author: Epstein, J.

text:
    (No. 94-CC-0311
    James E. Rudolph, Claimant, v. The State of Illinois; Kane County et al., Respondents.

      Opinion filed October 4, 2000.

    Carl M. Walsh & Lonny Ben Ogus, for Claimant.
    Jim Ryan, Attorney General (Edward C. Seward, III, Assistant Attorney General), for Respondents.
   ORDER ON MOTIONS TO DISMISS

Epstein, J.

This is a wrongful discharge claim arising out of Claimants January 2, 1990, termination from his position as Executive Director of Court Programs of the Sixteenth Judicial Circuit of the Circuit Court of Illinois, and is before us on the Respondents 2 — 615 and 2 — 619 motions to dismiss. (735 ILCS 5/2 — 615, 5/2 — 619.)

Claimant seeks a writ of mandamus to reinstate him to his former position (Count I) and back wages of $161,000 as of 1993 (Count II); both counts are predicated on an alleged employment contract with the Sixteenth Judicial Circuit of the Circuit Court, which Claimant alleges was breached by his unilateral termination by the Chief Judge.

The Motions to Dismiss

The Respondents motions to dismiss assert grounds of: (1) failure to state a cause of action against the State, (2) failure to attach alleged written instruments (personnel manuals) constituting the contracts sued upon, (3) lack of jurisdiction over the individual and local government (county) respondents, (4) lack of jurisdiction to grant mandamus or equitable relief (i.e., reinstatement), (5) the bar of collateral estoppel, based on prior litigation in the constitutional courts, and (6) the bar of laches. The Claimant has filed objections to the motions.

The first five grounds are readily disposed of with mixed results. The laches ground — asserting a per se six-month laches period — is surprisingly a matter of first impression in this Court.

History of this Case — The Prior Litigation

Claimant’s action in the circuit court was filed November 24, 1992. His claim in this Court was filed on August 11, 1993, shortly after the circuit courts dismissal of his action in that court. This claim was placed on general continuance pending the disposition of Claimants appeal of the circuit court dismissal, which the Appellate Court affirmed on laches grounds on October 11,1994.

In the circuit court, Claimant’s reinstatement and back wage claim named as defendants all of the Respondents named here other than the State. The circuit court of Kane County (Agnew, J., sitting by special appointment of the Supreme Court), first dismissed the county defendants and the 16th Circuit judges other than the Chief Judge on the basis that Mr. Rudolph was a State employee. The court relied on County of Kane v. Carlson (1987), 116 Ill. 2d 186 and Orenic v. Illinois State Labor Relations Bd. (1989), 127 Ill. 2d 453, for the proposition that administrative court personnel (probation officers there) are employed by the Chief Judge of the circuit as State employees rather than as county employees. The sole remaining defendant there was the successor Chief Judge then serving, Judge Gene L. Nottolini.

The circuit court finally dismissed the wrongful discharge claims on the basis of sovereign immunity. Judge Agnew dismissed the claims with prejudice, and relying on Gordon v. Department of Transportation (1983), 99 Ill. 2d 44, held (See mem. opinion at 6-25-93):

“« 5 5 the plaintiff complains of a violation of a contract by a judicial officer of this state. The factual [sic] determination of a violation of the contract must first be determined in the Court of Claims before mandamus will he to restore the plaintiff to his previous position.”

The Appellate Court, finding that “this is such an egregious case of untimely filing, * * * opt[ed] to affirm on [the] ground” of laches, holding (in a Rule 23 order that is “not precedential”) that:

"Courts have devised a rule to be used in applying the doctrine of laches to wrongful termination actions against public sector employers when those actions seek reinstatement and back pay. (Long v. Tazewell/Pekin Consolidated Communications Center (1992), 236 Ill. App. 3d 967, 602 N.E.2d 856.) The rule is that a delay of longer than six months from the date of termination to the filing of suit is per se unreasonable and will justify dismissal on the basis of laches. (Long [citation omitted].) A two-pronged test is used in applying this rule. First, the court must determine whether the employer has been prejudiced, i.e., whether the employer will have to pay a salary to both a replacement and to a successful plaintiff for the period of the delay. Second, the court must assess whether the plaintiff has given a reasonable excuse for the delay. Long [citation omitted].
In the case at bar, the defendants have shown that they were prejudiced by showing that the plaintiff’s position was filled in February 1990 and the plaintiff has provided no excuse for delaying almost three years before filing suit.” Rudolph v. Kane County, No. 3-93-0871 (Ill. App. Ct., 3d Dist., October 11, 1994), Rule 23 Order at 2-3, Breslin, J.

In Februaiy, 1999, the Claimant requested active status for this claim; at the very end of 1999, the Respondent filed its motions to dismiss.

The Jurisdictional Issues

First, this claim must be dismissed as to the county respondents: Kane, Kendall and DeKalb Counties. They are local government units and, although characterized for some purposes as “subdivisions” of the State, counties are not part of the State government and are beyond the jurisdiction of this Court under section 8 of the Court of Claims Act. 705 ILCS 505/8.

The Respondents motion next attacks the impleading of the various judges of the 16th Judicial Circuit individually in this case. That motion would be well-taken if the complaint named those judges in their individual capacities or, to the same effect, sought relief against them individually. However, we read this complaint to name those judges solely in their official capacity as judges of the 18th Judicial Circuit, i.e., as State judicial officers, and not as individuals. The complaint does not seek relief against the named judges individually. Accordingly, their status as Respondents in this case is nominal and unnecessary, but raises no jurisdictional concern.

Nevertheless, we will dismiss the claim as to the judicial Respondents, other than the Chief Judge of the Circuit, for three reasons. Their inclusion as Respondents is inconsistent with Rule 790.40(c) of this Court (74 Ill. Adm. Code 790.40(c)) governing the captioning — and hence naming of parties — of cases in this Court, which directs that the State or the pertinent State agency be named as the Respondent, which is effected by naming the judicial circuit or the Chief Judge thereof as Respondent. The individual judges are clearly unnecessary as parties herein; and Claimant has given no cogent reason for their remaining as Respondents.

The third jurisdictional issue concerns our authority to issue writs of mandamus to compel reinstatement to State employment. Although mandamus was one of the common law writs, and is a legal rather than equitable remedy as a matter of law and of history, we believe that the issue of this Court’s authority to grant such relief is governed by Garimella v. Board of Trustees of the University of Illinois (1996), 50 Ill. Ct. Cl. 350.

In Garimella, we held that this Court lacks the authority to grant injunctive (equitable) relief, because the legislature had not conferred such power upon this Court. Writs of mandamus directed at State officials or agencies are functionally equivalent to mandatory injunctions. The General Assembly has not conferred such remedial powers on this Court in any form. (Moreover, in the years since Garimella, supra, the General Assembly has not statutorily overruled our decision or empowered us to issue directives to State agencies or officers.) Count I must be dismissed for want of jurisdiction to grant mandamus.

Failure to Comply with Section 2 — 606 of the Code of Civil Procedure

Respondents motion, pursuant to section 2 — 615 of the Code of Civil Procedure (735 ILCS 5/2 — 615), focuses on the Claimants failure to attach to his pleading the two employee “handbooks” on which Claimant predicates, in part, his wrongful termination claim: a 16th Judicial Circuit Court services personnel policy manual and a Kane County personnel policy handbook. Respondent urges that this omission fatally violates section 2 — 206, and further argues that, insofar as the Kane County document is asserted, that could support only a claim against Kane County and is thus jurisdictionally irrelevant to this claim.

Claimant has attached the 16th Circuit manual to his response to the motion, and we will allow that to satisfy the pleading requirement. We agree that the Kane County handbook is irrelevant, on the allegations before us, and we are dismissing Kane County as a Respondent in any event. These arguments, accordingly, are not a basis for dismissal against the State.

Failure to State Cause of Action

Respondents contention that this complaint fails to state a cause of action is predicated on the Claimants failure to attach the alleged contract (i.e., the personnel policy handbook(s)) and on the theory that a claim based on the Kane County handbook must lie only against that county and not against the State. We have dealt with the attachment issue, and have dismissed Kane County, and find that as a pleading matter, the claim against the State based on the 16th Judicial Circuit Court services personnel policy manual (and on the Kane County manual if it is shown that the 16th Circuit adopted that manual as its own) is sufficient to state a claim.

Collateral Estoppel

Respondent asserts a collateral estoppel against the Claimants claim, based on his having asserted the same claims against the same parties in the circuit court, which were there dismissed “based on sovereign immunity” and, on appeal, as barred by laches. Claimant replies that the parties are not identical and that there was no final order on the merits in that proceeding to which collateral estoppel might attach; both are elements of collateral estoppel. See Talarico v. Dunlap (1977), 172 Ill. 2d 185, 685 N.E.2d 325.

The State is uniquely a party in this Court and was not a party in the prior action, except insofar as the Chief Judge was a party there in his capacity as a State officer. However, the circuit court held it lacked jurisdiction over the Chief Judge as a State officer, due to sovereign immunity. Once that court held it lacked jurisdiction, any other findings carry no collateral estoppel effects, Lehman v. Continental Health Care, Ltd. (1st Dist. 1992), 240 Ill. App. 3d 795, 608 N.E.2d 303.

The Appellate Courts laches findings present a trickier collateral estoppel issue. Although the Appellate Court affirmed on a different ground (laches) than the circuit court, its affirmance left undisturbed the trial courts jurisdictional holding, so that all other ensuing findings would not have collateral estoppel effects, including any findings of the Appellate Court. On the other hand, it seems clear that the Appellate Court had appellate jurisdiction to review the circuit courts dismissal even though that order was based on lack of jurisdiction. On this view, the Appellate Courts election to affirm on laches (“we opt to affirm on this ground”) was a final order on the merits of that defense in a proceeding in which the deciding court had jurisdiction to render the judgment that it rendered.

We need not decide that jurisdictional conundrum, because although the Appellate Court concluded that laches barred the action in the circuit court, it made no factual findings as to the Claimants justification or lack of justification for delaying his filing in the circuit court— except to observe that he “has provided no excuse for delaying,” which is not a finding of ultimate fact — to which collateral estoppel might attach. In addition, the factual laches issue there is not identical to the laches issue in this Court, even assuming arguendo that the same laches rule applies here as there, because in this Court the laches issue turns on the Claimants delay in filing here. That may prove to be a more difficult factual hurdle, given the later filing in this Court, but it is not identical.

Laches

The Respondent insists that laches, historically an equitable doctrine that arises as an affirmative defense to claims for equitable relief, applies to this legal wrongful discharge claim under established Illinois law. Indeed, the Appellate Court in the antecedent case between these parties held (in a “non-precedential” order, relying on its 1992 Long decision, supra) that the Illinois courts have fashioned a particularized formulation of the laches doctrine — a six-month laches rule — for public employment wrongful discharge claims. Respondent urges us to recognize and apply this affirmative defense, which it has duly raised in its section 2 — 619(1) motion.

Claimant urges us not to recognize this equitable defense to a purely legal back wage and mandamus claim, in light of the specific limitations rules imposed on this Court by the legislature. Claimant points out that section 22(a) of our statute prescribes a general five-year limitation period for contract claims (735 ILCS 505/22(a)), unless such claim is “otherwise sooner barred by law” (id., section 22). Noting that this Court has traditionally construed that alternative “sooner barred” phrase to refer to other shorter statutes of limitations, Claimant argues that the judge-made laches doctrine falls outside of section 22 of the Court of Claims Act and hence cannot shorten the time in which a Claimant can seek relief in this Court.

Remarkably, this issue — the application of laches to a legal action — and the narrower issue of the application of the Illinois six-month laches rule to claims of wrongful discharge from public employment — appears to be a matter of first impression in this Court. There are strong arguments on both sides of this issue.

Initially, although we agree that the “sooner barred” clause of our limitation statute (section 22 of the Court of Claims Act) primarily refers to shorter statutes of limitations than those contained in section 22, the language is broad enough to encompass bars arising under case law as well as under statute so long as it is a legal bar. The section 22 language is not dispositive of this issue: it does not preclude the application of laches in this Court (at least if laches is a legal as well as an equitable bar), but neither does it support the application of laches. It is also noteworthy that laches, when traditionally applied to equitable actions, can bar an action despite an applicable statute of limitation that would allow a later filing. We must reject Respondents argument that section 22 precludes the application of laches.

The threshold issue remains whether or not laches is applicable to this wrongful discharge claim against the State as a matter of Illinois law. We turn to an examination of the Illinois case law.

Since at least 1906, the Illinois courts have applied laches in public employment discharge cases, i.e., where public employees seek judicial relief from their termination or discharge; these cases have almost always involved claims for both reinstatement and back pay. (See City of Chicago v. Condell (1906), 224 Ill. 595, 79 N.E. 954.) In our Supreme Courts most recent visit to this issue, in People ex rel. Casey v. Health & Hospitals Governing Commission (1977), 69 Ill. 2d 108, 370 N.E.2d 499, the majority stated the reason for the rule:

“* 5 * prejudice to an employer is inherent any time a public employee delays in seeking reinstatement because another person must be hired to replace the discharged employee. That is, if the employee succeeds in securing accrued back pay, the employer must pay him for services rendered by a third person and for which that third person has already been compensated. Thus, the longer the delay, the greater the burden on the employer. We recognize this risk and agree that the defense of laches should be available to an employer when sued by a discharged public employee.”

In Casey, supra, Justice Underwood traced the history of the Illinois laches rule for public employment discharge cases:

” ® the existing rule, established by numerous cases in this and the appellate court, that discharged public employees seeking review of their discharges must file their complaints * “ * within six months of e “ 6 discharge or explain in the complaints the reasons why it was not filed within that six-month period. E.g., Carroll v. Houston, 341 Ill. 531, 537, 173 N.E. 657; People ex rel. Macauley v. Burdette, 285 Ill. 48, 50-51, 120 N.E. 519; Schultheis v. City of Chicago, 240 Ill. 167, 170, 88 N.E. 563; Clark v. City of Chicago, 233 Ill. 113, 114-115, 84 N.E. 140; People ex rel. Sullivan v. Smith, 133 Ill. App. 2d 218, 220, 272 N.E.2d 755; People ex rel. Crnin v. Cahill, 118 Ill. App. 2d 18, 254 N.E.2d 161; Kadon v. Board of Fire and Police Commissioners, 45 Ill. App. 2d 425, 195 N.E.2d 751; People ex rel. Ballinger v. O’Connor, 13 Ill. App. 2d 317, 142 N.E.2d 144.” Casey, supra, 370 N.E.2d at 503 (Underwood, J., dissenting).

The application of laches to public employee wrongful discharge claims is thus firmly settled in Illinois, as is the six-month laches period that our courts have adopted as the standard for a per se unreasonable delay period, for such claims. The policies giving rise to the six-month laches rule were spelled out in the oft-quoted Kadon decision:

“[I]n civil services cases, where prolonged delay may easily prejudice governmental bodies, impair orderly procedures and work to the disadvantage of third parties, time is an essential factor. The most stringent requirement timewise is in those cases brought by civil service employees to compel reinstatement and payment of back salaries after discharges alleged to be illegal. A rule has been established that if these cases are not brought within six months of the discharge they will be barred on the ground of laches, unless a reasonable explanation can be given for the delay.” Kadon v. Board of Fire and Police Comm’rs., supra (1st Dist. 1964), 45 Ill. App. 2d at 430, 195 N.E.2d at 753.

This almost centuiy-old application of laches by the Illinois courts as a bar to public employee wrongful discharge actions has several extraordinary attributes that are pertinent here.

First, and most critical here, is the evolution of this historically equitable doctrine into a common law rule that bars at least some purely legal actions — of which public employee wrongful discharge claims is the most developed. The Illinois courts have applied the equitable laches doctrine to a number of legal causes of action, although it is far from clear that laches is generally applicable to actions at law in Illinois. (See Begs v. Matthews (5th Dist. 1982), 108 Ill. App. 3d 1112.) Another Appellate Court panel recently reviewed the posture of the Illinois decisions on this point:

"Although laches was originally applied only to equitable actions, ‘it is not black letter law that laches is inapplicable to actions at law.’ (Coleman v. O'Grady (1990), 207 Ill. App. 3d 43, 51, 565 N.E.2d 253, 258.) In fact, in Schultheis, when counsel argued laches could be brought as a defense to equitable claims only, the court asserted, ‘[t]his is a mistake.’ (Schultheis, 240 Ill. at 170, 88 N.E. at 564.) Schultheis noted laches had properly been applied to quo warranto and certiorari proceedings, both of which are at law. (Schultheis, 240 Ill. at 170, 88 N.E. at 564; see also Smith v. Intergovernmental Solid Waste Disposal Association (1992), 239 Ill. App. 3d 123, 605 N.E. 654 (laches can be applied as a defense to declaratory judgment actions); Rice v. Board of Fire & Police Commissioners (1952), 356 Ill. App. 479, 103 N.E.2d 672 (abstract of opinion) (laches may be applied to a certiorari proceeding although it is action at law).) Furthermore, monetary claims for back pay have been brought as part of proceedings which were ultimately dismissed due to laches. (Coleman, 207 Ill. App. 3d at 52, 565 N.E.2d at 258; see Casey, 69 Ill. 2d 108, 370 N.E.2d 499; People ex rel. Sullivan v. Smith (1971), 133 Ill. App. 2d 218, 272 N.E.2d 755; Ballinger, 13 Ill. App. 2d 317, 142 N.E.2d 144.) Accordingly, as in Coleman we believe laches, ‘being applicable to such proceedings notwithstanding the monetary claims made therein, is applicable to plaintiffs action in its entirety. Coleman, 207 Ill. App. 3d at 52, 565 N.E.2d at 258.” Lee v. City of Decatur (4th Dist. 1994), 256 Ill. App. 3d 193, 196, 627 N.E.2d 1256.

As laches has been applied in public sector wrongful discharge actions, our courts have extended the doctrine to both legal claims for reinstatement, usually brought as mandamus actions, as well as to back pay damages claims. Our review of the case law convinces us that the clear weight of authority in Illinois is that laches applies to public employees’ claims for back wages attendant to a wrongful discharge action, whether or not coupled with a reinstatement claim. This case, of course, exemplifies a typical dual-claim wrongful discharge claim, but is now before us as a single claim for monetary compensation, due to the jurisdictional unavailability of reinstatement relief in this Court, and so we must decide, as we do, that laches applies to the money claim standing alone.

We observe that some of the decisions appear to have justified the extension of the equitable laches doctrine to the legal mandamus-ior-remstatement claim in these dual-claim wrongful discharge cases by analogizing that extraordinary legal remedy to the equitable remedy of injunction; and many of the decisions have applied laches to the back-wage claim in the same proceeding by extension — sort of a piggyback doctrine; and still other decisions have extended the laches doctrine to the money claim part of dual-claim wrongful discharge cases without articulating a basis; finally, as noted above, our courts have also extended the equitable laches doctrine to other legal actions as well. Whatever the theoretical underpinning of the application of laches in this public employment discharge line of cases, the weight of the precedents in Illinois applies laches to all public employment wrongful discharge claims however styled.

This Court will follow the weight of authority, although we recognize that our Supreme Court has not passed on the precise point (whether a stand-alone back wage claim based on a wrongful discharge from public employment is subject to laches). We cannot find in the case law, or in the parties’ arguments here, a cogent and persuasive basis on which to distinguish back-wage claims alone from back wage claims coupled with reinstatement claims of discharged public employees. The policy justification for the Illinois laches rule — avoidance of prejudice to the taxpayers — is applicable to back pay claims as well as to reinstatement claims of discharged public employees.

A second notable aspect of Illinois’ application of laches is the development of a specific durational rule of laches in public employment law. Our courts have adopted a six-month laches rule in these public employment discharge cases which at a minimum establishes a per se unreasonable delay period. This evolution of the laches doctrine eliminates the threshold judicial determination of unreasonableness of a filing delay, which in equity is a circumstance-based variable. As to this element at least, this evolution of the six-month rule has converted an equitable principle into a legal rule.

A third significant aspect of the evolved laches rule at law in these cases is that a breach of the six-month rule, i.e., filing a wrongful discharge claim after six months, has the effect of shifting some burden to the Claimant. At a minimum, the Claimant or plaintiff has to plead in his or her complaint the “reasonable justification” for the late filing and has the burden of going forward and of convincing the court that the claim is not barred by laches. See Casey, supra.

In addition, under the Supreme Courts decision in Casey, supra, finding an “inherent” prejudice to public employers, it is at least arguable that this laches element may be presumed when the six-month rule has been exceeded. (See e.g., Lee v. City of Decatur, supra, 256 Ill. App. 3d at 197, citing People ex rel. Sullivan v. Smith (1971), 133 Ill. App. 2d 218, 272 N.E.2d 755.) Many decisions nevertheless appear to rely on evidentiaiy showings that the public employer has in fact replaced or will replace the discharged employee-plaintiff (and would thus be subject to double-salary and benefit obligations in the event of a successful claim), as did the Appellate Court in antecedent case here. Rudolph v. Kane Co., supra slip opinion at 3.

Because to some significant extent, Illinois law shifts some of the burden on the laches issue to the plaintiff in post-six-month filings, this application of laches takes on some of the attributes of an element of the wrongful discharge cause of action — for claims filed six months or later — instead of a pure affirmative defense as laches has been applied in equity.

These reasons also support the conclusion that the six-month laches rule applies to public employment wrongful discharge compensation claims in Illinois.

We thus find that the six-month laches rule applies to this claim, and was breached. Because the Claimant has not pleaded any justification for his delay in filing in this Court, nor for his delay in filing in any court, this claim must be dismissed. This is straightforward and obvious.

The more difficult question is whether or not this claim should be dismissed with prejudice, or whether this Court should allow the Claimant to replead. Ordinarily this Court is liberal in allowing repleading when the defect is a matter of pleading. In this case, however, not only has the Claimant not requested any leave to amend, but he has failed in his brief to suggest any reasonable justification for his delay in filing. In light of the Appellate Courts ruling in the antecedent case, and that courts pointed reliance on the Illinois law of laches, and the Claimants ensuing silence on this key issue which one court has already found to be dispositive, we find no reason now to extend this litigation or to indulge this Claimant further.

Conclusion

For the foregoing reasons, it is hereby ordered:

1. Respondent Kane County, Kendall County and DeKalb County are dismissed with prejudice for lack of jurisdiction;
2. Respondents Patrick Dixon, Melvyn E. Dunn, Gene L. Nottolini, Michael F. O’Brien, Barry E. Puklin, James E. Quetsch, James M. Wilson, judges of the 16th Judicial Circuit are dismissed;
3. Count I is dismissed with prejudice for lack of jurisdiction to issue a writ of mandamus;
4. Respondent’s motion to dismiss Count II for failure to state a cause of action against the State is denied;
5. Respondent’s motion to dismiss Count II as barred by collateral estoppel is denied;
6. Count II is dismissed with prejudice as barred by laches; and
7. This entire claim is therefore dismissed with prejudice.

       In Casey, supra, the Supreme Court rejected laches where public employees were “discharged in furtherance of a general policy involving numerous employees" and delayed filing suit for 23 months while they awaited a decision in “a test case which directly controlled [their] claims” and involved eight discharged employees, 370 N.E.2d at 502.


source: Caselaw Access Project

author: Mitchell, J.

license: Public Domain

text:
    (No. 94-CC-0600
    Karla Burns, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 26, 2001.

    Andrew Kleczek, for Claimant.
    Jim Ryan, Attorney General (Mark Marlott, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Mitchell, J.

Claimant, Karla Burns, seeks judgment against Respondent, State of Illinois, for injuries she suffered when she tripped and fell at the top of a stairway located in Edwards Hall on the campus of Illinois State University (“ISU”). Claimant alleges that broken tiles at the top of the stairway caused her to fall. She asserts Respondent breached its duty to maintain its premises in a reasonably safe condition. Her complaint states Respondent was guilty of one or more of the following acts or omissions:

“a. By allowing said premises to deteriorate thereby rendering the stairway unsafe for use as a passageway for Claimant and other invitees;
b. By failing to warn Claimant and other invitees of an unsafe condition on its premises;
c. By failing to remedy the unsafe condition of the premises prior to the occurrence of the incident alleged hereby; and
d. By negligently repairing the unsafe condition alleged herein thereby exasperating the hazard on the premises.”

Claimant testified that on May 6, 1992, she was a full-time student at ISU. In the early afternoon she went to Edwards Hall to take her last final exam. She was wearing Nike cross-runners. The exam room was on the second floor of the building which had three entrances. She entered the building through what she called the main entrance. She had used this entrance on occasion, but she usually entered the building through an entrance she called the rear entrance. She was using the main entrance because the students had been told prior to the final exam that they would have to check in at a specific site to have their I.D.s checked before the exam. She walked up the stairway that is shown in Claimants Exhibit No. 2. This stairway leads to a landing and then to another stairway going in the opposite direction which leads up to the second floor. Claimant then proceeded up the stairway leading to the second floor. Claimants Exhibit No. 4 shows the top of this stairway. The upper right-hand portion of Claimants Exhibit No. 4 shows the doorway that Claimant needed to enter to get into another entrance to the exam room.

Claimant testified that, as she approached the second floor, she was going up the right side of the stairwell. There were a few other students on the stairs at the time. She was holding onto the railing with her right hand and was carrying her workbook and utensils in her left hand. As she stepped onto the platform at the top of the stairs, the sole of her foot caught onto jagged tiles on the platform which is shown in both Claimants Exhibit No. 4 and Claimants Exhibit No. 5. She then fell and hit her left knee and head on the floor. After getting up from the floor, she proceeded to the exam room where she told her professor that she had fallen. He told her she had to take the exam. She then went into the exam room, but stayed only one hour before she left.

Claimant testified that she did not seek medical treatment for several days after her accident because she did not think the fall was very serious. However, when her knee and head continued to ache she contacted ISU Health Services which was unable to help her because it was in the process of moving. She then sought treatment from Dr. Bernard Cahill, an orthopedic specialist in Peoria. Dr. Cahill saw Claimant on June 16, 1992. He assessed a probable meniscal tear and scheduled orthroscopic surgery which was performed on July 15, 1992. The surgery left Claimant with three one-inch to two-inch scars on her knee. Claimant testified she received therapy for her knee from the Orthopedic Institute of Illinois in 1993 and 1994 and now does therapy on her own. She further testified that Dr. Roger Rodriguez, her family physician, gives her pain medication for her knee when it is necessary.

Claimant testified that, following the surgery on her knee, she sought medical treatment for her headaches, which she thought might have been related in some way to the knee pain. She went to ISU Health Services which prescribed drags for her. When her headaches caused her nausea and vomiting, ISU Health Services would give her an injection or she would go to either a hospital in Bloomington or Proctor Hospital in Peoria. ISU Health Services referred Claimant to the Diamond Headache Clinic (“Diamond Clinic”) in Chicago in 1994. At the Diamond Clinic, Claimant underwent a series of tests, including CAT scans and MRIs, and was treated with medication. Her physician at the Diamond Clinic is Dr. Frietag, who she sees three or four times a year. Claimant testified that her family physician, Dr. Rodriguez, has been treating her for her headaches since 1996. Regarding the headaches, Claimant testified she has also seen Dr. Miller at Physicians for Family Medicine in Peoria, Dr. El-Dieiy, an eye, ear, nose and throat specialist, and dentists at Associated Dentistry. Claimant further testified she has been treated by a dermatologist for the side effects of medication she has been prescribed. Her headaches have continued since the accident.

Claimant testified that prior to the accident she participated in running, swimming, water aerobics and skating, but now can only walk and swim. She continues to have headaches twenty-four (24) hours a day and continues to take prescription medicine for the headaches and over-the-counter medication for her knee. Claimant contends that the headaches have totally changed her life since she has problems concentrating and cannot work. She further contends the headaches made it difficult to finish college.

Claimant testified on cross-examination that she was not aware of the broken tiles prior to the accident and did not notify anyone at ISU about the condition. She stated that, prior to the accident, she had experienced tension headaches in the upper back portion of her neck for which she had seen a physician or two, including a neurologist, who diagnosed her as having cluster headaches. She testified that in 1987 her nose was broken while giving swimming lessons when a student swam into her. She continued to see physicians after the swimming incident regarding a blockage in her nose and an impingement in her shoulder and arm. She testified that, prior to the accident in May of 1992, she had taken antidepressants and medications prescribed by her dermatologist.

Claimant also testified on cross-examination that her headaches have prevented her from taking a standard schedule while attending school. Since the accident, she completed a Bachelor of Science in Political Science in 1994, Bachelor of Science in Criminal Justice in 1997, and was hoping to complete a Masters Degree in Political Science in the spring of 1999. Claimant further testified that, following the accident, she went back to work at her fathers company, Construction Specialists, on a temporary basis until late 1993.

Claimants mother, Shiree Burns, testified that, in May or June of 1992, she and her husband went to ISU and had a conversation with a middle-aged maintenance man in the stairwell where the accident happened. According to Mrs. Burns, the maintenance man informed them that he had informed the University prior to the accident that numerous tiles where the accident happened were broken in that building, but that nothing had been done about them. On cross-examination, Mrs. Bums was unable to provide any further description or identification of the man with whom she and her husband had spoken, except that his hair was brown.

Lyle Spaniol, a carpenter foreman out of Facilities Management at ISU, testified that it was his job to take work requests from Facilities Management and distribute them to the twenty-one (21) carpenters under his supervision to maintain the University. The work requests can be initiated by building service workers, janitors or designated individuals in each building. These work requests describe the area that needs to be maintained and are filed with the Work Management Center in Facilities Management. After the work requests are prioritized, they are assigned to the carpenters for completion. Mr. Spaniol testified that prior to the date of the accident, May 6, 1992, he did not recall ever receiving a work request form for work to be done on the second floor of Edwards Hall, and that any request submitted in May of 1992 would have been completed by the time of the hearing. After viewing Claimants Exhibit No. 6, Mr. Spaniol acknowledged that his crew had replaced some tiles in the hallway but he could not remember when that work had been done.

Mr. Spaniol testified on cross-examination that he did not know how long the tiles had been missing at the top of the stairway as shown in Claimants Exhibit No. 5, and that to his knowledge the University did not have any procedure to inspect its various facilities for missing tiles, except for a janitor or someone else to report it to his department. According to Mr. Spaniol, only three square feet of tiles in the area could be replaced at any one time because of asbestos hazards, and the entire second floor of Edwards Hall would have to be shut down to replace more than three square feet of tiles. Mr. Spaniol further testified he thought that the tiles where the accident occurred had been in the building since it was built and were at least 100 years old.

The State is not an insurer of the safety of persons visiting its buildings. Rather, the State owes a duty of reasonable care to invitees such as Claimant in maintaining its premises. (Berger v. Board of Trustees of University of Illinois (1988), 40 Ill. Ct. Cl. 121, 124.) Claimant bears the burden of establishing by a preponderance of the evidence that the State breached its duty of reasonable care, and that the State had actual or constructive notice of the dangerous condition. Hardeman v. State (1995), 47 Ill. Ct. Cl. 292, 295.

This Court finds that the condition of the tile shown at the top of the stairs in Claimants Exhibits Nos. 4 and 5 was a dangerous condition that was the proximate cause of Claimants fall. Allowing broken tile to exist at the top of a stairway, that is frequented by students who should be expected to be carrying books and other utensils, shows a lack of reasonable care toward those students.

Respondent argues that Claimant has failed to show that Respondent had actual or constructive notice of the dangerous condition. The Court agrees that Claimant failed to prove Respondent had actual notice of the condition. The only testimony offered to prove actual notice was that of Claimants mother, Shiree Burns, who testified that subsequent to the accident she and her husband had a conversation with a brown-haired, middle-aged maintenance worker at Edwards Hall who told her he had informed the University that numerous tiles where the accident happened were broken. She was unable to provide any further description or identification of the man, who was not available for cross-examination. This testimony lacks sufficient weight to prove actual notice.

However, the Court finds that Respondent has been shown to have had constructive notice of the dangerous condition. The condition of the tiles shown in Claimants Exhibits Nos. 4 and 5 appears to have been in existence for some time prior to the accident. Respondents witness, Mr. Spaniol, testified that he thought the tiles, where the accident occurred, had been in the building since it was built and were at least 100 years old. After reviewing Claimants Exhibit No. 6, Mr. Spaniol acknowledged that his crew had previously replaced some of the tiles in the hallway, yet apparently no one at the University felt it was necessary to report and repair the broken tiles at the top of the stairway. Constmctive notice is to be determined on a case to case basis. (Lambatos v. State (1992), 44 Ill. Ct. Cl. 238, 240.) Respondent can be constmed as having had sufficient notice of the broken tiles which caused Claimant to fall.

Respondent urges that Claimants comparative negligence should either prevent any recovery or reduce the amount of any recovery she may receive. Claimant testified that she had used the entrance leading to the stairway on occasion, but usually entered Edwards Hall through a different entrance. She further testified that she was holding on to the railway with her right hand as she proceeded up the stairway and was carrying her workbook and utensils in her left hand. The Court finds that the record does not support Respondents assertion that Claimant failed to take precautions to insure that she did not trip on the tiles.

For Claimant to recover, the Court must find that Claimants injuries were caused by Respondents negligence by a preponderance of the evidence. (Gildehaus v. State (1993), 46 Ill. Ct. Cl. 176, 185.) Claimants Exhibit No. 8, an evidence deposition of Claimants family physician, Dr. Roger Rodriguez, was presented on Claimants behalf. He has treated Claimant since 1994. Dr. Rodriguez testified that in his opinion Claimants knee injury and recurrent knee pain are related to the accident and that the surgery and treatment by Dr. Cahill was reasonable and necessary. It was also his opinion that Claimants migraine headaches and cervicogenic pain are a direct result of her fall, and that the treatment she had received from the Diamond Clinic for the headaches was reasonable and necessary. Dr. Rodriguez also indicated that he had treated Claimant for depression and understood her depression to be related to the chronic pain she has experienced from her recurrent migraines. In Dr. Rodriguezs opinion, Claimant has a strong possibility that her headaches might never go away. He further opined that Claimant will probably need arthroscopic surgery or physical therapy for her knee in the future, and that treatment for her headaches will probably have to be continued for the rest of her life.

The top page of Claimants Exhibit No. 7 was admitted as a summary of Claimant s medical expenses as of August 7, 1997. It indicates the expenses totaled $8,565.47. Respondent did not introduce any medical evidence.

The Court finds that Claimant has proven that the injury to her knee and the resulting surgery, pain and suffering, and medical bills are the result of Respondents negligence. It is more difficult to assess the proof regarding Claimants migraine headaches, related depression and degree of disability. Dr. Rodriguez testified that Claimants migraine headaches and depression are the result of her accident. However, Claimant testified she had received treatment for tension and cluster headaches as well as depression prior to her fall. At the hearing on October 15, 1998, Claimant testified she had been able to complete two undergraduate degrees since the accident and was hoping to complete a graduate degree in the spring of 1999.

It would have been helpful to have had more medical testimony regarding Claimant s migraine headaches and the consequences thereof. The Court finds that the medical testimony presented by Claimant is sufficient to prove that her migraine headaches and depression related thereto are the result of her accident. It is also the Courts opinion that, based on Claimants testimony that she has been able to finish two undergraduate degrees since the accident and was planning to finish a graduate degree in the spring of 1999, she is not completely disabled. Claimant also made a claim in her complaint for lost wages but, except for her testimony that she temporarily worked for her fathers company after the accident and that her condition prevented her from holding a job, no evidence was presented to substantiate an award for lost wages. Based on the evidence presented, the Claimant is granted an award of $40,000 as compensation for her injuries, pain and suffering, and medical bills.