text:
    (No. 82-CC-2295
    Spivey Marine & Harbor Service Co., and Continental Insurance Co., Claimants, v. The State of Illinois, Respondent.

      Opinion filed June 23, 1994.

    Goldstein & Price (Simon Tonkin, of counsel), for Claimant.
    Roland W. Burris, Attorney General, for Respondent.
   OPINION

Patchett, J.

This is a tort claim which arises as a result of a towboat-drawbridge collision on the Des Plaines River in the vicinity of Joliet Harbor. This occurred on June 5, 1981, between 9:00 p.m. and 9:30 p.m. As the towboat, the Randy Spivey, approached the Jefferson Street drawbridge, the pilot signalled for the drawbridge to open. The evidence was contradictory as to whether the bridge had begun opening. The pilot of the Randy Spivey, Mr. Rolte, testified that he properly signalled for the bridge to open. He testified that after he saw no response to the first whistle, he blew another whistle and placed his spotlight on the bridge tenders station house. After the drawbridge still failed to respond, Mr. Rolte began to attempt to stop the tow. Mr. Rolte further testified that at no time did the drawbridge tender give the proper signal indicating that the bridge could not be raised.

The Randy Spivey was pushing two loaded coal barges and an empty petro-chemical barge. After it became apparent that the bridge was not going to open in time, Mr. Bolte maneuvered the boat and tow so that the right front cover of the tow (the coal barges, which set lower in the water than the empty petroleum barge) would slip under the bridge. Mr. Bolte cited a concern as to the results of the gasoline barge striking the bridge. He feared fire or an explosion. In order to attempt to accomplish the maneuver described above, Mr. Bolte was forced to swing the rear of his boat toward the left descending seawall and the front of the tow towards the right descending seawall. In other words, the boat and tow moved in a counter-clockwise motion.

The plan did not quite work. The front starboard corner of the lead coal barge made contact with one of the bridge piers. This contact caused the cable securing the gasoline barge to break, setting the barge adrift.

The real damage with which we are concerned, however, occurred when the towboat continued toward the left descending seawall. Mr. Bolte found his boat fast approaching a private yacht, the Seaghost, which was moored approximately 400 to 450 feet below the Jefferson Street Bridge near the left descending seawall. Mr. Bolte testified that he tried several different maneuvers to avoid hitting the yacht, but they all failed. The towboat struck the yacht, causing it to sink.

At the trial of this cause before a commissioner of this Court, the Respondent was precluded by the commissioner from presenting evidence as to the yacht owner’s negligence in the mooring of his yacht. The commissioner’s reasoning for this was that the Respondent did not raise the issue as an affirmative defense as required by section 2 — 613(d) of the Illinois Code of Civil Procedure. 735 ILCS 5/2 — 613(d).

There was evidence, however, as to the possible negligence of Mr. Bolte, the pilot of the Randy Spivey. Mr. Bolte shined his spotlight on the bridge tenders house, possibly causing at least some of the delay in opening the bridge. It appears likely that the bridge was approximately 30 degrees open when the barge struck it.

In addition, Mr. Bolte s own testimony was that upon realizing that the bridge was not opening quickly enough, he traveled an additional 200 to 400 feet before “backing hard” on his engine. If he had not delayed so long, it is possible that there would have been no accident at all. In addition, there was some evidence that the Randy Spivey hit the Seaghost twice. The second hit occurred as the Randy Spivey attempted to maneuver away from the bridge.

This claim presents a varied and interesting set of legal issues. The first and overriding issue is whether maritime law applies to this claim. The Court of Claims has decided a series of bridge/tugboat collision cases. In Fabick Tugboat Rental Company v. State (1952), 21 Ill. Ct. Cl. 360, this Court awarded damages in favor of the tugboat company as a result of a collision with the drawbridge. That case cited with approval the case of Clement v. Metropolitan West Side Elevated Railway Co. (7th Cir. 1903), 123 F. 271. There the seventh circuit stated:

“A bridge spanning a navigable river is an obstruction to navigation tolerated because of necessity and convenience to commerce upon land. Such a structure must be so maintained and operated that navigation may not be impeded more than is absolutely necessary, the right of navigation being paramount. It is incumbent upon the owner that the bridge be so constructed that it may be readily opened to admit the passage of craft, and maintained in suitable condition thereto. It is also his duty to place in charge those who are competent to operate the bridge, to watch for signals, and to open the bridge for the passage of vessels, and for the performance of such delegated duty he is responsible. It is also his duty to equip the bridge with proper lights giving warning of the position of the bridge and of its opening and closing. If for any reason the bridge cannot be opened, proper signals should be given to that effect, such as will warn the approaching vessel in time to heave to. A vessel, having given proper signal to open the bridge and prudently proceeding under slow speed, has, in the absence of proper warning, the right to assume that the bridge will be timely opened for passage. She is not bound to heave to until the bridge has been swung or raised and locked, and to critically examine the situation before proceeding (City of Chicago v. Mullen, 54 C.C.A. 94, 116 Fed. 292), but may carefully proceed at slow speed upon the assumption that the bridge will open in response to the signal, and may so proceed until such time as it appears by proper warning, or in reasonable view of the situation, that the bridge will not be opened (Manistee Lumber Company v. City of Chicago [D.C.] 44 Fed. 87; Central Railroad Company of New Jersey v. Pennsylvania Railroad Company, 8 C.C.A. 86, 59 Fed. 192), when it becomes the duty of the vessel, if possible, to stop, and, if necessary, to go astern.” Clement, 123 F. 271 and 273.

In 1958, in Vickers v. State (1958), 22 Ill. Ct. Cl. 659, this Court again awarded damages for a similar collision. The Court there held that the State was negligent for not raising the bridge, and also for failure to warn that the bridge would not open. There again the Court cited with approval the case of Clement v. Metropolitan West Side Elevated Railway Co., as well as the quote cited above. There the Court found the State liable for a failure to raise the bridge in time and the failure to give the required warnings that the bridge was not going to be raised. The Court cited certain regulations and directives issued by the U.S. Corps of Engineers regarding signals to be given by bridge tenders. Those same signals, in somewhat amended form, were still valid at the time of the accident in question. In 1973, this court also awarded damages for the failure to raise a bridge in Federal Barge Lines, Inc. v. State (1973), 29 Ill. Ct. Cl. 25. Once again, the court cited with approval Clement v. Metropolitan West Side Elevated Railway Co., cited above.

While this court has traditionally found liability on the part of the Respondent for failure to raise the bridge in time, it has never addressed the issue of whether these cases fell specifically under maritime law or under State law. Either the issue was not raised, or it was not necessary to reach a decision in the prior cases.

It is clear that certain Federal statutes govern the operation of drawbridges. Title 33 U.S.C. §499 provides that:

“The owner of or the agency controlling a drawbridge crossing navigable waters of the United States shall provide the appliances and the personnel necessary for the safe, prompt, and efficient operation of the draw.” 33 C.F.R. § 117.555(a).

In addition, Title 33 U.S.C. §494 provides that:

“The draw shall be opened promptly when the signal prescribed in Paragraph (d) of this section for the opening of the draw is received from an approaching vessel ° ° °.” (33 C.F.R. §117.555(d).) (Emphasis added.)

Obviously these statutes directly control the facts of the situation we are faced with. The statutes by themselves, and the associated rules promulgated for their implementation do not, however, automatically control the issue of whether admiralty law applies in this case.

The law regarding admiralty jurisdiction was dramatically altered by the United States Supreme Court in Executive Jet Aviation, Inc. v. City of Cleveland (1972), 409 U.S. 249, 44 L. Ed. 2d 454, 93 S. Ct. 493. Prior to this case, admiralty law jurisdiction was based on a fairly strict locality test. The district court set forth the test, primarily relying on Chapman v. City of Grosse Pointe Farms (6th Cir. 1967), 385 F.2d 962. The district court set forth the test as: (1) the locality where the alleged tortious wrong occurred must have been on navigable waters, and (2) there must have been a relationship between the wrong and some maritime service, navigation, or commerce on navigable waters.

Based on that test, the circuit court of the sixth circuit affirmed a district court decision denying admiralty jurisdiction of a case which arose because of an aircraft crash into Lake Erie. It was appealed to the U.S. Supreme Court, which affirmed the decision. In doing so, the Supreme Court set forth a new test for admiralty jurisdiction. They said that serious difficulties often occur with the locality test, which were illustrated by cases where the maritime locality of the tort was clear, but the invocation of admiralty jurisdiction was almost absurd. There the court gave examples such as a swimmer at a public beach injured by another swimmer or a submerged object on the bottom. Some courts have held admiralty jurisdiction in such cases, while other circuits declined to find admiralty jurisdiction. The courts stated that despite the broad language of cases like The Plymouth (1866), 70 U.S. (3 Wall), 20, 18 L. Ed. 125, the Supreme Court had never explicitly held that a maritime locality was the sole test of admiralty court jurisdiction. Indeed the Court pointed out that Congress had extended admiralty jurisdiction predicated on the relation of the wrong to maritime activities, regardless of the locality of the tort via the Extension of Admiralty Jurisdiction Act, 62 Stat. 496, 46 U.S.C.§740, enacted in 1948. That act was passed specifically to overrule cases such as The Plymouth, supra, which had held that admiralty does not provide a remedy for damage done to land structures by ships on navigable waters.

Although the specific holding of Executive Jet Aviation, Inc., applied only to aviation, the Court clearly held that they would no longer invoke admiralty jurisdiction because of the mere fact that the alleged wrong occurred, or is located on or over, navigable waters. The Court did signal that they would require the wrong to bear a significant relationship to traditional maritime activity.

Subsequent to the Supreme Courts decision, several circuit courts had occasion to rule on or consider admiralty jurisdiction in somewhat less than normal circumstances. In Kelly v. Smith (5th Cir. 1973), 485 F.2d 520, the court held that maritime jurisdiction would be invoked where a river pilot was injured by rifle fire directed at his vessel from an island in the Mississippi River which was being used for deer hunting. There the court said that circumstances to be considered are functions and roles of parties, types of vehicles and instrumentalities involved, causation and type of injury, and traditional concepts of the role of admiralty law. In Gypsum Carrier, Inc., v. Union Camp Corp. (5th Cir. 1974), 489 F.2d 152, the Fifth Circuit invoked admiralty jurisdiction when a vessel collided with a railroad bridge because smoke emitted from a paper mill nearby obstructed vision.

These and similar cases clearly establish that admiralty law should apply to this claim. We so hold. See also The Pennsylvania Railroad Company v. SS Marie Leonhardt (E.D. Pa. 1962), 202 F. Supp. 368; N.M. Paterson & Sons, Limited v. City of Chicago (7th Cir. 1963), 324 F.2d 254; Chicago & Western Indiana Railroad Co. v. Motorship Ruko Maru (7th Cir. 1974), 505 F.2d 579; St. Louis-San Francisco Railway Co. v. Motor Vessel D. Mark (S.D. Ala. 1965), 243 F. Supp. 689.

Deciding that admiralty law applies to this claim does not complete the analysis of all the pending issues, however. Even if maritime law applies to cases involving vessel drawbridge collisions, it does not automatically apply in a court such as the Court of Claims. Obviously the Claimants in this case could have sued anybody but the State in Federal or State court on a maritime claim. Because the State has immunity, abrogated only by the Court of Claims system, they must bring their claim in this forum. Federal courts have held in Continental Casualty Co. v. Canadian Universal Insurance Co. (5th Cir. 1979), 605 F.2d 1340, that a maritime issue could be raised in a diversity suit, or brought in State court. The court, however, held that while jurisdiction to decide litigation may be concurrent with State courts, or could be used to invoke Federal court jurisdiction on some independent basis, maritime law determines the rights of the parties involved.

In Austin v. Unarco Industries, Inc. (1st Cir. 1983), 705 F.2d 1), the court held that once admiralty jurisdiction is established, all of the substantive rules and precepts peculiar to the law of the sea become applicable. This is true even when the plaintiff decides to pursue his claim in the civil side of Federal or State court. The court went on to hold that while State law may supplement admiralty law, it may not flatly contradict it. State laws are generally referred to only when it affords greater protection to maritime employees than provided by admiralty law. The court reached a similar conclusion in Taylor v. Lloyds Underwriters of London (5th Cir. 1992), 972 F.2d 666 in which they held that the interpretation of a contract of marine insurance, in the absence of specific and controlling Federal rule, can be determined by reference to appropriate State law. Here the court cited with approval Wilburn Boat Co. v. Firemans Fund Ins. Co. (1955), 348 U.S. 310, 99 L. Ed. 337, 75 S. Ct. 368.

For the reasons cited in these cases, we believe that if we are going to have a claim system abrogating State immunity, and if we are going to decide tort cases involving admiralty law, that this court must be guided by traditional concepts and rules of maritime law.

In applying these rulings to the facts of the present case, we first come to the issue of comparative negligence. The commissioner of this Court refused to allow the Respondent to present evidence of the possible negligence of the yacht owner because they had not pled it as an affirmative defense. Since we have previously ruled that maritime law applies to this case, and not State tort laws, the specifics of the Code of Civil Procedure, sec. 2 — 613(d), would not apply. In N.M. Paterson & Sons, Limited v. City of Chicago (7th Cir. 1963), 354 F.2d 254, the seventh circuit court of appeals held that the district court erred in invoking the doctrine of comparative negligence in an admiralty action involving a collision between a steamer and a bridge. The court held that the equal-division rule should have been applied. That rule provides that even if the ship contributed two-thirds of the total fault, as opposed to one-third on the part of the City, the co-defendants would have to divide the damages. This was not brought before this Court at any time during the trial or briefing of this case. The equal-division rule basically provides that the parties divide the damages equally even though one is more at fault than the other. If this rule had been invoked in the present claim, it would have meant that the State of Illinois, and the barge operator, would have to divide the damages to the owner of the yacht, regardless of their respective degrees of fault. This rule, however, would have come into direct conflict with the rule of the Court of Claims which requires that a claimant exhaust all his remedies prior to coming to the Court of Claims.

In this case, the owner of the yacht, Joseph Jura, in fact sued the barge company in Federal court, and he filed a claim in the Court of Claims. After reaching a settlement with the barge company in Federal court, he assigned his claim against the State to the barge company. His claim against the State had been placed on general continuance in conformity with the Illinois Court of Claims Rules while he pursued his Federal lawsuit. Therefore, the issue is whether we should apply the equal-division rule to this claim, thereby splitting the damages of the yacht owner between the barge operator and the State of Illinois, or whether we should decline to apply that rule because the Claimant was required to exhaust his remedies.

Before we decide that issue, let us again address the facts of this case. In The Pennsylvania Railroad Co. v. SS Marie Leonhardt (E.D. Pa. 1962), 202 F. Supp. 368, the United States District Court for the eastern division of Pennsylvania found that a ship having sounded the proper signal may proceed on approaching a drawbridge on the assumption that the bridge will be timely opened. The ship is under no duty to heave to and critically examine the situation to satisfy itself that the drawbridge is operating properly. While the master of a ship may not heedlessly steer the ship into a closed drawbridge, he may approach carefully on the assumption that duties imposed upon bridge personnel will be performed in a timely fashion, in the absence of a signal from the bridge to the contrary. The right of a ship to attempt passage of a drawbridge becomes well-nigh absolute when the bridge personnel, by means of affirmative conduct, extend invitation to proceed in response to the vessel’s signal. It should be noted that this Court also cited with approval the case of Clement v. Metropolitan West Side Elevated Railway Co., supra. The court also stated that a closed drawbridge without more, or the display of a visual signal indicating that the draw is closed, does not suffice to serve notice upon the pilot or master of an approaching vessel that it will not be timely opened. Viable standards and reasonable prudence, applied to the totality of the circumstances, determine the allocation of fault in each instance. The court cited with approval the case of The Majestic (4th Cir. 1936), 80 F2d 879, and Munroe v. City of Chicago (7th Cir. 1912), 194 F. 936.

Based on the facts presented to this court at the trial, there is no evidence that the vessel itself violated any standard, law, or regulation. While the conduct of shining the light upon the bridge tenders station may have contributed in some manner to the accident, it has not been shown that the shining of the light was in any way a violation of procedure or standard law regulation. In addition, although the pilot did not immediately begin maximum efforts to slow down when he first became concerned about the bridge not opening, it has not been proven that this violated any applicable law or standard. In fact, the standard evidently allows the ship to approach within 300 feet of the bridge before giving the signal to open it. There was little, if any, evidence that the barge was moving at too great a speed. Therefore, we find no liability on behalf of the pilot or barge operator as a result of evidence produced before this Court. We therefore do not apply the equal-division rule.

As we previously stated, the ruling of the commissioner of this Court prohibited the Respondent from producing evidence as to the alleged or possible negligence of the yacht owner in mooring his boat. However, we do not feel that this evidence is necessary in order to have a complete resolution of the issues before this court. We do find negligence on the part of the bridge tender, and therefore on the Respondent, the State of Illinois.

We now must consider the specifics of the Claimants’ request for relief. In count I, the Claimants sought recovery for an amount of money as the assignee of the Seaghost owner’s claim against the Respondent. The Claimants received said assignment by paying the owner of the yacht and his insurer the amount of $10,750. In return, the owner signed a covenant not to sue and assignment for the Claimants’ benefit.

In count II, the Claimants asked the court to award them $12,196 for court costs and attorney fees which were spent in defending the lawsuit filed against them by the owner of the yacht. In addition, the Claimant wants prejudgment interest on both of the above amounts. The Claimant cited the case of Lake Front Realty Corp. v. Lorenz (1960), 19 Ill. 2d 415, 421-23, an Illinois Supreme Court case which analyzed the issue of prejudgment interest against governmental entities. That case was cited with approval by the Court of Claims in Toombs v. State (1977), 33 Ill. Ct. Cl. 205. Illinois has long taken the view that interest cannot be allowed unless a statute expressly provides for such interest. Accordingly, in Toombs this Court denied prejudgment interest on the grounds that it was recoverable only if authorized by statute. We, however, have already held that admiralty law governs this claim. As such, we must use admiralty law with all its traditional rules and procedures. Admiralty law provides for prejudgment interest. Therefore, we will allow prejudgment interest in this claim. Prejudgment interest is granted under the general law in admiralty cases that “prejudgment interest is permitted in the discretion of the trial court and should be granted unless there are exceptional or peculiar circumstances.” Federal Barge Lines, Inc. v. Republic Marine, Inc. (8th Cir. 1980), 616 F.2d 372.

There is no doubt that the Claimants, in settling the lawsuit with the owner of the yacht, received an assignment of their rights. The owner of the yacht received $10,750 from the Claimant as payment for their damages. Claimants argue that they are now entitled as the assignee of the yacht owner to the entire amount of damages, not just the $10,750, or a portion thereof, they paid to the owner of the yacht. They cite as authority a case reported in American maritime cases, Consolidated Grain & Barge Co. v. Chicago & Northwestern Transportation Co. (S.D. Ill. 1981), 1983 A.M.C. 90. Assignments of causes of action are permitted under maritime law. (American Commercial Lines Co. v. Valley Line Co. (8th Cir. 1976), 529 F.2d 921.) It is generally recognized that an assignee stands in the shoes of his assignor and can recover what the assignor could have recovered. However, must we apply those rules in connection with the Court of Claims rules which require exhaustion of remedies and the set-off. Since the yacht owner has already received $10,750, that figure must be set off against the total amount of damages. The Claimant sought recovery of $18,876 in their complaint, and $22,888 in their brief. We will use the latter figure as a more appropriate figure for damages. Subtracting $10,750 from $22,888, we come up with a figure of $12,138 as possible remaining damages available to the Claimant as assignee of the yacht owner. We award that to the Claimant, along with prejudgment interest at the rate of 5% from the date of the accident. Your award under count I is $12,138, plus prejudgment interest of $7,958.04, for a total award of $20,096.04.

The remaining issue before this Court is count II, which requests attorney fees and court costs based on a theory of indemnity under admiralty law. This court has held in one case that attorney fees are recoverable against the State of Illinois. That case, as cited by the Claimant, is Douglas v. State (1977), 31 Ill. Ct. Cl. 499. There this Court allowed attorney fees incurred by the claimant in defending a contract action which was brought because of the conduct of the State of Illinois. The Court can see little distinction between the rationale used by this court in Douglas and the factual situation in the present case. If we apply maritime law, clearly attorney fees would be allowable under indemnity theory. However, we do not feel that this is a case of indemnity. As we understand the rule of indemnity under maritime law, a non-negligent or secondarily negligent party who makes a payment to a tort victim is entitled to indemnification from the party whose active or primary negligence caused the injury. (Tri-State Oil Tool Industries, Inc., v. Delta Marine Drilling Company (5th Cir. 1969), 410 F.2d 178; United States v. GTS Adm. Wm. Callaghan (S.D. N.Y. 1986), 643 F. Supp. 1483.) Also under admiralty law, a party who pays more than its proportionate share of liability to the victims is entitled to contribution from other tortfeasors. (Griffith v. Wheeling-Pittsburgh Steel Corp. (3d Cir. 1979), 610 F.2d 116, 129-130.) There is no doubt that recoverable damages in an indemnity action include costs and attorney fees reasonably incurred by the indemnifiee in defending claims for which the indemnifier is determined to be responsible. United States v. GTS Adm. Wm. Callaghan, 1484-1485.

The problem in this case, however, is that we cannot hold as a matter of law that the barge operator is non-negligent, or secondarily negligent. Although as we have previously stated, there was insufficient evidence of negligence on the part of the barge operator produced at the trial before this court, they settled their case with the owner of the yacht company thereby admitting culpability. They settled for $10,750, which is roughly 50% of the damages. If we average the amount sought in the Claimants original complaint, and the amount of the brief, we come up with $20,882. $10,750 is in fact in excess of half of that figure. We take the settlement, and the money paid, as admission of partial liability on behalf of the towboat operator. In addition, if the barge operator is going to recover on a theory of indemnity, the burden of proof as to whether they were non-negligent, or secondarily negligent, was on them.

In addition, the Claimant asked for in excess of $12,000 for attorney fees and court costs in defending the case in which they settled for $10,750. Attorney fees and court costs must be reasonably incurred. Therefore, while we find that attorney fees and court costs would be available to a claimant before the Court of Claims under maritime or admiralty law, we find there is insufficient evidence before this Court to make an award on the basis of indemnity.

For the reasons above stated, we award the Claimant the amount of $12,138, plus $7,958.04 for prejudgment interest at the rate of 5% from the date of the accident through June 20, 1994. The total award is $20,096.04.


source: Caselaw Access Project

author: Frederick, J.

license: Public Domain

text:
    (No. 83-CC-0662
    J. J. Altman & Company, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 27, 1994.

    Marvin W. Goldenhersh, for Claimant.
    Roland W. Burris, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This Claimant, J. J. Altman & Company, a corporation, filed its complaint with the Court of Claims on November 4, 1982, seeking $22,448.10 in damages from the State of Illinois for litigation costs it incurred as a result of a lawsuit for fees which the Capital Development Board (hereinafter referred to as C.D.B.), did not pay a subcontractor, American Drilling Company, for work it authorized American Drilling Company to perform.

A trial was held before the Commissioner assigned to the case.

In 1973, the Claimant entered into a contract with the State of Illinois through the C.D.B. for the construction of a regional office building in East St. Louis, Illinois. Claimant by contract was the construction manager. During the course of construction, emergency work was authorized by the Respondent to allow American Drilling Company to perform work on the elevator shafts. The additional services amounted to $8,525.65. These matters were agreed to and stipulated to by the State before the Court, however, the C.D.B. had refused to authorize payment for American Drilling Company. American Drilling Company brought suit against Claimant and received a judgment of $8,525.65 plus court costs of $49.20. During the course of the litigation, Claimant incurred $8,531.25 in legal fees. Claimant proceeded through the administrative procedures of the C.D.B. to recoup the amount owed to American Drilling Company, but the claim was repeatedly refused. After paying the judgment, Claimant initiated this action to recover the amount of the judgment and expenditures made in defending the claim of American Drilling Company in circuit court.

At the hearing of this matter before the Court of Claims Commissioner, the State stipulated that the State was in fact hable for the amount owed American Drilling Company, $8,525.65. The sole matter before the Court was the liability of the State for attorneys fees incurred by the Claimant in the defense of the suit by American Drilling Company in the amount of $8,531.25 and the court costs of $49.20.

The general rule is that absent a statute to the contrary or case law, each party bears the cost of their own attorneys fees. (Meade v. State (1979), 33 Ill. Ct. Cl. 113.) The Claimant has not cited nor can we find a statute authorizing the payment of attorneys fees and court costs under the facts of this case. The Claimant, however, is requesting fees incurred in litigation with a third party, not for fees incurred in the present case. The Claimant contends that the litigation between American Drilling Company is a result of Respondents conduct. This Court has held that attorneys fees are a proper element of damages recoverable in the Court of Claims where they were incurred in separate litigation with a third party as a result of Respondents breach of contract and therefore are in the nature of an expense incurred as a result of the breach. (Douglas v. State (1977), 32 Ill. Ct. Cl. 113.) The Claimant has relied on Nalivaika v. Murphy, 458 N.E.2d 995. Nalivaika can be distinguished as it was a case brought in tort, not contract. The matter before the Court is a matter of the parties’ contract. If a breach of the underlying contract by Respondent were proven, the Claimant would be entitled to attorney’s fees incurred in the third-party litigation. However, the Claimant has not alleged any facts or presented any evidence to prove a breach of contract by Respondent, nor has the Claimant cited the Court to any section within said contract for support for its argument. The Claimant has the burden of proving its damages. (Harris v. State (1989), 41 Ill. Ct. Cl. 184.) Claimant has not met its burden of proof in alleging and proving a breach of contract on the part of Respondent which led to the damages claimed, namely the attorneys fees. The Claimant should recover the amount of the judgment of $8,525.65 incurred in the third-party suit, per the States stipulation to liability, but cannot recover the attorneys fees or court costs from the third-party litigation.

Based on the foregoing, Claimant, J. J. Altman & Company, a corporation, is awarded $8,525.65 in full satisfaction of its claim.


author: Mitchell, J.

text:
    (No. 83-CC-2749
    Robert Early and Diane M. Early, Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 20, 1994.

    John H. Henely, Ltd. (John H. Henely and James A. Santucci, of counsel), for Claimant.
    Roland W. Burris, Attorney General (John A. Simon, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Mitchell, J.

On Saturday, June 13, 1981, heavy rains hit the southwest suburban Chicago area, including northeastern Will County, causing flooding in areas of Joliet and the surrounding area. That afternoon, Claimants, Robert Early and Diane M. Early, husband and wife, traveled from their home in Minooka along Interstate 80 west to Morris, Illinois where a wedding and reception took place. Claimants admit that they did consume some alcohol at the reception, then joined a group at a lounge about 9 p.m. and did consume “a few drinks.” At about midnight, they left to go home, a drive of approximately 20 to 25 minutes, and decided to use Illinois Route 6, which runs roughly parallel to Interstate 80, but is an older two-lane road and not a freeway.

On approaching the intersection of Route 6 and Sand Ridge Road, Claimants saw that the road ahead was covered with water from side to side for approximately 100 to 150 feet. Driver, Robert Early, applied the brakes to his car but was unable to stop before entering the water, which caused him to lose control of the vehicle. The vehicle skidded sideways along the right-hand shoulder until it struck a telephone pole. Robert Early suffered injuries, including broken ribs; Diane Early sustained multiple serious injuries which incapacitated her for six months and limited her activities for two years. Claimants seek restitution for their injuries from the State of Illinois, alleging that the signs placed upon the roadway to warn of the hazard were inadequate and failed to alert drivers of the danger from the standing water on the road.

The State testified, largely uncontradicted, that, upon notice from the sheriff’s department at approximately 8:30 p.m. that evening, there was a problem with standing water on Route 6 near Sand Ridge Road, a trained highway maintenance operator, William Weaver, was dispatched to the scene where he removed two signs from an area of the same road which had had a similar problem from standing water earlier in the day, and moved those signs to the area under consideration here. Weaver, in accordance with procedures he had been taught, placed each sign 3/10ths of a mile (approximately 1,584 feet) from the edges of the water in each direction. The signs themselves bore the inscription ‘WATER ON PAVEMENT” in five-inch high black letters on a reflective yellow sign of 36-inch by 36-inch size. Those signs were attached to tripod-type folding stands which have spiked feet to allow the stand to be sunk into the ground to anchor it. Claimants contend that they saw no warning sign and that quite possibly the sign had been blown over by a stiff wind. Claimants’ expert witness further testified that the sign should have been larger, 48 inches by 48 inches, and that only one sign per direction was inadequate — that two would have been better.

A. Whether sign was present. Sheriff’s Deputy Dan Carey testified that, in investigating the accident scene, he had occasion to check to see if the warning signs were posted as had been ordered. He found that they were in place. There was no direct contradictory evidence. There was some indication in the testimony of Jeanette Erickson, a local resident who reported the accident to police, that she did not see any warning signs, but no directly contradictory testimony. It is the finding of the Court that the signs had been posted as per the instructions given by George Poppleton to William Weaver.

B. Size of the sign. Claimants’ expert testified that he believed a 48-inch by 48-inch sign was called for under the circumstances, the States expert, who had a hand in the compilation of the relevant rules, stated that the then-current rules required only a 36-inch by 36-inch sign. A larger sign would have been visible at a greater distance, allowing a longer stopping time. Inasmuch as the Claimants argue that the distance from the sign to the hazard was excessive (see below), this argument does not carry much weight. Clearly it is more difficult to overlook a four-foot square sign than a three-foot square sign, but either size is adequate once the driver is within 200 feet of the sign, and, as stated above, the State did comply with the current rules.

C. Placement of the sign. Claimants further argue that the placement of the warning sign at a distance of 1,500 feet was too far from the hazard and likely to cause confusion since the driver might be looking for the hazard at a distance considerably closer to the warning sign. This argument appears to defy logic. If the driver sees a warning sign, “Water on pavement,” the standard reaction ought to be to slow down, at least by removing the foot from the accelerator, if not immediately beginning the braking process. Fifteen hundred feet is designed to allow the vehicle to come to a reasonable deceleration from the posted speed limit, especially on wet pavement, without placing the vehicles occupants in jeopardy. At the very least, the vehicles speed approaching the hazard will be less for the driver having braked and been put on alert. We find no fault in the placement of the warning signs.

D. Number of signs. Claimants’ expert, Robert Lippmann, made a very good argument for the use of two signs to warn of a hazard, borrowing from the construction industry’s practice; further, he felt it would be better if the distance to the hazard were noted on each sign. These ideas obviously have merit. However, the construction industry can set up signs on a prolonged basis: a construction job can take months. A sign that warns of “construction ahead — 400 feet,” can be used on every job since it is nearly always possible to measure 400 feet from the point of activity. Here, the Respondent stated that use of these signs was rare and the distance placement was based on the type of road and the speed limit. Thus, the highway department would need detachable distance markers and extra equipment. As to the effect of a second warning device for those who missed the first ones, while that may be desirable, such a change of law or rule must come from the State legislature or appropriate State agency, not from the courts.

E. Condition of the sign. There was some testimony as to whether the actual sign used that night was in proper condition: whether it had ever had a reflective coating or whether that coating might have deteriorated from age and rough use. States expert testified that all signs of that type are reflective and no evidence was presented which showed that the actual sign in use had lost its reflective coating.

Route 6 is the second most heavily traveled road in Grundy County and the road had water on it for some time prior to the placement of the signs at approximately 8:30 p.m. However, for at least three hours (9 p.m. to midnight), after-dark traffic traversing this busy road with a posted speed limit of 55 mph was able to see the warning signs, act accordingly by reducing speed, and navigate the water without incident. If only one car came through in either direction every two minutes, that would mean that close to 100 cars saw the warning sign and reacted safely to the situation. While there may have been further steps that the State of Illinois could have taken to reduce the chance of such an accident happening, we find that they acted responsibly under the circumstances.

We can sympathize with the pain and suffering that especially Diane Early has endured because of this accident. However, the State of Illinois did not create unreasonably dangerous conditions; it reacted in a reasonable manner and in accordance with departmental guidelines which were adequate for the multitude of vehicles which preceded Claimants down Route 6 that night. The claim is denied.


author: Jann, J.

text:
    (No. 84-CC-0595
    Carlson Roofing Co., Claimant, v. The State of Illinois, Respondent.

      Order filed April 17, 1987.

      Opinion filed April 7, 1994.

    Carlson Roofing Co., pro se, for Claimant.
    Roland W. Burris, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Jann, J.

On June 17, 1982, Claimant, Carlson Roofing Co. (hereinafter referred to as Carlson), entered into a contract with Respondent Northern Illinois University (hereinafter referred to as NIU) for the installation of a replacement roof of a university building. The contract specifically provided in part that Carlson use only materials manufactured by TREMCO Roofing Company and that the project meet Underwriter’s Laboratory (U.L.) class A rating and that TREMCO issue their ten-year guarantee at the project completion.

After the work on the roof had begun, it was discovered that several amendments to the contract were necessary. The contract price was increased to reflect the additional work and materials required.

It was also discovered that specifications as written could not achieve the U.L. standard required to obtain the TREMCO ten-year guarantee. In order to obtain the U.L. rating, it was necessary to substitute a base sheet material which was $814.98 less expensive than the material originally required, and an insulation which was $1,986.60 less expensive. It must be noted that all undisputed amounts due on the contract have been paid.

The sole issue before this Court is whether or not the State is entitled to a credit of $2,801.58 for the less expensive materials substituted.

It is clear that the purpose of the project specifications as proposed were to offer the bidding contractors a standard on which they could reasonably base their bids. It is reasonable to expect that after a major construction project such as this one has begun, it becomes necessary to make amendments to the original contract agreement.

The evidence indicates Carlson and NIU were agreeable to contract modifications. In fact, the contract price was increased on two separate occasions in the amounts of $2,632.50 and $1,286.39 respectively as additional material and labor became necessary. Carlson was also willing to substitute other less expensive materials when it was determined that the originally specified materials were unsuitable to achieve the ultimate project goals. However, Carlson was not willing to decrease the contract price or credit NIU for the less expensive materials.

Carlson contends that the type of insulation and base sheet were prescribed in the original project specifications and, therefore, the fact that subsequent changes were required was irrelevant. The fact that two substantially less expensive materials were ultimately required is relevant and NIU is entitled to a credit respectively. In the event that NIU had required a substantially more expensive material, NIU would have been responsible to adjust the contract price to reflect the required change. Clearly, the same standard must apply where a substantially less expensive material is ultimately used.

In absence of any evidence disputing the reduced cost of the substituted materials or any evidence demonstrating that the substitution increased labor or any other costs of construction, we hereby find that NIU is granted a credit to the contract in the amount of $2,801.58 and Carlson s claim is denied.


author: JANN, J. JANN, J. Frederick, J.

text:
    (No. 84-CC-2466
    Judy Henderson, Individually, and as Mother and next friend to Melanie Henderson and William Henderson, Jr., and William Henderson, Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 17, 1993.

      Order filed October 19, 1993.

      Supplemental Opinion filed January 25, 1994.

    Kralovec, Jamdois & Schwartz, for Claimant.
    Roland W. Burris, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondents.
   OPINION

JANN, J.

I. Procedural History

This case arose out of a complaint filed in the Court of Claims that asserted that on March 15 and 16, 1983, the Respondents, State of Illinois and Department of Corrections, through its agents and employees at Pontiac Prison, were negligent in allowing inmate Anthony Davis to escape. The complaint further alleged that as a direct and proximate result of the escape, the Claimants were injured when inmate Anthony Davis kidnapped three of them, forced them to drive him to Chicago and forcibly assaulted and raped Claimant, Judy Henderson, in the presence of her children. Additionally, Claimants have asserted loss of consortium on behalf of William Henderson, the husband of Judy Henderson.

The claim was brought pursuant to section 1 of the Escaped Inmate Damages Act (740 ILCS 60/1) and, prior to the hearing on this matter, the Claimants exhausted all other remedies by the filing of a complaint in the Circuit Court of Cook County, which was subsequently dismissed. On January 6, 7, and 16, 1992, evidence was heard in the Court of Claims. Additionally, an evidence deposition was taken of Dr. Paul Taylor, a psychologist, which is of record.

II. Facts

In December of 1981, Anthony Davis (hereinafter Davis) was sentenced to 25 years at Pontiac Correctional Center for five counts of armed robbery and one count of burglary. Pontiac Correctional Center is a maximum security prison which houses approximately 1,500 inmates in the maximum security portion of the facility.

On March 15, 1983, inmates Davis and Rodney Bradley were able to leave the “chow” line and hide themselves within the prison for approximately nine hours. During the time that Davis and Bradley were hiding, at least three head counts of their gallery were performed by correctional officers Gerald Bolen and Edward Schulthes. Exhibits introduced by Claimants show that on all of these occasions the employee performing the count noted that all inmates were present when, in fact, inmates Davis and Bradley had manipulated their beds to make it appear that they were present while they were actually concealed elsewhere in the prison.

Counts performed by employees Allen Forst and Melvin Franks failed to note that the number of inmates returning from dinner matched the number who had gone to dinner. Respondents employee Emil Wooldridge was stationed in tower 18 during the early morning hours of March 16, 1983. He failed to observe inmates Davis and Bradley during their escape. Inmate Davis climbed over the prison walls at approximately 4 a.m. on March 16, 1983, and effectuated his escape. As a result of the incident, numerous prison employees were disciplined.

In March of 1983, the Claimants’ family included William D. Henderson, Jr., Judith K. Henderson, Melanie Henderson, age 10, and William D. Henderson III, age 7. The Hendersons had resided at 1005 South Oak Street in Pontiac for about six weeks and the house was located approximately one block from Pontiac Prison.

On March 18, 1983, Judy and the two children entered the family van for the purpose of going to school. Upon entering the van, they noticed that a black male was lying in the back with a gun pointed at them. The man was wearing a prison outfit and the gun was a rifle. The man told Judy that he had someone else with him in the van and that he wanted to be driven to Chicago. While in Pontiac, Judy requested that the children be released but the kidnapper refused. The record is clear that the man with the gun was in fact Anthony Davis, the escapee from Pontiac.

Davis forced Mrs. Henderson and the children to drive to Chicago where Davis attempted to cash one of Mrs. Henderson’s checks at a drive-through bank. Davis subsequently choked and raped Mrs. Henderson in front of her young children. Davis then forced Mrs. Henderson into a grocery store in another attempt to cash a check. Mrs. Henderson was able to escape with the aid of a store security guard and Davis was apprehended. He was convicted of rape, kidnapping and assault for which he received a sentence of natural life.

Mrs. Henderson and her children were treated at Michael Reese Hospital. Dr. Paul Taylor, a clinical psychologist, provided services to Mr. & Mrs. Henderson and the children in 1983 and in 1991. Medical bills submitted total $2,389.75. Property damage for repairs to the van were $166.20.

III. Negligence

The facts summaried above are not disputed. Our primary task is to determine whether Respondent was negligent by acts of commission or omission in allowing Davis to escape and thereby becomes liable for damages to Claimants.

We have consistently held that the State is not strictly liable in cases involving escapees. (American States, Inc. v. State, 23 Ill. Ct. Cl. 47.) Similarly, the State is not an insurer of actions involving escaped inmates. (Voll v. State (1979), 33 Ill. Ct. Cl. 201.) In order for Claimants to recover, it must be shown that the State was negligent. Johnson v. State (1981), 34 Ill. Ct. Cl. 234.

The record in this case is extensive and includes numerous documents prepared by the Department of Corrections as a result of their investigation of Davis’ and Bradley’s escapes. Ten employees were disciplined. Of the 10, several were terminated (some were eventually reinstated with suspensions).

The current warden of Pontiac, Richard Gramley, testified that he had carefully reviewed the records of the incident which occurred prior to his becoming warden at Pontiac. The following exchange was part of Claimant’s cross-examination of Gramley:

“Q. (By Mr. Schwartz) Do you have any opinions as to how it was that Anthony Davis was able to escape?
A. It appears as though a number of individuals deviated from established procedures policy, did not properly do what they were supposed to do, failed to do what they were supposed to do, and as a result of this the inmate was able to create a breach in security and was able to escape and there were a number of individuals and a variety of different actions.”

In response to a question by the attorney general, the Warden testified as follows:

“Q. (By Mr. Sklamberg) Do you feel that Anthony Davis’ escape in 1983 could have been prevented?
A. Based on what I have read if certain staff had done their job, had followed their procedures as they had been trained to do and as they were supposed to do, yes, sir, it could have been prevented.”

The record shows that numerous head counts dictated by prison procedures and policies in effect at the time were performed incorrectly. Additionally, the two employees stationed in the towers nearest the wall where the prisoners escaped were either asleep or inattentive.

Respondent argues that the State cannot be held liable as Davis’ record while incarcerated gave no indication that he was an escape risk and his actions were not foreseeable.

We find this argument without merit as applied to the facts at hand. The testimony and evidence adduced at hearing clearly illustrated that numerous testing and review procedures were enacted by the Department of Corrections to identify persons who might be deemed serious escape risks. Although Davis had not exhibited behavior which would have identified him as an escape risk, we find no fault with the failure of the system to so identify him. By the veiy nature of the institution, it must be assumed that a person incarcerated may try to escape if given opportunity. Respondent introduced proof of Pontiac’s extremely low escape record to bolster its argument that the escape was not foreseeable. While we agree Pontiac’s record is excellent, we are not persuaded of the unforeseeability of this escape. Davis’ escape was made possible by the failure of security personnel to properly perform their duties. When procedures established to prevent escape are not followed and security is breached it follows that escape is foreseeable. We find Respondent negligent in allowing Davis’ escape.

IV. Damages

There is clear evidence that Davis’ escape was the direct and proximate cause of Claimant’s injuries. The Respondent argues that because Claimants resided about one block from the prison there was an assumption of risk and contributory negligence as regards the possibility of an escape. We disagree. To adopt such a theory would make the siting of prisons in any but the most remote, unpopulated regions impossible. The State owes its citizens a duty to run its prisons in a reasonable manner and act with due care to prevent escape of prisoners in their care.

There was no dispute as to medical and property damage bills introduced into the record. Medical bills totalled $2,389.75 and property damage to the van was $166.20. We hereby award $2,389.75 to Judy Henderson for medical expenses and $166.20 for property damage.

Mrs. Henderson, Mr. Henderson, Will Henderson and Melanie Henderson testified to the physical and emotional damages they have endured as a result of this escape, kidnapping and assault. All four family members were evaluated by Dr. Paul Taylor in 1983 and again in 1991. Dr. Taylor’s evidence deposition was taken in December of 1991. Although certain objections to various elements of the deposition were made by both parties during the deposition, the deposition was made part of the record at hearing.

Dr. Taylor’s deposition discloses that he saw the family members individually in 1983 within approximately six months of the incident. He did not keep notes of these initial meetings apparently because the family’s attorney had asked him to make an analysis based upon a relatively brief examination process which Dr. Taylor felt was not possible at that time.

Dr. Taylor began seeing the Hendersons again in 1991. Most were seen five or six times over a few months. Each family member was given a battery of tests used in evaluating persons embarking on a course of therapy. Although Dr. Taylor opined that additional sessions with each of the Hendersons would have been helpful in making more precise diagnoses, he felt each of the Hendersons had suffered distress in varying degrees from the trauma of the 1983 incident. Dr. Taylor recommended a two-year course of weekly therapy for each of the Claimants and the prescription of anti-depressant drugs. Dr. Taylor estimated the cost of therapy at $3,000 to $4,000 per year, per patient and the cost of anti-depressants at from $45 to $120 monthly.

Respondent asserts that Claimants had a duty to mitigate damages and failed to do so by seeking counseling services only for purposes of litigation. Claimant Bill Henderson admitted he had no interest in pursuing therapy. Dr. Taylors statements regarding Melanie and Will also indicate no desire for therapy independent of this case. Mrs. Henderson testified that therapy was beyond the family’s means in the years after the incident but expressed no desire for help now. While we do not agree that Claimants must seek therapy to mitigate damages, we feel Claimants have failed to sustain their burden of proof as regards an award of damages for future therapy. There is no evidence that Claimants desire additional therapy at this time.

Claimants Judy, Melanie and Will Henderson have made claims for pain and suffering. We feel awards are appropriate based upon the horrifying nature of this case and the testimony herein.

We hereby award Judy Henderson $50,000 compensatory damages for pain and suffering and $20,000 compensatory damages as mother and next friend of William Henderson III. We award $20,000 compensatory damages to Melanie Henderson, who has now reached majority.

William Henderson, Jr. seeks compensation for loss of consortium. Mr. and Mrs. Henderson’s testimony clearly demonstrated that the kidnapping and assault have affected their marriage negatively and have made normal relations virtually impossible. We hereby award William Henderson, Jr. $20,000 compensatory damages.

ORDER

JANN, J.

This cause coming on to be heard on the motion of Claimants for rehearing, it is hereby ordered that: the clerk is directed to set this cause for oral argument on the next available date.

It is further ordered that a voucher be processed in the amount of $20,000 to William Henderson, Jr. consistent with the court’s order of May 17, 1993, there being no issues in dispute regarding said Claimant.

SUPPLEMENTAL OPINION

Frederick, J.

On May 17, 1993, the Court rendered its opinion in this cause. The Court found in favor of all Claimants as to liability and awarded Judy Henderson $50,000; William Henderson, Jr., $20,000; Melanie Henderson, $20,000; and William Henderson III, $20,000. Judy Henderson, Melanie Henderson, and William Henderson III petitioned for rehearing. William Henderson, Jr. accepted his award and did not request a rehearing. The Court heard oral argument on the petition for rehearing.

The Court has seriously considered the parties’ arguments as to the issues of future pain and suffering and future psychological treatment. Based on our review of the transcripts, the pleadings, the Court’s prior opinion, and the oral arguments, we are constrained to find -that the petition for rehearing should be allowed. The Claimants should be awarded significant amounts for future pain and suffering and future psychological expenses based on the evidence in this case.

Based on the foregoing and based upon our review of the entire proceeding, we modify our prior award in the Court’s opinion of May 17, 1993. We hereby award Judy Henderson the sum of $100,000 to compensate her for compensatory damages, future pain and suffering, and future psychological expenses. We hereby award William Henderson III the sum of $65,000 to compensate him for compensatory damages and future damages. We hereby award Melanie Henderson the sum of $65,000 to compensate her for compensatory damages and future damages.


text:
    (No. 84-CC-3313
    Joyce Kish McAllister, Special Administrator of the Estate of John W. Tellone, Deceased, Claimant, v. The State of Illinois, Respondent.

      Order filed April 11, 1994.

    Sandman & Levy (Robert R Dlugajczyk, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Richard J. Krakowski, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Jann, J.

This cause coming on to be heard on the motion of Respondent to dismiss the claim herein, due notice having been given the parties hereto, and the Court being fully advised in the premises, the Court finds that the instant claim for negligence was filed on May 29, 1984. The complaint involves a two-automobile accident that allegedly occurred on May 30, 1983, on the Central Avenue Bridge where it crosses Grand Avenue, in Chicago.

The Complaint alleges the following acts of negligence on the part of Respondent:

(a) Carelessly and negligently failed to provide safe and suitable lane dividers;

(b) Carelessly and negligently designed the lane dividers between the northbound lanes of the Central Avenue Bridge and the southbound lanes of the Central Avenue Bridge at the location aforesaid;

(c) Carelessly and negligently failed to warn motorists that the northbound lanes and the southbound lanes of the Central Avenue Bridge at the location aforesaid were not divided in a suitable manner.

We see that the subject bridge, including the median, was constructed by Cook County in 1938, and reconstruction was completed by the State in 1969.

Section 13 — 214 of the Illinois Code of Civil Procedure (735 ILCS 5/13 — 214) provides:

“§13 — 214. Construction — Design management and supervision. As used in this Section “person” means any individual, any business or legal entity, or any body politic.
(a) Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 4 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission. ° * °.
(b) No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission. However, any person who discovers such act or omission prior to expiration of 10 years from the time of such act or omission shall in no event have less than 4 years to bring an action as provided in subsection (a) of this Section. ° ° ®.”

Since the instant claim was filed more than 10 years after the Illinois Department of Transportations reconstruction of the subject bridge in 1969, we hold that Claimant’s allegations concerning Respondent’s design and construction thereof are barred by the above statute.

We also hold that as to any other of Claimant’s allegations, including maintenance and warning signage with respect to the subject bridge on the date of the incident herein, any such duties were delegated to the City of Chicago pursuant to agreement with Respondent. (The Court has reviewed copies of the maintenance agreement and supporting documentation, submitted pursuant to Court of Claims Regulation 790.140.)

For the foregoing reasons, the claim herein should be dismissed.

It is therefore ordered that Respondents motion be, and the same is, hereby granted, and the claim herein is dismissed, with prejudice.


text:
    (No. 88-CC-0315
    Wiley A. Glass, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 12, 1994.

    Dessen & Moses (Mary Lee Berreshein, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Erin O’Connell, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Jann, J.

This action was brought by Claimant pursuant to Section 8(b) of the Court of Claims Act. (705 ILCS 505/8(b).) Claimant alleges breach of a maintenance contract by the Illinois Department of Public Aid.

Claimant entered into a written contract with the Illinois Department of Public Aid on June 18, 1984. Mr. Glass was to perform janitorial and maintenance services at 2036 South Michigan Avenue, Chicago, Illinois. The term of the contract was twelve (12) months beginning July 1, 1984, and ending June 30, 1985. There was an option to renew for an additional twelve-month period beginning July 1,1985, through June 30, 1986.

The contract termination clause provided that the State could terminate the contract by providing 30-days written notice to the contractor. Any and all provisions of the contract were terminable by the State with 30-days written notice if performance by the contractor was found inadequate. The issue before us is whether the State gave adequate notice for termination of the contract due to inadequate performance by Claimants company.

Claimant, Wiley Glass, d/b/a Service Rite Cleaners entered into a contract on June 18, 1984, to provide janitorial services to the Illinois Department of Public Aid at 2036 South Michigan Avenue. Claimant testified that he began service on July 2, 1984, and continued to perform until July 17, 1984. Claimant testified, and was not rebutted by the State, that he received notification on July 17, 1984 that in accordance with paragraph 6 of the contract, the State gave written notice that the contract would be terminated as of July 22, 1984. The termination notice was given by Ronald L. Parrish, chief, Bureau of Administrative Services. Claimant testified that he then engaged an attorney who negotiated with the Department of Public Aid (the Department) on his behalf and worked out an arrangement for him to return to the premises and continue janitorial services. The record reflects Claimants acknowledgment of receipt of the termination notice and the arrangement for Claimant to be given a second chance to perform in a letter dated July 25, 1984, from Claimants attorney. An August 1, 1984, letter from Ronald Parrish to Mr. Glass was entered into evidence. In the letter, Mr. Parrish advised Claimant that the Department had agreed to provide Claimants company a second chance to demonstrate its ability to perform janitorial services at 2036 South Michigan. The letter of August 1, 1984, further stated that service was to resume on August 6,1984.

Mr. Glass further testified that his wife called the Department and stated that they would not return to the cleaning site. When further questioned under oath, Mr. Glass testified that he had made a decision not to return to the cleaning site despite the preceding agreement acknowledged in correspondence, to return to work on August 6,1984.

The testimony clearly demonstrated that Claimant, after initial notification of termination for inability to adequately perform, agreed to a reformation of the contract and subsequently chose to voluntarily terminate performance thereunder. We hereby find Respondent did not breach its contract with Claimant. This claim is hereby denied.


author: JANN, J.

text:
    (No. 85-CC-1082
    James Boldian, a minor, by his Mother & Next Friend Shelia Boldian, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 1, 1994.

    Harvey L. Walner & Assoc. (Jonathan Walner, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Jan Schaffrich, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

Claimant James Boldian, a minor born January 24, 1973, was injured when he ran into the street and was struck by a University of Illinois police car on November 26, 1982. A hearing on the matter was conducted by the Commissioner on March 2, 5, and 6, 1990. Respondents filed a brief June 23, 1993. Claimant did not file a brief. Preparation and delivery of transcripts caused a considerable delay in submission of the brief and resulting Commissioners report.

Facts

The incident occurred between 5 and 6 p.m. on November 26, 1982 in the 1300 block of Taylor Street between Ada and Throop Streets in Chicago, Illinois. Taylor Street runs east and west with one lane of traffic in each direction and parking on both sides of the street. There were sidewalks on both sides of Taylor Street. There was low-rise public housing on the north side of Taylor and vacant lots and the L & M Liquor store on the south side of the street.

On the date of the accident, Claimant was nine years and two months old. His mother sent him to the L & M Liquor store to purchase a loaf of bread for dinner. Claimant was wearing a navy blue snowsuit with a large fur-trimmed hood. Claimant had been sent to the store on other occasions. His mother had. warned him to watch for cars before crossing the street. Claimant did not use the crosswalk to cross the street.

Bobby Smith, a nine-year veteran of the University of Illinois police force, was proceeding eastbound on Taylor Street as Claimant exited the L & M Liquor store to cross Taylor Street. Smith had his headlights on as it was dark and was traveling at 15-25 miles per hour. The posted speed limit is 20 miles per hour.

Smith saw Claimant exit the store. At that time, Claimant was 15 to 20 feet from the front of the vehicle. Smith applied his brakes to slow the vehicle. Smith testified he lost sight of Claimant when he ran between two parked cars but reapplied his brakes to avoid the child as he darted into the street. Smith’s vehicle was nearly stopped when it struck Claimant in the lower right leg.

Claimant was taken to the University of Illinois Hospital where he was held for observation until November 29,1982. The discharge summary indicates there were no bruises, abrasions, hematomas or other signs of trauma. He had complained of pain in his right leg and left side. A hospital bill in the amount of $1,943.25 was introduced into evidence. The bill was paid by the Illinois Department of Public Aid. Claimant received no permanent injuries resulting from the incident.

Claimant’s witness Earl Jones gave testimony in a deposition and at the hearing. Mr. Jones witnessed the accident from directly across the street where Claimant walked into traffic. Mr. Jones stated the Respondents auto skidded and left skid marks. Mr. Jones’ testimony was rebutted by both of Respondent’s employees. He also estimated Smith’s speed at 30-40 miles per hour. However, Mr. Jones’ memory was much less clear regarding his own actions just prior to the accident.

Claimant testified he did not have a clear view of the street as he could not see over/around the parked cars before he stepped into the street. Claimant heard the Respondent s brakes before he felt impact.

Smith and his partner, Raymond Barrera, testified at hearing. Smith testified that he was on patrol duty at the time of the accident. He was aware that the area had a public housing development and a liquor store on either side of Taylor Street. He stated he saw Claimant exiting the liquor store with a bag in his hand. Smith began braking his vehicle. Claimant was running and disappeared from Smith’s view when he ran between two parked cars. Smith did not see Claimant look both ways before entering traffic and only caught sight of him again when he exited from between the cars. Smith braked hard but was unable to avoid hitting Claimant with his right front bumper. Claimant flew over the hood and got up running. Smith pursued Claimant, laid him down and put a blanket under his head while his partner called paramedics. Chicago police were also called and responded.

Mr. Barrera also testified that Claimant ran out of the store and momentarily disappeared between parked cars. Barrera warned Smith to “look out” for Claimant resulting in braking the patrol car. Mr. Barrera’s testimony was primarily evoked through refreshing his recollection of a deposition given shortly after the incident.

Law

Claimants must prove by a preponderance of the evidence that Respondents’ negligent acts proximately caused Claimant’s injuries. While it is true that persons driving vehicles within the State of Illinois have an obligation to maintain a lookout for minor children and other pedestrians, especially in areas where children are known to frequent, not every collision between an auto and a minor child should automatically impute liability to the driver. It is clear from the minor injuries sustained by Claimant that the Respondents’ vehicle was traveling at a very slow rate of speed. Claimant’s testimony indicates he did not look to ascertain whether cars were approaching or disregarded the approach of Respondents’ vehicle before proceeding into the street. Claimant chose to cross the street in contravention of traffic laws at mid-block.

He had been warned by his mother to watch for cars and had made this trip repeatedly in the past. At nine years of age, his mother felt he was able to handle this task and understand the risks involved.

We hereby find Claimant’s acts were the direct and proximate cause of his injuries. Claimant has failed to prove that Respondents have breached a duty resulting in Claimant’s injury. Claimant ran from between parked cars into traffic and made an accident unavoidable.

This claim is hereby denied.


text:
    (No. 85-CC-2367
    Protective Insurance Co., Subrogee of Richard Fusselman d/b/a Gene Fusselman, Denver L. Echternkamp & William M. Gully, Subrogors, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 16, 1994.

    Stephen M. Passen, Ltd. (David G. Susler, of counsel), for Claimant.
    Roland W. Burris, Attorney General (David Rodriguez, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Mitchell, J.

A final hearing on the above entitled claim was held on March 29, 1993 at the James Thompson Center, Chicago, Illinois. Stephen M. Passen and David G. Susler appeared on behalf of the Claimant, Protective Insurance Co. and Roland Burris, Attorney General, State of Illinois, by David Rodriguez, Assistant Attorney General, appeared on behalf of the Respondent, State of Illinois.

From the testimony introduced at the hearing, it appears that the Claimant, Protective Insurance Co., was the insurer of a certain trucking company that employed as a driver Denver L. Echternkamp. On January 23, 1984, Echternkamp testified that at about 5:30 a.m. he was driving a tractor-trailer westbound on U.S. 24 at or near mile post 4 in Brown County, Illinois. He had driven a load of dairy products from Quincy to Springfield, Illinois, delivered the load and was returning to Quincy. He left Springfield at about 1 or 2 a.m. When he reached mile post 4, he was involved in an accident which resulted in the death of Stanley Max Hulme.

He testified that it was snowing heavily and visibility was limited at the time of this accident. As Mr. Echtemkamp was driving westbound on U.S. 24 in the Mount Sterling area, he testified that out of nowhere came a pair of headlights that appeared to be in Mr. Echternkamp s lane of traffic. To avoid hitting the approaching vehicle, a small General Motors station wagon, Mr. Echternkamp stated that he eased his truck to the right. As he did so, his truck dropped off on to the shoulder, down to what turned out to be a six-inch drop-off. After the car passed, he tried to ease back onto the highway. He stated that he could feel the truck lurch against the edge of the six-inch drop-off.

He stated that when the truck went off the shoulder, he was driving about 35 or 40 miles per hour. He felt that this was a safe and reasonable speed under the weather conditions. He stated that the left side of the tractor-trailer remained on the pavement while the full right side dropped off onto the shoulder. In order to bring his vehicle safely back on to the roadway, he stated that he decelerated and applied light pressure to the brakes. He stated the right front wheels finally regained the pavement but the rear dual axle kept sliding against the ledge. When the front wheels jumped up, he stated he felt the truck start to jackknife, so he released the foot brake and pulled the hand valve down to apply brakes to the trailer hoping it would straighten it out. However, he stated that the truck jackknifed, spinning in a counter-clockwise direction. It came to rest with the trailer blocking both the east and westbound lanes. At this time Stanley Max Hulme was driving eastbound on U.S. 24, was unable to stop and ran into the passenger side of the trailer. As a result of the impact, the truck slid around and came to rest on the south shoulder facing south. Mr. Hulme died as a result of the injuries he received in the collision.

After the accident, Mr. Echtemkamp stated he got out of his truck and observed a large, lengthy drop-off along the northern shoulder where his tmck had dropped off. He stated there were no warning signs of any kind along the northern shoulder that would indicate to Mr. Echternkamp, or to any driver on the roadway, that there was a drop-off in that area. Mr. Echtemkamp stated he was not aware of any drop-off in that area before this accident. He also stated there is no overhead lighting on that stretch of highway.

The Illinois State Police investigated the accident. Trooper Meyer and trooper Groesch, an accident reconstruction specialist certified by the State of Illinois, measured the drop-off from the highway pavement down to the shoulder to be six inches deep. This six-inch drop-off stretched for approximately one mile both east and west of the accident site. According to witnesses, the drop-off had existed for at least three years and probably as long as ten years.

The experts for both the Claimant and the Respondent believe that the six-inch drop-off resulted in an unsafe condition. Furthermore, Claimants expert along with that of the Illinois State Police reconstruction expert believe that the drop-off was a contributing factor in the accident.

The first issue the Court must deal with is whether the States failure to maintain the shoulder allowing a six-inch drop-off was a proximate cause of the accident which resulted in Stanley Max Hulme's death. We believe the cases of Peterson v. State (1984), 37 Ill. Ct. Cl. 104, and Seifert v. State (1989), 42 Ill. Ct. Cl. 8, as cited by the Claimant are applicable. The Court believes here as in Seifert v. State, supra that the State caused a dangerous condition to exist by neglecting to maintain the shoulders after having had actual or constructive notice of the defects.

Therefore, it is the Courts ruling that the State was negligent in this case and contributed to the accident.

The second issue for the Court to deal with is the amount of damages to be awarded. The Claimant on behalf of Mr. Echternkamp paid the decedent’s estate $300,000 in full settlement of their claim. The doctrine of comparative negligence applies in this case and the Court must now determine the percentage of the $300,000 which should be attributed to the State. Having reviewed all of the transcript and exhibits placed in evidence, it is the Court’s belief that Mr. Echternkamp was negligent in the operation of the truck; however, the Court believes the State to be 3373% negligent in this case.

Therefore, the Court awards $100,000 to the Claimant, Protective Insurance Company, Subrogee of Richard Fusselman, d/b/a Gene Fusselman, Denver L. Echternkamp and William M. Gully, Subrogors.


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    (No. 86-CC-0821
    Carmen J. Olivo, Administrator of the Estate of Jose Luiz Olivo, Claimant, v. The State of Illinois and/or its Department of Mental Health and Developmental Disabilities, Respondents.

      Opinion filed October 19, 1993.

    Reed, Scoby, & Trainor, Ltd. (Richard Trainor, of counsel), for Claimant.
    Roland W. Burris, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Mitchell, J.

The Claimant, Carmen J. Olivo, seeks compensation for the death of her son, Jose Luiz Olivo, on November 1, 1983, at the Shapiro Developmental Center located in Kankakee, Illinois. Shapiro Developmental Center is operated by the Illinois Department of Mental Health and Developmental Disabilities. There are two issues to be addressed in this matter. First, whether the State, through its agents, over-medicated the decedent and therefore deviated from the standard of care. Secondly, whether the actions of the Shapiro staff personnel in restraining the decedent violated the standard of care.

Jose Luiz Olivo was 33 years old at the time of his death. He had been at the Shapiro Developmental Center since September 11, 1973. Jose was diagnosed as moderately mentally retarded with an I.Q. of 40. He also had a history of psychotic episodes which included aggressive behavior. While at Shapiro, Jose received the drug Thorazine. Thorazine is used to treat people who have psychosis. Psychosis is a psychiatric condition in which a person s ability to perceive reality has become defective. Other symptoms include agitation and anxiety.

According to the Physicians Desk Reference (PDR), which lists the manufacturers recommendations, 500 mg. of Thorazine is generally a sufficient daily dose to control acutely agitated or disturbed patients. While gradual increases to 2,000 mg. a day or more may be necessary, there is little therapeutic gain to be achieved by exceeding 1,000 mg. a day for an extended period. Thorazine is known to have side effects on the central nervous system. These side effects include neuromuscular or extra-pyramidal reactions. These extra-pyramidal reactions include agitation or motor restlessness; dystonia, which is a muscle spasm, involving the neck muscles and swallowing mechanism; as well as Parkinson-like symptoms.

At the time of his death, Jose was receiving approximately 1,000 milligrams of Thorazine daily. He also was receiving a drug called Artane. Artane is prescribed to counter Parkinson-like symptoms and other reactions to the Thorazine.

On November 1, 1983, Jose Olivo was observed by Robert Dean, his group leader, as being agitated and upset. Mr. Dean also noticed that Jose was more hyper than usual both before and during breakfast. After breakfast, Mr. Dean instructed Jose to clean his room. Jose became upset with this and began slamming doors and ran into another group s area. Mr. Dean, along with another technician, followed Jose into the other area. The two men took Jose by the arms and tried to get him to sit down. When this was not successful, it was necessary to put Jose on the ground.

Jose was being physically restrained on the ground by technicians Robert Dean, Mark Larimer and Doug Jones. Jose was on his back at first and then it became necessary to put him on his stomach. At some point during the struggle, there were four technicians present, one holding each of Joses arms and legs. This struggle went on for 10 to 20 minutes and according to Novella Morris, another technician, Jose was stating that he wanted to be held still.

After approximately 20 minutes, Jose stopped struggling. He was not moving at all. William DeBlouwe, another technician, tried to tickle Jose to get a response. There was testimony to the effect that on previous occasions Jose would evidently close his eyes and pretend he was sleeping. The staff would then tickle him in order to arouse him. Apparently, when the tickling “didn’t work,” Mr. DeBlouwe then performed the Heimlich maneuver on Jose, causing him to vomit. Novella Morris then tried to perform CPR on Jose, without success.

Paramedics from the Kankakee Fire Department arrived on the scene at about 8:30 a.m. The paramedics were not successful in reviving Jose and he was removed to the hospital. The coroner found the immediate cause of death to be asphyxia due to aspiration of vomit.

At the hearing before this Court, both sides brought in medical experts. The Claimant brought in Dr. Nelson Borelli, a board certified psychiatrist, to testify on her behalf.

Dr. Borelli testified that he felt Jose Olivo was over-medicated while he was a resident of Shapiro Developmental Center. At the time of his death, Jose was receiving 1,000 mg. of Thorazine along with a dose of Artane. According to Dr. Borelli, Jose was exhibiting the symptoms of overdosage of Thorazine and that is why he was given the drug Artane. Artane is used to control some of the adverse reactions to the Thorazine.

Jose Olivo died from asphyxia due to aspiration. Dr. Borelli is of the opinion that Jose Olivo’s death was caused by the reactions to Thorazine and the way he was restrained by Shapiro personnel. Jose was very agitated that morning and it became necessary for the employees to physically restrain him. During the struggle to restrain Jose, he vomited and subsequently choked on that vomit.

Based on his medical opinion, Dr. Borelli felt that Jose’s agitation, as well as his impaired gag reflex, was due to being given excessive doses of Thorazine over a prolonged period of time. The doctor also believed that if the Shapiro staff would have been trained in the proper way to restrain a patient, Jose’s death may have been avoided. The staff, by having Joses arms crossed against his chest while laying on his stomach, caused Jose to vomit. There also was a staff member on Joses back as they attempted to hold Jose down. Dr. Borelli felt the staff members should have checked Jose more closely during the struggle for possible signs of distress. This was not done and in Dr. Borellis opinion, this negligence by the Shapiro staff also contributed to the death of Jose Olivo.

The State relied on Dr. Daniel Luchins, also a board certified psychiatrist, as their expert. Dr. Luchins felt that, in his opinion, the dosage of Thorazine given to Jose Olivo was not excessive and would not have significantly suppressed his gag reflex. Based on the medical records reviewed by Dr. Luchins, he is of the opinion that Jose was not suffering any serious side effects of the medication given to him while at Shapiro Developmental Center. The doctor also testified that in his experience, he has never seen a patient that had a suppression of the gag reflex due to Thorazine. Dr. Luchins also testified that according to the latest scientific literature there is no scientific evidence that Thorazine, in its standard clinical doses, interferes with the gag reflex.

Dr. Luchins stated that in his opinion the best way to determine the effective dosage of the drug would be to test the blood level. According to the medical records, Jose s blood level of Thorazine was 49. The therapeutic range given is between 30 and 300. Dr. Luchins testified that Jose s therapeutic range was low with low potential for side effects.

Dr. Luchins also testified that he did not feel the low white blood count (4500) for Jose was of major concern. He stated that a normal range was 6,000 to 10,000 white blood cells and it was not until the count dropped below 4,000 that the medication should be stopped. Dr. Luchins was of the opinion that a standard side effect of antipsychotic drugs is a lower white blood cell count. Dr. Luchins stated that since Joses white blood cell counts remained constant over a couple of years, it was not necessary to test Joses blood more extensively.

Dr. Luchins testified he did not feel the Shapiro staff was negligent in the way they restrained Jose. In his opinion, there is no perfect way to restrain someone when they are attacking other people. When a person is struggling, it is hard to put them in restraints. When it is necessary to restrain someone, the staff is trained in certain ways to control the arms and legs. It is Dr. Luchins’ opinion that something happened while Jose was being restrained which led to his death, but it was not the negligent actions of the employees that caused Jose’s demise.

In order for a claimant to prevail, she must show by a preponderance of the evidence that the State owed the claimant a duty, this duty was breached, that the claimant was free of contributory negligence and that the State’s breach was the proximate cause of death. Mazurek v. State (1975), 30 Ill. Ct. Cl. 247, 249.

In this case before us, the decedent, Jose Olivo, was receiving approximatély 1,000 mg. of Thorazine on a daily basis for 2Vz years prior to his death. Both Dr. Borelli and Dr. Luchins testified that the level of medication exceeded the manufacturer’s recommendation as listed in the Physician’s Desk Reference. Jose was also receiving a drug called Altane. Artane is prescribed to counter Parkinson-like symptoms which are side effects of Thorazine.

Jose Olivo was administered doses of drugs which exceeded the manufacturer’s guidelines. The coroner found the immediate cause of death to be asphyxia due to aspiration of vomit. Suppression of the gag reflex is a side effect of being over-medicated with Thorazine. A dosage of drugs which exceeds the manufacturers guidelines creates prima facie evidence of negligence. The State is responsible for the negligent actions of its doctors who treated the decedent. Cyperstein v. State (1981), 35 Ill. Ct. Cl. 22, 25.

The Claimant argues that the Shapiro staff was negligent in their attempt to restrain Jose and this also contributed to his death. The staff at Shapiro or at any other center has a responsibility to maintain order and protect all of the patients. When someone is in an uncontrollable state as Jose was, the staff members must do what they can to maintain order. Although the staff received some training on how to restrain a patient, it is not always possible to use the proper textbook techniques. It is not clear by the preponderance of the evidence that the actions of the Shapiro staff constituted negligence in their attempt to restrain Jose and maintain order at the center.

The decedent’s family has also made a claim for pecuniary losses and loss of society sustained by reason of the death of Jose Olivo. The testimony of Carmen Olivo and the rest of her family show the family did maintain a relationship with Jose despite the fact he was hospitalized. Where there are parents surviving a deceased child, there is a presumption of substantial loss even when the decedent and the lineal kinsmen are adults.

Although perhaps not crystal clear, the preponderance of the evidence presented suggests that the State did indeed breach its duty in the care of Jose Olivo by exceeding the recommended dosages of his medication and by having done so for a lengthy period of time. Jose Olivo was free from contributory negligence in the fact he only took the medication he was told to take. Therefore, based on the evidence, the Claimant, Carmen J. Olivo, Administrator of the Estate of Jose Luiz Olivo, is awarded the sum of $50,000 for the estate. Further, the Claimant, Carmen J. Olivo, is awarded the sum of $50,000, Miguel Olivo is awarded the sum of $30,000, Edwin Olivo is awarded the sum of $20,000 and Luz Olivo is awarded the sum of $20,000.


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    (No. 86-CC-1055
    Kenneth Van Horn, Claimant, v. The State of Illinois, Department of Transportation, Respondent.

      Opinion filed August 10, 1993.

    Jack R. Davis (David Corbett, of counsel), for Claimant.
    Roland W. Burris, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Mitchell, J.

This matter came on to be heard for trial on or about March, 1991. After hearing, both parties were afforded an opportunity to submit briefs. However, only the Claimant submitted a brief.

At trial, the evidence was the following:

On June 23, 1984, at 8 p.m., Claimant was going West on Route 62 between Palatine Road and Route 59. Claimant was driving a motorcycle. The road was wet and visibility was poor. At this time, Claimant was traveling at 30 miles per hour. At this point, Claimant saw a car come into his lane traveling in the opposite direction, i.e., heading directly towards him. Claimant attempted to swerve to the right, but still collided with the car. Claimant lost consciousness and when he regained his consciousness, he was experiencing severe pain in his legs. It was subsequently determined that he suffered multiple fractures of both legs which caused one of his legs to eventually be shorter than the other; pain in his legs for the rest of his life along with stiffness. Claimant was out of work for approximately 28 months, causing him to lose $50,000 in wages. The State and Claimant stipulated that the medical bills from the accident of June 23, 1984, totalled $92,593.32. Claimants other witness was Matthew Sielski. He testified as an expert witness for Claimant. Mr. Sielski is a professional traffic engineer. After qualifying Mr. Sielski as an expert, Claimant asked Mr, Sielski if he was familiar with Illinois State Route 62 between Palatine Road and State Route 59. Mr. Sielski stated that he was. Mr. Sielski stated that based upon a reasonable degree of scientific certainty, Illinois State Route 62 between State Route 59 and Palatine Road did not meet the standards in the profession of traffic engineers in the following ways: first, the shoulder width should be at least eight feet and the slope of the shoulder should be a one-foot drop every four feet, and second, the passing area at that point of the road is only 700 feet, which is too short to allow safe passing. The current configuration of the road is that the shoulder is five to five and one-half feet wide with a drop-off of one foot for every two feet. In terms of the passing lane, it is currently 700 feet, but anything less than 850 to 900 feet is unsafe.

After the testimony of his expert witness, Claimant called no other witnesses. The Claimant never produced any evidence which indicated that the motorist with whom Claimant collided was attempting to pass and that as a result of the defective passing distance, the motorist collided with Claimant. Further, Claimant never produced any evidence that the alleged defective shoulder had anything to do with the accident.

The Respondent, State of Illinois, produced evidence from Lariy Sorenson, an employee of the Illinois Department of Transportation for 30 years. Claimant stipulated that Mr. Sorenson was an expert and in particular in the area of road design engineering. Mr. Sorenson currently is a plan preparation engineer. His duties include supervising 20 to 30 other engineers and technicians designing various highways in the State of Illinois. Mr. Sorenson stated that Route 62 between Palatine Road and Route 59 is safe. His rationale for that statement was that the highway is generally straight with no horizontal or vertical curves. The shoulder is adequate for a vehicle to pull off with only shallow ditches. Finally, the pavement width meets the current criteria for pavement width. Mr. Sorenson stated that any deviation between the subject stretch of highway and current standards is explained by the fact that the highway, when it was built, was built to the then-prevailing standards. Unless an accident occurred at the location which indicated that it was unsafe, the road would not be reconstructed. The accident information regarding this stretch of highway indicated that in a three-year period there were two accidents. The two accidents being the accident which is the subject of this lawsuit and a subsequent accident. Finally, Mr. Sorenson stated that there is no requirement to correct a highway shoulder which may be substandard by current standards.

The States next witness was James Evers, who has worked for the Illinois Department of Transportation for approximately 37 years. Claimant stipulated that Mr. Evers is an expert. Mr. Evers is currently the operations traffic engineer for the arterial section. In his area, they devise the signs and markings for the highways and place the signs and markings on the highway. He stated that Route 62 between Palatine Road and Illinois Route 59 is properly marked according to the standards mandated by the law in Illinois. Finally, Mr. Evers testified that passing safely is the responsibility of the driver who is conducting the passing maneuver.

Claimant submitted a brief in support of his position. The State, in spite of the fact that it indicated on several occasions that it would submit a brief, has not done so. The State indicated that because Assistant Attorney General Buckley, who tried this case, left the office, someone else would submit a brief. However, no brief was ever submitted.

Claimant must prove by a preponderance of the evidence that the State was negligent, that the States negligence was the proximate cause of the injuries and that the Claimant exercised due care for his or her own safety. Hoekstra v. State (1985), 38 Ill. Ct. Cl. 156, 159-160; Hupka v. State (1982), 35 Ill. Ct. Cl. 581. Claimant has not met his burden in this case.

The fundamental problem with Claimants proof is that he has failed to demonstrate, even assuming there was negligence by the State in the construction or marking of the highway, that negligence was the proximate cause of his injuries. Claimant never produced any evidence that the car with which he collided was in his lane because it was passing other vehicles. This was a necessary factual link to establish that the passing zone had anything to do with this accident. In the absence of the evidence of the other drivers actions, it is equally likely that the other driver was asleep at the wheel or was driving recklessly as it is that the driver was passing. The State in its opening statement put Claimant on notice that it was the States position that the proximate cause of the injury was the unsafe operation of the other vehicle which struck Claimant and not any negligence by the State.

Claimant argues in his brief that the State failed to exercise reasonable care in the design, construction and maintenance of State Route 62 in that the passing area was too short and the shoulder was substandard. The evidence demonstrated no reasonable connection between the alleged negligent condition and the accident. There was no evidence that the alleged substandard shoulder had anything to do with the accident. The sole cause of the accident, based upon the evidence adduced at the trial, is the action of the car which collided with Claimant.

It is hereby ordered that the Claimant has failed to demonstrate any connection between any alleged negligent action by the State and the accident, and the claim is hereby denied.

       As indicated in the statement of facts, the State submitted evidence which indicated that the condition of the road was not unsafe.