to stop in time.

Although the Court is not obligated to accept a stipulation such as this and grant an agreed award, it does not lack authority to do so if the terms of the stipulation appear to be fair and reasonable. It also has no desire to interpose a controversy between parties where none exists.

The recitation of. agreed-upon facts in the above stipulation is reasonably thorough and affords a basis for granting an award based upon the negligence of the Respondent. The Court sees no grounds for questioning the accuracy of the above facts or the reasonableness of the agreed damages. Since both parties have had ample time to investigate the incident, conduct discovery, and analyze their respective positions we assume that the stipulation was entered into intelligently and with full knowledge of the facts and applicable law. We therefore accept the stipulation and approve the agreed award.

Claimant, Dravo Mechling Corp., is hereby awarded the sum of $4,500.00 (four thousand five hundred dollars and no cents) in full and final satisfaction of the instant claim.


text:
    (No. 80-CC-2265
    Bernard Chlapecka, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 15, 1981.

    Bernard Chlapecka, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim coming on to be heard on the joint stipulation of the parties hereto, and the Court being fully advised in the premises:

The Court finds that this claim is for property damage. An investigation of this claim by the Department of Corrections determined that a total amount of $78.76 (seventy eight dollars and seventy six cents) is due and owing to Claimant pursuant to Claimant’s complaint. (A copy of said report being attached to the joint stipulation of the parties.)

It is hereby ordered that the sum of $78.76 (seventy eight dollars and seventy six cents) be and is hereby awarded to claimant, Bernard Chlapecka, in full satisfaction of any and all claims hereby presented to the State of Illinois.


text:
    (No. 80-CC-2274
    Shirley Coppotelli and Jean Deering et al., Claimants, v. The State of Illinois, Respondent.

      Opinion filed November 30, 1981.

      Amended opinion filed December 30, 1981.

    Michael J. Hoare and Stuart R. Berkowitz, for Claimants.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This case involves the matter of attorney fees for Claimants’ attorneys who represented approximately 280 employees of the Illinois Secretary of State’s office in a class action suit against the Secretary of State.

The suit in question was filed in the United States District Court for the Eastern District (now Southern District) of Illinois against Michael J. Hewlett, Illinois Secretary of State, and certain supervisory personnel in the office of thé Secretary of State.

Claimants were female driver examiner aides who unsuccessfully applied for or who were available and qualified for the higher position of driver examiner in the Secretary of State’s driver’s license division. The suit alleged that the Claimants had been discriminated against because of their sex in that females were in practice and policy eligible only for positions as aides, while males were provided jobs as. driver examiners.

After approximately five years of pretrial proceedings, just prior to trial, the Secretary of State’s office, through its counsel, entered into a stipulation of settlement.

Class members were individually identified, and each individual’s monetary share of the settlement was separately computed based upon a payment of $108.80 per month, multiplied by the number of months of that individual’s actual employment within the Secretary of State’s office after August 19, 1973. Each of the two Claimants was allowed an additional sum of $2,000.00 as plaintiff representatives of the class. Attorney fees were allowed for plaintiffs’ counsel in the sum of $109,000.00, plus taxable costs. On May 23, 1980, the United States District Court entered a consent decree of judgment on the stipulation.

Claimants filed their complaint in the Court of Claims to enforce the judgment of the United States District Court. Respondent filed a stipulation that it believes the awards to be reasonable and proper as to the individual payments and the additional $2,000.00 to the two representative plaintiffs named. Respondent stated, however, that it could not form an opinion on the reasonableness of the award of $109,000.00 in attorney fees.

A commissioner for the Court of Claims held hearings in regard to the attorney fees and filed his recommendation.

The attorney fees allowed were allocated $70,940.00 to Michael J. Hoare and $38,060.00 to Stuart R. Berkowitz, counsel for the plaintiffs in the Federal court action.

The record cites in detail the work the attorneys did in securing the settlement and, in particular, points out that Claimants had attempted to secure other counsel to represent them in this matter but were unsuccessful in securing anyone willing to take the case. The total amount recovered was $371,008.20.

The record also discloses that counsel were able to keep the Claimants from being discharged from their employment positions with the Secretary of State because of threatened reorganization and ultimately were able to secure a settlement for the full amount of pay differential requested.

In view of the fact that the United States District Court has already approved this settlement fixing the amount of attorney fees and the record made before the commissioner of the Court of Claims shows the time involved by Claimants’ attorneys and since no real opposition was made for their claim for fees, the Court approves the stipulation previously approved by the United States District Court in which attorney fees were fixed at $109,000.00, said amount to be divided between the two attorneys as heretofore set forth.

AMENDED OPINION

Holderman, J,

The Court, upon further consideration of the opinion heretofore entered in this case, believes an amended opinion is necessary to clarify the intent of the Court in its original opinion.

The Court hereby enters an award in favor of Claimants as shown by the consent decree of judgment on the stipulation, a copy of which is attached hereto and incorporated herein.

The original opinion did not specifically state that the attorney fees in the amount of $109,000.00 and the $4,000.00 payable to the two representative Claimants, Shirley Coppotelli and Jean Deering, was to be in addition to the award of $369,920.00 awarded to Claimants.

Court costs, in an amount not to exceed $100.00, will also be paid by Respondent, making a total award of $483,020.00 in favor of Claimants.


text:
    (No. 81-CC-0028
    Mary Brown and State Farm Insurance Company, Claimants, v. The State of Illinois, Respondent.

      Opinion filed June 9, 1982.

    Garretson & Santora, for Claimant.
    Tyrone C. Fahner, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This matter comes before the Court upon joint stipulation of Claimant and Respondent to the entry of an award for Claimants’ damaged property in the amount of $2,000.00 and Respondent having conceded liability for such damage to that extent. The Court being otherwise duly advised in the premises, therefore,

It is hereby ordered that an award be entered in favor of Claimants, Mary Brown and State Farm Insurance Co., in the amount of $2,000.00 (two thousand dollars and no cents) in full and final satisfaction of this property loss claim.


text:
    (No. 81-CC-0031
    David Chang Lee, M.D., Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 4, 1982.

    James F. Hynan, for Claimant.
    Tyrone C. Fahner, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

The record in this cause indicates that the purpose of the expenditure for which this claim was filed was based upon the contractual relationship between David Chang Lee, M.D., F.A.C.S., a provider in the Medical Assistance Program with the Illinois Department of Public Aid. The Attorney General has submitted a joint stipulation duly agreed to and signed by both parties based upon the information forwarded to his office by said Department, as evidenced by the departmental report and subsequent correspondence from the Department attached hereto.

Accordingly, this Court finds that Dr. David Chang Lee, M.D., F.A.C.S,, did in fact perform the alleged surgical process on public aid recipients, Alphonse Genis and Cynthia Anderson. The Court finds that Dr. David Chang Lee submitted bills for $4,980.00 to the Department of Public Aid for the services performed upon public aid recipients, Alphonse Genis and Cynthia Anderson. The Court finds that based upon section 5 — 7 of the Public Aid Code (Ill. Rev. Stat. 1977, ch. 23, par. 5 — 7) and the budgetary restraints upon the Department to reimburse Claimant, Dr. Lee, for surgical services performed, that Claimant received $1,856.00 which was the maximum allowable payment under these conditions. The Court further finds that Claimant did submit additional documentation for additional services which were not previously submitted to the Department of Public Aid, and based upon the budgetary restraints as is authorized pursuant to section 5 — 7 of the Public Aid Code (Ill. Rev. Stat. 1977, ch. 23, par. 5 — 7) the Claimant is entitled to an additional award of $506.50.

It is hereby ordered that the Claimant, David Chang Lee, M.D., F.A.C.S., be and is awarded $506.50 in full satisfaction of any and all claims presented to the State of Illinois for public aid recipients, Alphonse Genis and Cynthia Anderson, and should be paid out of the current public aid appropriation.


text:
    (No. 81-CC-0058
    State Employees’ Retirement System of Illinois, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 18, 1982.

    State Employees’ Retirement System of Illinois, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

Claimant seeks payment of the sum of $3.003.20 which sum represents employer retirement contributions from the State allegedly due Claimant by reason of legislative action granting back salary to certain retired State employees. Claimant alleged that it made demand for the payment from the Office of the Comptroller but such demand was refused on the grounds that the funds appropriated for such payment have lapsed. However, the letter to Claimant from the director of budget and administrative services of the comptroller’s office which Claimant attached to its complaint as a bill of particulars states that payment was not made because there was no appropriation for such payment.

On August 20, 1979, P.A. 81-209 became law, making an appropriation for payments mandated by P.A. 81 — 1132 which reads in pertinent part as follows:

“The State Comptroller shall give reimbursement to employees who retired during fiscal year 1978 but prior to June 30,1978, and who thus were not eligible for the lump payment, a payment equal to what they would have received had they been under a collective bargaining contract in fiscal year 1978, as is determined by the Department of Personnel.”

The payroll was processed and State warrants were issued on June 30, 1980. No concurrent payments were made to social security or retirement because the appropriation by P.A. 81 — 209 provided only for personal service payments and no employer contributions.

Subsequently, other legislation was passed to provide for payment to social security. Apparently it was felt at that time that retirement contributions were not necessary. Now it appears that Claimant and the Office of the Comptroller feel that although employee contributions to retirement are not necessary, employer contributions are. Unfortunately no legislation was passed appropriating any money for such payments. Respondent moved for dismissal on those grounds and the case is before us now on that motion.

The Constitution of the State of Illinois states that:

“The General Assembly by law shall make appropriations for all expenditures of public funds by the State. Appropriations for the fiscal year shall not exceed funds estimated by the General Assembly to be available during that year.” (Ill. Const. 1970, art. VIII, sec. 2B.)

Furthermore, section 30 of the State Finance Act states that:

“No officer, institution, department, board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law.” (Ill. Rev. Stat. 1979, ch. 127, par. 166.)

As no officer, institution, department, board or commission of the State may contract indebtedness in excess of the amount of money appropriated to it by the legislature, any such obligations would be void. Because no appropriation was made for payment of what Claimant is seeking, the claim must be denied.

For us to grant an award to the Claimant in this matter would in effect be the making of an appropriation in violation of our State Constitution. The legislature passed the act giving rise to this and it passed the act providing for funding. They did not choose to fund the retirement system which was their prerogative. We cannot do so on these facts.

Claim denied.


text:
    (No. 81-CC-0072
    John H. Spiegler, M.D., Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 16, 1982.

    John H. Spiegler, M.D., pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

The record in this cause indicates that the purpose of the expenditure by the Department of Children and Family Services for which this claim was filed was medical services provided by the Claimant in fiscal years 1979 and 1980 for a child in the custody of the Department of Children and Family Services.

The Department of Children and Family Services has submitted a report on this claim which states that the claim would have been paid out of appropriation and fund No. 001-41817-4400-08-00 (children’s personal and physical maintenance) had the claim been timely presented. There were sufficient funds remaining in the appropriation in fiscal year 1979. There were not sufficient funds remaining in fiscal year 1980 to pay that portion of the claim. However, funds were available to the Department for the payment of this claim in appropriation and fund No. 001-41817-4400-03-00 (counseling services) if the Department had requested that a transfer bill be passed by the General Assembly.

Section 30 of An Act in relation to State Finance (Ill. Rev. Stat. 1979, ch. 127, par. 166) prohibits obligating the State to any indebtedness in excess of the money appropriated for a department, unless expressly authorized by law.

Therefore, the only way an award of the fiscal year 1980 portion of this claim may be made is if this expenditure was expressly authorized by law. Previously, expenditures for food and medical care for prisoners have been recognized to be expressly authorized by law (Fergus v. Brady (1917), 277 Ill. 272). Also the Court has considered this problem in connection with the apprehension and return of fugitives. In those cases, the Court has made awards on the basis that payment was expressly authorized by law.

The child for whom Claimant performed the services for which payment is sought was placed in the custody of the Department of Children and Family Services by an order of the circuit court of Cook County pursuant to the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 1 et seq.). Section 1 — 12 of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 12) imposes upon the legal custodian of a child the duty to provide him with food, shelter, education and ordinary medical care.

The Court has considered the limitations placed on the Department of Children and Family Services by the General Assembly. It is the function of the General Assembly to control the expenditures of public funds by the various agencies of State government. However, this is a situation very close to that of Fergus v. Brady. Here, as in Fergus v. Brady, the State agency had custody by court order and was authorized by law to provide basic necessities for the person in custody, in this instance a child.

The invoices for these services were submitted after the close of the fiscal year, but the Department of Children and Family Services was required to pay the invoices out of funds for that prior fiscal year. This situation leads to unique and difficult forecasting problems for the Department of Children and Family Services. The provider of these services should not be penalized because the Department is unable to accurately forecast specific appropriation fund requirements for each fiscal year. Had the Department been able to properly forecast, sufficient funds would have been available for the payment of all of this claim.

Because the expenditure here in question was required by law, it is hereby ordered that the Claimant, John H. Spiegler, M.D., be and is hereby awarded the sum of $402.00 (four hundred two dollars and no cents).


text:
    (No. 81-CC-0183
    Fort Dearborn Hotel, Claimant, v. The State of Illinois, Respondent.

      Order filed June 9, 1982.

    Anthony J. Pauletto, for Claimant.
    Tyrone C. Fahner, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This matter comes before the Court upon joint stipulation of Claimant and Respondent to the entry of an award for Claimant’s damaged property in the amount of $3,250.00 and Respondent having conceded liability for such damage to that extent. The Court being otherwise duly advised in the premises, therefore,

It is hereby ordered that an award be entered in favor of Claimant, Fort Dearborn Hotel, in the amount of $3,250.00 (three thousand, two hundred fifty and no/100 dollars) in full and final satisfaction of its property loss claim.


text:
    (No. 81-CC-0189
    Daniel Katrein and William McKnight, Claimants, v. The State of Illinois, Respondent.

      Opinion filed April 16, 1982.

      Rehearing denied June 14, 1982.

    John F. Vickers, for Claimants.
    Tyrone C. Fahner, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This cause coming to be heard upon the motion of the Respondent to dismiss, due notice being given and the Claimants having filed their reply thereto and the Court being fully advised;

Finds that the Claimants’ notice of intent filed herein indicates their injuries were caused when their motorcycle hit a hole in the road on “Canal Road, in between Ottawa and Marseilles, in the County of La Salle, State of Illinois.” There is nothing in the notices to indicate with any particularity where the accident occurred or where the hole in the road is located. The Claimants’ complaint is no more specific.

Taking judicial notice that the distance between Marseilles and Ottawa is approximately eight miles, there is no indication given to Respondent where the accident occurred.

Section 22 — 1 of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.22 — 1) requires a description of the location of the accident. Failure to provide notice of intent as called for in section 22 — 1 is basis for dismissal of the action. Ill. Rev. Stat. 1979, ch. 37, par. 439.22 — 2.

It is well settled that the purpose of the notice statute is to allow prompt investigation of claims and an opportunity to defend them. (Telford v. State (1963), 24 Ill. Ct. Cl. 416, 418.) Failure to give an accurate description of the location makes the notice defective and is the basis for dismissal of the claim, Seaton v. State (1966), 25 Ill. Ct. Cl. 291, 295.

In the instant case the description of the location of the accident is vague and lacks any specificity. There is no indication of where on Canal Road the accident took place. Describing it as “in between” two cities does not meet the requirements of section 22 — 1 of the Court of Claims Act. While the trend in notice statute pleading may be becoming more liberal, as Claimants allege, the notice in the instant case does not constitute substantial compliance with section 22 — 1 of the Court of Claims Act. The Claimants’ failure to tender proper notice in compliance with section 22 — 1 requires dismissal of their action.

It is hereby ordered:

That the motion of the respondent to dismiss, be and the same is hereby granted and the complaint of the Claimants is dismissed with prejudice.


text:
    (No. 81-CC-0966
    Resurrection Hospital, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 26, 1981.

    John E. Groskopf, for Claimant.
    Tyrone C. Fahner, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

The record in this cause indicates that the purpose of the expenditure by the Department of Children and Family Services for which this claim was filed was for emergency medical services for Daniel Seng, a child who was in the protective custody of the Department of Children and Family Services.

The Department of Children and Family Services has submitted a report on this claim which states that there were no funds remaining in the appropriation out of which this claim should have been paid (appropriation and fund No. 001-41817-4400-08-00), but that funds were available to the Department for the payment of this claim in appropriation and fund No. 001-41817-4400-03-00 if the Department had requested that a transfer bill be passed by the General Assembly.

Section 30 of An Act in relation to State Finance (Ill. Rev. Stat. 1979, ch. 127, par. 166) prohibits obligating the State to any indebtedness in excess of the money appropriated for a department, unless expressly authorized by law. Therefore, the only way an award on this claim may be made is if this expenditure was expressly authorized by law. Previously, expenditures for food and medical care for prisoners have been recognized to be expressly authorized by law. (Fergus v. Brady (1917), 277 Ill. 272). Also the Court has considered this problem in connection with the apprehension and return of fugitives. In those cases, the Court has made awards on the basis that payment was expressly authorized by law.

The child for whom these services were provided had been taken into protective custody by the Department of Children and Family Services pursuant to section 5 of the Abused and Neglected Child Reporting Act (Ill. Rev. Stat. 1979, ch. 23, par. 2055).

Section 5 of An Act creating the Department of Children and Family Services (Ill. Rev. Stat. 1979, ch. 23, par. 5005) provides that the Department shall have the authority, responsibilities and duties of a legal custodian under section 1 — 12 of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 12) whenever a child is taken into protective custody pursuant to the Abused and Neglected Child Reporting Act and before the child is brought before a judge. Section 1 — 12 of the Juvenile Court Act imposes upon the legal custodian of a child the duty to provide him with food, shelter, education and ordinary medical care.

The Court has considered the limitations placed on the Department of Children and Family Services by the General Assembly. It is the function of the General Assembly to control the government. However, this is a situation very close to that of Fergus v. Brady. Here, as in Fergus v. Brady, the State agency had custody because of the requirements of a statute and was authorized by law to provide basic necessities for the person in custody, in this instance a child.

The invoice for these services was submitted after the close of the fiscal year, but the Department of Children and Family Services was required to pay that invoice out of funds for that prior fiscal year. This situation leads to unique and difficult forecasting problems for the Department of Children and Family Services. The provider of. these services should not be penalized because the Department is unable to accurately forecast specific appropriation fund requirements for each fiscal year. Had the Department been able to properly forecast, sufficient funds would have been available for the payment of this claim.

Because the expenditure here in question was required by law, it is hereby ordered that the Claimant, be and is hereby awarded the sum of $74.30 (seventy four and 30/100 dollars).


text:
    (No. 81-CC-1016
    Illinois Bell Telephone Company, Claimant, v. The State of Illinois, Respondent.

      Order filed August 24, 1981.

    Pritchett and Scully, for Claimant.
    Tyrone C. Fahner, Attorney General (Andrew R. Jarett, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This case comes before the Court on a motion to dismiss filed by the Attorney General, for failure of the Claimant to file suit within the statute of limitations as provided in section 22(g) of the Court of Claims Act, Ill. Rev. Stat. 1979, ch. 37, par. 439.22(g).

The Claimant, Illinois Bell Telephone Company, filed on November 21, 1980, a two-count complaint, in tort, under section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.8(d)), seeking an award of $16,207.

In Count I Claimant sought recovery for damage allegedly done to an underground duct and telephone cable by an act of Respondent, Department of Transportation, approximately 500 feet west of Butterfield Road, Libertyville, Illinois. Claimant asserted that this act occurred on or about July 6, 1978.

In Count II Claimant sought recovery for damage allegedly done to an underground telephone cable, by an act of Respondent, Department of Transportation, approximately one-quarter 0í) mile south of Gages Lane on Route 41, Lake Forest, Illinois. Claimant asserted that this act occurred on or about August 30, 1978.

The Limitations Act of the Court of Claims reads as follows:

“All other claims must be filed within 2 years after it first accrues, saving to infants, idiots, lunatics, insane persons and persons under other disability at the time the claim accrues, in which case the claim must be filed within 2 years from the time the disability ceases.” (Ill. Rev. Stat. 1979, ch. 37, par. 439.22(g)).

Computation of the statute of limitations period is governed by section 1.11 of “An Act in relation to the Construction of Statutes” (Ill. Rev. Stat. 1977, ch. 131, par. 1.11):

“The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last. When the last day is a Saturday, Sunday, or holiday, (as defined by statutes in force) it is excluded.”

Claimant, as required by rules of the Court of Claims, has stated that Count I of the complaint was submitted to the attention of the Department of Transportation in October of 1978, and the Department’s insurance carrier, Employers Self Insurance Service, and that Count II was submitted to the same parties on February 6, 1979. In both instances the claim was ultimately denied.

The threshold question is whether presenting the claims to the Department of Transportation will act to toll the running of the statute of limitations. The answer is no. A State officer is without power to waive or arrest the running of the statute of limitations on a claim against the State. Indeed, the Attorney General himself is power-, less under the law to waive or arrest the running of the statute of limitations in favor of Claimant. (McChesney v. State, 4 Ill. Ct. Cl. 7.) Any claimant who decries that he depended on the acts or promises of a State employee to toll the statute has deceived himself. For:

“Every person is presumed to know the nature and extent of the powers of State officers and therefore cannot be deemed to have been deceived or misled by acts done without legal authority. It is a familiar principal of law that all persons who deal with municipalities and subordinate boards and agencies of the State and National Government must, at their peril, inquire into the powers of the officers or agents of such municipalities, boards or agencies to make the contract contemplated. The acts of such officers can only bind in a manner and to the extent of authorized authority.” (Conglis v. State, 14 Ill. Ct. Cl. 73, 77.)

Thus in Conglis, supra, letters to claimants signed by persons who, under the law, could not create a new liability nor enlarge an existing liability, left the claimants without a remedy after “blowing” the statute of limitations.

In the instant case, we hold that the clock started to run from the date the claim accrued, and was not tolled by presenting the claim to the Respondent, Department of Transportation, and its agents, as they had no authority to waive or stop the running of the statute of limitations.

It will be recalled that Claimant asserts the cause of action for Count I arose on or about July 6,1978, and for Count II the cause of action arose on or about August 30, 1978. Applying the aforesaid rules, the last possible day on which Claimant could have filed for Count I was July 7, 1980, and for Count II that date was September 1, 1980. It is undisputed that Claimant filed his complaint on November 21, 1980. It is of historical interest that in the first published case of the Court of Claims, Fairbanks v. State, 1 Ill. Ct. Cl. 1, the Court barred a claimant for failure to file within the statute of limitations, and that the same barred the claim. The present Court has no hesitation to enter the same ruling in the instant case.

While this result may seem harsh, in that it leaves Claimant without a remedy, there is no choice. The statute of limitations is jurisdictional on the Court, and failure to comply leaves the Court powerless to enter any award. Conglis v. State, 14 Ill. Ct. Cl. 73, Weber v. State, 19Ill. Ct. Cl. 33, Moore v. State, 11 Ill. Ct. Cl. 491.

So fundamental is the statute of limitations to the jurisdiction of this Court, that the statute of limitations need not be specifically pleaded, yet the Court may, on its own motion, dismiss the claim based on it. McChesney v. State, 4 Ill. Ct. Cl. 5, 7.

Finally, this Court would be remiss if it did not note the sound public policy reason for the statute, which is that to all things there must be an end, and there is no hardship in requiring claimants to act within a reasonable time. Failure by a claimant to act, whether by lapse of time or omission, forfeits his title to the claim under the law, allowing the government to avail itself thereof in suits against it. Trickle v. State, 1 Ill. Ct. Cl. 103.

For the above-stated reasons, it is the holding of this Court that the claim in the instant case is barred by the running of the statute of limitations, the motion of the Respondent is granted, and the case be and is hereby dismissed.

       The Court notes that Claimant has two apparently unrelated claims, consolidated into one complaint. Future complainants would be well advised not to “piggyback” their claims in such manner.


text:
    (No. 81-CC-1137
    Deborah A. Weber, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 9, 1981.

    Deborah A. Weber, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This is a claim by a State employee for temporary assignment pay allegedly denied her for the sole reason that the appropriation from which it would have been paid lapsed. It is before the Court on a joint stipulation of fact. Although the stipulation recites what the parties believe to be the applicable law, no application of that law was agreed upon.

The stipulation reads in relevant part as follows:

1. State of Illinois Personnel Rule 2 — 150 provides as follows:

“APPOINTMENT AND STATUS: The following types of appointment may be made by the Director:
c. Temporary: For persons in positions to perform temporary or seasonal work. No position shall be filled by temporary appointment for more than 6 months out of any 12-month period.”
“1 — 05 DEFINITIONS-. Wherever used in these Rules, Director shall mean the Director of Personnel; and ‘Department’ shall mean the Department of Personnel.”

2. This temporary assignment was not made by the Director of Personnel. However, the Claimant was found, following a second level grievance hearing, to have been temporarily assigned from Clerk Typist III to Corrections Regional Dietary Consultant. Said finding being made on behalf of Gayle M. Franzen, Director, Department of Corrections, as per letter by A. M. Monahan, Deputy Direótor-Operations, Department of Corrections.

Rased upon the facts as presented and a plain reading of the personnel rule we must deny this claim. There is no evidence that A. M. Monahan had legal authority to make the appointment nor is there anything in the record to indicaté that Director Franzen, the person on whose behalf A. M. Monahan acted, had such authority. The plain reading of the rules is that such authority was vested in the Director of the Department of Personnel and there is no indication of any action on his part.

Claim denied.


text:
    (No. 81-CC-1491
    Edward Holland, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 18, 1982.

    Edward Holland, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Andrew Jarett, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is a claim filed by a former inmate of Stateville Correctional Center for personal injuries.

On November 20, 1980, Claimant, while confined to the correctional center’s farm facility, was given the job of chopping down a tree by his supervisor. While chopping down the tree, the head of the axe came off, striking Claimant in the right leg.

This case came on for hearing on January 13, 1982, at the Court of Claims office in Chicago. At that time, a stipulation was entered into which stated as follows:

“Mr. JARETT: At this time, Commissioner, the State is willing to stipulate to the injury and stipulate to the liability on the part of the State for Mr. Holland’s injury. We further stipulate there was no issue of contributory negligence. And the only issue presently before the Court is one of damages.”

The record discloses that Claimant was in the hospital for two or three hours while eleven stitches were taken to close his wound. The wound was on the upper calf of his right leg, two to three inches long and half an inch to three-quarters of an inch wide. Claimant was off work for about five days but suffered no ill effects from the injury. He did, however, experience pain and suffering and continued to experience discomfort in the leg for about one month.

An award is hereby entered in favor of Claimant in the amount of one thousand ($1,000.00) dollars.


text:
    (No. 81-CC-1502
    Skyview Wholesale Nursery Sales Company, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed August 5, 1981.

    McKenna, Storer, Rowe, White & Farrug, for Claimant.
    Tyrone C. Fahner, Attorney General (Andrew R. Jarett, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This case coming before the Court upon the joint stipulation of the parties, and the Court being fully advised, the Court finds:

1. That this claim arises from an act of Respondent, Department of Transportation, by and through its agents, who were engaged in clearing snow next to a fence owned by the Claimant.

2. That Respondent, by and through its agent, damaged this fence on or about February 26, 1979.

3. That this fence is located parallel to Milwaukee Avenue at 642 South Milwaukee Avenue, Wheeling, Illinois.

4. That as a direct result of the act by Respondent, Claimant incurred damage to the fence.

5. That both parties agree that Claimant suffered damages in the amount of $795.00.

Wherefore, it is hereby ordered that the Claimant be awarded the sum of $795.00 (seven hundred ninety-five dollars and no cents) in full and final satisfaction of this claim.


text:
    (No. 81-CC-1514
    David Tillotson, Administrator of the Estate of Edward Tillotson, Deceased, Claimant, v. The State of Illinois, Respondent.

      Order filed July 17, 1981.

    Levine, Wittenberg, Eisner, Newman & Silverman, for Claimant.
    Tyrone C. Fahner, Attorney General (Sandra L. Andina, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court upon motion of Respondent to dismiss, Claimant’s response to motion to dismiss, and motion for general continuance by Claimant.

Claimant’s motion for general continuance does not set forth any reason for his request for said continuance, and therefore, said request is denied.

Respondent’s motion to dismiss sets forth that the accident upon which this claim is based was the result of decedent being struck by a car while walking on the roadway along 162nd Street within the village of South Holland, Illinois, and that decedent was compelled to walk on the roadway because of the impassability of the adjacent sidewalk due to accumulation of snow and ice. Said motion further sets forth that the Illinois Department of Transportation is under no duty to build or maintain sidewalks or overpasses located within municipalities; that such would be the duty of the municipalities themselves; and that the village of South Holland is a municipality and therefore the State is not responsible for said accident.

It is hereby ordered that Respondent’s motion to dismiss be, and the same is, granted, and this cause is dismissed.


text:
    (No. 81-CC-1600
    Wagner Heating & Ventilating Company, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 1, 1981.

    Douglas C. Hancock, for Claimant.
    Tyrone C. Fahner, Attorney General (John R. Fanone, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

The Claimant, Wagner Heating and Ventilating Company, seeks a recovery in the Court of Claims based upon a contract with the Capital Development Board.

The parties have entered into negotiations and have settled and compromised each of the issues and items of damages claimed by the Claimant. Based upon said negotiation the parties have executed a joint stipulation of facts as follows:

1. That this claim arises out of services performed by Claimant for the Capital Development Board in the Addison Specialized Living Center construction project during thé years of 1978,1979 and 1980.

2. That as a result of various problems which arose between Respondent and its general contractor, the entire project was considerably delayed.

3. That the delay was unreasonable and not attributable to acts or omissions of Respondent.

4. That notwithstanding the delay, Claimant performed its services in áccordance with the contract.

5. That as a direct result of the delay, Claimant incurred greater costs in the performance of its work than it would have if the delay had not occurred.

6. That both parties agree that the delay caused Claimant to suffer damages in the amount of $24,928.00.

7. That both parties agree to the granting of an award in the amount of $24,928.00 to Claimant, and that said award will constitute full and final satisfaction of the claim herein.

8. That Claimant, in receiving the above award, agrees to relinquish and waive any right to additional damages from Respondent incurred in its performance of the contract which is the subject of this claim.

9. That Claimant, by its acceptance of the above award furthermore releases Respondent from any further liability arising out of or on account of the services performed under this contract.

10. That no other evidence, oral or written, will be presented to the Court in this claim.

11. That both parties waive hearing and the filing of briefs.

The Court has reviewed the facts set forth in the joint stipulation and considered the legal issues to be determined. It appears that the stipulation is accurate and that it has been entered into legitimately.

It also appears that thé facts agreed upon are sufficient to sustain Claimant’s cause of action and that the granting of an award would be fair and consistent with the findings.

While the Court is necessarily limited in its findings of fact to those presented to it by the parties, it is not bound by a stipulation between the parties as to the amount to be awarded, just as.it is not bound by such a stipulation in its findings of law.

It is the opinion of the Court, however, that based upon the undisputed facts before it that the Respondent is liable to Claimant.

The Court also is of the opinion that an award of $24,928.00 (twenty four thousand nine hundred twenty eight and 00/100 dollárs) is fair and reasonable based upon the negotiations settlement and compromise of the parties.

It is hereby ordered the Claimant be and the same is hereby awarded the sum of $24,928.00 (twenty four thousand nine hundred twenty eight and 00/100 dollars).