text:
    (No. 83-CC-1933
    Lanny Russell, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 8, 1990.

    Strodel, Kingery & Durree & Associates (Edward R. Durree, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (James C. Majors, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

On July 23,1982, Claimant was 14 years old. On that day, he was a resident at the Department of Corrections, St. Charles facility. Claimant was there for the purposes of a court-ordered evaluation. He had been to the St. Charles facility swimming pool approximately 10 times prior to July 23,1982. Claimant testified that he had not received any instructions concerning the use of the pool at any time prior to the incident in question, other than the admonishment by a supervisor that there was to be no running.

Michael LaFever testified that prior to and on the date of the incident, he was a resident of the St. Charles facility. He testified he would have been at the swimming pool approximately 25 times prior to the incident involving the Claimant. On the date of the incident, a Mr. Anderson, one of only two supervisors in the pool area, instructed the residents that there was to be no running or jumping in the pool area. That was the only instruction given; no instructions were ever given to residents about there being a limited diving area or only being permitted to dive at the deep end of the pool or that there was to be no swimming and diving in the same area. LaFever further testified that on July 23, 1982, he observed people just jumping into the pool from all over and, further, that he saw people diving into the deep end of the swimming pool from the side of the pool at the same time that people were diving from the end of the pool. No supervisors ever told any of the residents that they should be more careful while they were in the deep end of the pool.

LaFever further testified that on occasions prior to July 23, 1982, he had observed residents diving into the pool using the frame of an old diving board (the board had previously been removed). Further, he testified that on July 23, 1982, he saw residents diving from that frame, prior to Claimant’s injury, and that the supervisor in the area was never heard to say that diving in that fashion was prohibited.

Claimant testified that prior to July 23,1982, he had, while in the swimming pool area at the St. Charles facility, used the old diving board frame to dive into the pool. At no time prior to that date did he hear any supervisors tell any of the residents that they should not be diving off the old diving board frame.

Willie L. Mitchell was called to testify. He was presently employed by the Department of Corrections as a supervisor and was so employed on July 23, 1982. On the date in question, Mr. Mitchell was responsible for supervising the activities which took place in the swimming pool, as well as the gymnasium area. He testified that at the time of Claimant’s injury, the only rules that were enunciated to the residents were that there was to be no running, dunking or horseplay. He testified that at no time prior to the injuries suffered by Claimant were the residents told or warned about diving where there was swimming going on; further, the residents were never told that diving was prohibited in the deep end. He further testified that the residents were never, prior to July 23,1982, given a “check out” on their swimming skills or safety knowledge prior to their first being permitted to use the pool.

Mitchell further testified that prior to the time of Claimant’s injury, he had had no specific or additional training in regard to pool supervision or safety. Mitchell was not a certified lifesaver from the Red Cross at the time of the occurrence in question, nor was Anderson, the only other supervisor present at this point, a lifeguard or certified in any fashion from the Red Cross for lifesaving.

Mitchell testified that on July 23,1982, there was no diving board in the pool area, but the old frame was still present and had not been roped off in any fashion. The only rules given to the Claimant and the other residents on the date of the occurrence would have been no running, horseplay or dunking. Otherwise, the residents, at that time, were allowed to swim at will. There were no other rules given to the residents orally at that time, and at the time of the occurrence at issue, the residents were allowed to swim wherever they wished, at will; further, the residents were permitted to dive into the pool anywhere they wished.

At the time of the occurrence in question, there were anywhere from 30 to 40 residents in the pool. LaFever testified that the only instructions that he had ever heard at any time prior to the incident involving Lanny Russell were that there was to be no running or jumping in the pool area. LaFever further testified that on the date of the incident in question, he had seen people diving into the deep end, prior to Claimant’s injury, and that some of the residents were diving from the side of the deep end while people were also diving from the actual end of the pool; he never heard Anderson admonish or advise people that they should not be doing that. LaFever also testified that in his experience, none of the supervisors ever administered any test to determine swimming ability of the people who got into the pool, nor did he hear them question any of the residents concerning their knowledge about diving safety.

Mitchell testified that he and Anderson were the only two supervisors in the pool area on July 23, 1982. Mitchell knew Anderson was there, but did not know what he was doing at the time the Claimant suffered his injury.

The Claimant testified that on July 23,1982, he went into the pool area with the other residents for a scheduled recreational period and swam for awhile, alternating swimming and resting. Another resident asked him if he wanted to race and they got out of the pool and went to the deep end of the pool by the diving platform. They stood to either side of the diving platform, and as he prepared to get into the water, the Claimant testified he placed his left foot on the frame of the old diving board, the diving platform, and dived into the water, whereupon he collided with another resident. The Claimant testified that he now believes that the resident whom he collided with was coming up out of the water as he was going in.

Michael LaFever testified that he observed the Claimant jump off the diving board frame and, while in the air, collide with another student who ran and dived into the pool from the left side of the pool. After the collision, he observed the Claimant go to the bottom of the pool. This took place at approximately 4:00 p.m. on July 23,1982.

Claimant testified that after the collision, he felt a tingling sensation and then realized he had no motor control. He was in the water, was pulled out and then lost consciousness.

LaFever testified he observed the Claimant floating near the bottom and dived down to get the Claimant and pulled him to the top. He testified that Anderson told him to get out of the water, but he ignored Anderson and went back down for the Claimant. He stated Anderson gave him a “write-up” for not getting out of the pool when Anderson told him to do so.

Claimant was initially taken to Geneva Community Hospital where an X-ray disclosed a dislocation of a cervical vertebra at C-3, C-4 level. Claimant had suffered a spinal cord injury (central cord syndrome) with a dislocation of C-3 and C-4. This resulted in quadriparesis.

Claimant was transferred to the Mercy Center for Health Care Services in Aurora, Illinois, after initial emergency room treatment in Geneva. He was treated by Dr. J. B. Mazur. The Claimant remained hospitalized at the Mercy Center from July 23, 1982, through September 1, 1982. While there, he was first placed in Gardner-Wells Tongs in an attempt to reduce the fracture without surgical intervention. Subsequently, on July 28, 1982, he underwent an anterior cervical interbody fusion with disectomy and bone grant from right iliac crest.

A subsequent surgery to allow drainage of the right hip region was necessitated on August 10, 1982, by reason of an infection in the iliac crest surgical site.

Claimant was, following surgery, placed on a physical therapy program. Initially, this process was done at the Mercy Center Hospital in Aurora. Following release from that hospital on September 1, 1982, he was seen on an outpatient basis at the Institute of Physical Medicine and Rehabilitation in Peoria, Illinois.

Claimant testified that he now experiences trouble or pain lying on his side while sleeping, as well as muscle spasms in, primarily, his right arm. He also notices that his right arm has a “falling asleep” sensation. He experiences significant pain in his neck region when he now engages in normal work-type activities (ie., doing mechanical work on automobiles).

According to Dr. Thomas Szymke, director of the Institute of Physical Medicine and Rehabilitation, the Claimant is probably displaying symptomology, at the present time, of a pinched nerve or an arthritic process at the fracture site, with pain referred into his arm. A worst-case scenario is that there is actual encroachment or narrowing of the spinal canal where the spinal cord transverses the fracture site. The medical problems complained of by Claimant are of a permanent nature according to the evidence.

In this action based on negligence, Claimant had the burden of proving by a preponderance of the evidence that the State was negligent and that the State’s negligence was a proximate cause of Claimant’s injury. Also, as with any tort claim, Claimant must establish a prima facie showing of a duty by the Respondent, breach of Respondent’s duty proximately causing Claimant’s injury, and damages as a result thereof. We find that Claimant has met his burden of proof.

The common law doctrine of contributory negligence was abolished in Illinois by the case of Alvis o. Ribar (1981), 85 Ill. 2d 1. A plaintiff need no longer prove freedom from contributory negligence, rather, a defendant carries the burden of pleading and proving contributory fault on the part of a plaintiff/claimant.

° ° As the appellate court correctly held, both logic and fairness dictate that the defendant, who stands to benefit from a showing that the plaintiff was negligent, should have the burden of persuading the trier of fact on that issue. (Citation omitted.)
It would be anomalous to require that the defendant allege the plaintiff’s negligence but to place the burden of proof on that issue on the plaintiff.” Casey v. Baseden, 111 Ill. 2d 341, 345-47.

Thus, in the cause herein, the Claimant did not need to prove freedom from any contributory negligence to establish a prima facie showing. The Respondent did not meet its burden in the case at bar. Here the evidence establishes Respondent’s negligence and that the negligence was the cause of Claimant’s permanent injury.

The evidence establishes that Claimant was 14 years old at the time of this occurrence and that on July 23, 1982, he participated in a free swim recreational period at the St. Charles correctional facility. At that free swim, Respondent had two employees to supervise 30 to 40 boys in the pool area. One of the employees, Willie Mitchell, testified in this case.

Mitchell’s testimony is significant. He establishes that neither he nor the other supervisor, Anderson, were trained in life safety or aquatic safety techniques at the time of this occurrence. Mitchell testified that the only rules given to the residents were that there should be no running, dunking or horseplay (and that was corroborated by the testimony of both Claimant and Michael LaFever) in the pool area. The students were allowed to swim at will and there were no admonitions given to the residents against diving and swimming in the same areas. By Mitchell’s own testimony, the procedure followed now is quite different. Now residents are warned against diving where there are swimmers and swimmers are first “checked out” on their swimming safety knowledge.

Claimant has affirmatively shown to this Court the necessary conduct regarding recreational pool safety and operation. Respondent failed to comply with required safety procedures.

Claimant presented Alan Caskey, Ph.D., as one of two witnesses on the question of the duty of the Respondent. Dr. Caskey is well credentialed in his field; part of his background included having been stationed at the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, as the recreation and athletic director. Dr. Caskey conducted an on-site examination of the pool at the St. Charles youth facility prior to giving testimony in this case. Dr. Caskey, familiar with the basic standards applicable to the use and operation of a recreational pool of the type in service on July 23, 1982, at the St. Charles correctional facility, stated that: “When you do diving, it must be separated from swimming activities, it must be supervised by a lifeguard, and only one person is allowed to dive off of the apparatus, platform or deck area at a time.”

After being given a hypothetical question incorporating all facts which were subsequently placed into evidence, Dr. Caskey testified that the facility in question was operated in an unsafe manner.

“Q. What specifically would be your opinion was unsafe in the circumstances as described to you?
A. One, because of the depth no diving is to be allowed. Two, when diving is allowed it needs to be supervised by a lifeguard. The lifeguard would only allow one person to dive at a time into the diving area, would make sure that the area is clear before the second person is allowed to dive.
The type of stanchion or the diving board is not a proper diving platform. The amount of instruction and training given to the individuals in that type of a setting is inappropriate.”

Dr. Caskey also testified that the unsafe conditions he described were the proximate cause of Claimant’s injury. Dr. Caskey indicated that these failures: the lack of trained supervisory personnel, the lack of initial evaluation/training of the residents, the allowance of random diving where swimming was going on, as well as the use of the old diving platform, all combined to cause Claimant’s injury. Of significance, as noted by Caskey:

“Q. Does random diving in a swimming area increase the risk of physical harm?
A. When an individual dives into an area that could contain other individuals the probability of striking an individual either above, at or below the water surface is greatly increased.
Q. Does your opinion incorporate any factors relating to the use of the— excuse me — the combined use of a pool for diving and swimming?
A. Well, all of the regulations and guidelines basically separate diving from swimming areas.
Q. And why is that?
A. Because of the historical amount of accidents and injuries that have been incurred when people have collided with or divers have collided with swimmers in a random diving in a swimming area.”

Claimant also called William Sissel to testify. Sissel has had a lifetime of experience in the management and operation of recreational swimming pools. Sissel clearly stated that it was the obligation of an operation such as Respondent’s of this type of recreational pool to prohibit combined swimming and diving in the same area. He also believed that the pool in question, at the time of Claimant’s injury, was inappropriately supervised and that basic precautions such as warnings about swimming in a diving area and no diving being permitted off the side of the pool, were not given.

“The American Red Cross, which I base most of my working knowledge of the safety aspect of running a pool, clearly states that no one should be allowed to swim in a diving area and only diving should occur in this area. And after the dive then the individual should have a proper exit so as not to cross or impede someone else that may be entering the pool.
8 8 8 I believe through previous managing, previous classes and standards set forth to me, that the pool was improperly supervised that day at best; the main reason for the lack of authorized certified personnel. I don’t believe anyone had a certified water safety instructor’s card or anyone was certified to be a lifeguard.
I think precautions should have been taken. 8 8 8 To read or to instruct the participants on the proper use of a pool. 8 8 8 In this case, no diving off the side of the pool, no swimming in the diving area. I think a test probably should have been given to ensure the swimming ability of those that are going to use the facility.”

It was Sissel’s opinion that the pool at the St. Charles facility on July 23,1982, was being operated in a fashion that did not meet acceptable standards and that those failures, those breaches of the Respondent’s duty, were a proximate cause of Claimant’s injury.

Both Caskey and Sissel agree that the old diving frame was an unsafe piece of equipment that should not have been available for use by the residents. As Sissel noted:

“Q. And what in your opinion, based upon reasonable standards that would govern the operators of such a pool, should be done with that type of piece of equipment?
A. Ideally should have been removed. It becomes what we would classify in physical education as an attractive nuisance.
Q. Explain that, please.
A. Something that is in itself inviting; something that kids 8 8 8 children would climb on, would try to use. And at best, instructions should have been given to these students to stay clear of this.
It would have been more appropriate to rope it off if it couldn’t be removed, to mark it in such a fashion and to explain to the participants that this was indeed a broken piece of equipment that, at best, was unsafe.”

The Claimant’s evidence on the question of Respondent’s negligence and that negligence being a cause or causing, in fact, Claimant’s injury is, essentially, unrefuted. There is no testimony or evidence in the record to contradict the evidence put before this Court by Alan Caskey and William Sissel. Furthermore, the testimony of the occurrence by witnesses clearly establishes the Respondent’s failure to conduct the pool operations within the parameters of the minimal standards of care that would govern the operation of like or similar pools in 1982. Respondent’s own pool supervisor established, against Respondent’s interest, Respondent’s failure to do those things which a reasonable prudent pool operator would do under like and similar circumstances.

The evidence concerning the injury to the Claimant is also unrefuted. As previously noted, Claimant suffered a dislocation of his cervical vertebra with an attendant spinal cord injury (a central cord syndrome). This necessitated, initially, use of Gardner-Wells Tongs on July 23, 1982, in an effort to reduce the fracture without requiring surgery. Subsequently, on July 28, 1982, an anterior cervical interbody fusion of C3-C4 with disectomy and bone graft from the right iliac crest was performed. Claimant underwent subsequent incision and drainage of the right iliac crest hip region for infection that developed, post-surgically. This was done on August 10,1982.

Claimant was kept in the Mercy Center Hospital until September 1,1982. During a great deal of that time following the surgery he was involved in an intensive physical therapy program. He was subsequently followed on an out-patient basis at the Institute of Physical Medicine and Rehabilitation in Peoria, Illinois, after his discharge from the Aurora hospital.

It is evident that Claimant suffered a great deal of pain and anguish during the period of time from his initial injury until his release from the Mercy Center Hospital. Initially suffering from quadriparesis, he subsequently gained the use of his limbs after undergoing intense physical therapy. The physical therapy records clearly reflect the severity of Claimant’s discomfort during this period of time. As previously noted, Claimant underwent a subsequent surgery to reduce infection at the right iliac crest donor site: that this was extremely painful is also clearly reflected in the records of Claimant’s hospitalization.

The Claimant continued to improve and, at the time of trial, indicated he had sporadic pain in his neck with normal activity, as well as periodic episodes of spasm or tingling in his right arm region.

Dr. Szymke, who testified at trial, is the director of the Institute of Physical Medicine and Rehabilitation in Peoria, Illinois. He has stated that Claimant’s current complaints are compatible with the type of injury and subsequent surgical procedure that Claimant suffered through. He further testified that Claimant’s current problems are indicative of, at least, long term permanent arthritic involvement at the fracture site, if not actual encroachment of the spinal canal itself. The latter would necessitate eventual surgical treatment.

At the time of the occurrence in question, the Claimant was 14 years old. As noted hereinabove, Respondent has the burden of proving any contributory fault on the part of the Claimant. Respondent has failed to do that entirely.

The law in the State of Illinois is clear: a minor is not held to the same standard of conduct as an adult. In terms of ordinary care, a minor’s conduct is examined by answering whether he comports himself with the degree of care which a reasonably careful minor of the age, mental capacity and experience of the minor would use under circumstances similar to those shown by the evidence. See Illinois Pattern Jury Instructions, Civil, No. 10.05; King v. Casaad, 122 Ill. App. 3d 566.

There has been no affirmative showing on behalf of the Respondent that there was any contributory fault on the part of the Claimant; conversely, there has been an affirmative showing, by Claimant’s evidence, that there was no contributory fault on his part at the time of his injury.

Claimant’s injuries were severe. The surgical procedures necessitated to correct his injury have resulted in a fusion of the cervical vertebra at the site of the fracture along with excision of a portion of the intervertebral disk at that location. Claimant bears not only the physical scars of that procedure, but the mental scars as well. He will never be free from the residuals of the injury that he suffered as a result of Respondent’s negligence.

The Claimant does not seek recovery of any medical bills in this action. This action was brought for the pain, suffering and permanent injury to Claimant. The Respondent should not be entitled to set-offs for medical bills. Even if the Respondent were to receive set-offs for medical services to Claimant, Respondent failed to prove that any of Claimant’s medical bills had been paid by the State. The record is bereft of any such evidence of such a payment by the Respondent.

Claimant has met his burden of proof. Respondent has not. The preponderance of the evidence in this case clearly favors the Claimant. Respondent’s negligence resulted in Claimant’s injury.

It is therefore ordered, adjudged and decreed that the Claimant be awarded the sum of fifty thousand dollars ($50,000.00) in full settlement of this claim.


source: Caselaw Access Project

author: Patchett, J.

license: Public Domain

text:
    (Nos. 83-CC-2353, 83-CC-2354, 83-CC-2355 cons.
    Capitol Claim Service, Inc., as Assignee or Agent for S. B. Rawls Mortuary et al., Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 25, 1988.

    Samuel J. Cahnman, for Claimant.
    James Radar, for Respondent.
   Patchett, J.

These three consolidated causes are before the Court on Respondent’s motion to dismiss, filed in April 1986. Due notice having been given, and the Court, being fully advised, finds as follows:

The three actions present common issues of law and fact, relating to vendor-payment claims, filed pursuant to section 11 — 13 of the Public Aid Code (Ill. Rev. Stat., ch. 23, par. 11 — 13), by Capitol Claims Service, Inc., as assignee of accounts-receivable of certain funeral home and cemetery vendors. Together, these actions present 25 accounts, each for funeral or burial services (and related goods) furnished in behalf of persons who, at the time of their deaths, were public aid recipients. The Illinois Department of Public Aid (IDPA), in its departmental report filed herein pursuant to sections 790.100 and 790.140 of the rules of this Court (74 Ill. Adm. Code 790.100, 790.140) denies all payment liability with respect to these 25 accounts.

The Public Aid Code includes certain provisions, e.g., sections 3 — 8, 5 — 12, 6 — 6 and 7 — 5, relating to Respondent’s, and IDPA’s, obligation to provide funerals, burial space and interment for deceased IDPA recipients. (Ill. Rev. Stat. 1979, ch. 23, pars. 3 — 8, 5 — 12, 6 — 6, 7 — 5.) Section 5 — 12 is an example of such provisions:

“Funeral and Burial. Upon the death of a recipient * * *, if his estate is insufficient to pay his funeral and burial expenses and if no other resources, including assistance from legally responsible relatives, are available for such purposes, there shall be paid, in accordance with the standards, rules and regulations of the Illinois Department, such reasonable amounts as may be necessary to meet costs of the funeral, burial space, and cemetery charges, or to reimburse any person not financially responsible for the deceased who have voluntarily made expenditures for such costs.”

In its report, IDPA emphasizes that Respondent’s payment obligations are contingent, in each instance, upon the vendor’s complying with the Department’s “standards, rules and regulations” and the other conditions referred to in the statutes. This opinion addresses the merits of these vendors’ 25 accounts, and the extent of the vendors’ compliance with such statutory and regulatory requirements. In considering these accounts, we refer to them by use of the account numbers assigned by IDPA in its March 5,1986, report.

Required Exhaustion Of Third-Party Resources

As previously noted, IDPA’s payment obligation for funeral and burial expenses is contingent, under applicable statutes, upon a determination by the Department that “no other resources, including assistance from legally responsible relatives, are available” to pay such expenses. (Ill. Rev. Stat. 1979, ch. 23, par. 5— 12.) When such resources exist, IDPA Rules 117.53 and 117.54 require that reductions be made against vendors’ charges (subject to “maximum allowable” charges established in section 117.50) for the value of decedent’s assets, available resources including both insurance proceeds and any other anticipated death benefits available to the estate, and amounts paid or arranged to be paid by the decedent’s legally responsible relatives. (89 Ill. Adm. Code 117.53, 117.54; formerly Rule 7.13). The resulting policy is analogous to the requirement of this Court in section 25 of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.24 — 5) and section 790.60 of the rules of this Court (74 Ill. Adm. Code 790.60), that all administrative remedies and sources of recovery be exhausted before any State liability can be determined to exist. Boe v. State (1984), 37 Ill. Ct. Cl. 72; Lyons v. State (1981), 34 Ill. Ct. Cl. 268.

IDPA identifies five accounts (nos. 17,18,19, 20 and 21 as listed in its departmental report) for which it had denied payment liability due to the availability of life insurance on the decedents’ lives, the proceeds of which were in excess of the maximum allowable amounts otherwise available (under IDPA Rule 117.50) under the Department’s allowance for funeral and burial expenses of deceased public aid recipients. In each instance, the insurance policy or policies would have produced benefit payments sufficient to pay the charges as submitted by the funeral home and cemetery vendors to IDPA.

In five instances, account nos. 14, 20, 21, 22 and 25, IDPA made payment to the vendors in amounts less than their charges, as a result of having reduced such charges by the amount of a lump-sum death benefit which the decedents’ estates were entitled to receive under the Federal Social Security Act. In another instance, account no. 13, the decedent had been a nursing home resident and had left a personal fund trust account balance with the nursing home which, when combined with IDPA’s payment, would equal the vendors’ charges for the decedent’s funeral and burial.

With respect to account 9, a person (other than a legally responsible relative of the decedent) had filed a claim with IDPA for reimbursement for funds expended by that person for the costs of the decedent’s funeral and burial, pursuant to IDPA Rule 117.54 (89 Ill. Adm. Code 117.54). The vendor was so notified by IDPA, and did not thereafter pursue payment from the Department. In another case (account 11), the same vendor invoiced its entire charge to IDPA, without crediting the payment which it had received from the decedent’s legally responsible relative. IDPA rejected its claim for that reason in July 1982, and the vendor failed thereafter to submit a corrected bill of its charges within the time permitted by IDPA Rule 117.55(c) (2) (89 Ill. Adm. Code 117.55(c)(2), formerly Rule 7.13). The vendor had been paid in full for account 5, over two months prior to the filing of the claim in No. 83-CC-2353.

In each case where existing resources were available (nos. 13,14,17,18, 19, 20, 21, 22 and 25), such resources were sufficient, alone or when combined with IDPA’s payments, to make available the maximum allowable amounts authorized by IDPA’s program.

Proper Claim-Form Preparation

Funeral home, cemetery and other vendors are instructed to invoice their funeral and burial claims to IDPA, using Department invoices (here, form DPA 29) designed specifically for that purpose. In doing so, they are to complete the claim form in accordance with instructions appearing on the reverse side of the form. Accounts 1, 4, 6, 7, 12 through 15, and 16 (no claim was ever received by IDPA for the latter account) are among the examples cited by the Department of claim forms not prepared by the vendors in compliance with such instructions.

These instructions require the vendor who actually rendered the services to be identified by name, address and Federal employer identification number, and for such vendor to sign and date the claim form being submitted. Vendors are not free to disregard these instructions by omitting required entries on the form, by substituting as vendor the name of a person or firm who did not render the service, or otherwise by failing clearly to identify the person or firm who actually rendered the service and is entitled to payment for it. Each entry is to be completed as instructed, so that Respondent’s officials may be assured that the proper vendor will be paid for that vendor’s services.

Details of these vendors’ departures from the instructions are noted in IDPA’s report. For example, the purported assignments of ownership of these accounts could have been accomplished by a separate document submitted with the claim, and did not excuse the preparer from fully identifying the vendor on the form itself, in compliance with related instructions. As to each of the nine accounts referenced above, we find that the vendors failed to comply with such instructions and IDPA Rule 117.55.

Vendor Disqualified From Rendering Services

IDPA denies all liability for the funeral and embalming services as represented in accounts 1 through 8 (except account 5 which was paid), because the vendor’s licenses to perform such survices had been suspended for cause, effective July 21,1982, pursuant to sections 1 — 14 and 2 — 10 of the Funeral Directors and Embalmers Licensing Act of 1935 (Ill. Rev. Stat. 1981, ch. Ill, pars. 2813, 2824). All of these services, as invoiced, were performed during the six-month period when this vendor’s licenses were under suspension. The vendor was thus prohibited by law from engaging in the occupations of funeral directing and embalming during this period.

The Court agrees with the Department’s refusal of payment for these services, and finds the denial of liability to be mandated by law. Respondent’s suspension of the vendor’s licenses meant that he had no certificate of State registration to engage in these occupations during the suspension period. His continued practice of such activities without State authority was thus unlawful. (Ill. Rev. Stat. 1981, ch. Ill, pars. 2803, 2816.) Moreover, the vendor, having failed to comply with licensing requirements applicable to his occupations, may not maintain an action for payment of his services rendered while his licenses were under suspension. Tovar v. Paxton Community Memorial Hospital (1975), 29 Ill. App. 3d 218, 330 N.E.2d 247.

Noncompliance With IDPA’s Invoicing Deadlines

IDPA Rule 117.55 (89 Ill. Adm. Code 117.55) requires that vendors’ funeral and burial claims be received by the Department within 180 days following a decedent’s death in order to be entitled to payment consideration. IDPA denies liability as to accounts 1, 10, 16, 23 and 24, by reason of the vendors’ failures to comply with this invoicing deadline. Account 23 involves funeral services performed in 1974 and account 24 presents a claim for 1975 funeral services. Yet the vendor’s Court complaint allegations indicate that these two accounts were first invoiced to IDPA in 1982.

IDPA Rule 117.55 also provides that, for payment consideration, the rebill invoice of a previously invoiced account must be received within 90 days after the vendor’s initial invoice was disallowed and returned for correction or completion. IDPA denies liability as to accounts 9, 10, 11, 12, 15, 16, and 18 through 22, due to vendors’ failures to comply with this rebill deadline.

Section 11 — 13 of the Public Aid Code (Ill. Rev. Stat. 1983, ch. 23, par. 11 — 13) provides that a vendor’s right to a vendor payment may be “limited by [IDPA’s] regulations.” We have previously recognized such limitations. See, e.g., Riverside Medical Center v. State (1986), 39 Ill. Ct. Cl. 301, and the decisions therein referred to, as they relate to the initial invoice and rebill deadlines imposed by IDPA’s rules upon another category of vendors. We find that Rule 117.55’s deadlines, applicable to funeral and burial vendors’ claims in behalf of deceased public aid recipients, are entitled to similar recognition and enforcement. And we find that IDPA was correct in refusing payment to those vendors whose accounts are identified as nos. 1, 9,10,11, 12, 15, 16, and 18 through 24.

Court Actions Barred by Section 439.22’s Time Limitation

Section 11 — 13 of the Public Aid Code also imposes limits on the time within which those seeking vendor payments must commence their actions before this Court, in order to avoid the one-year bar provided for in section 22 of the Court of Claims Act. (Ill. Rev. Stat., ch. 37, par. 439.22; Methodist Medical Center v. State (1983), 35 Ill. Ct. Cl. 871, 872.) IDPA contends that vendor Rawls Mortuary’s actions on account nos. 10 and 12 (a part of No. 83-CC-2353) were barred by this statutory limitation.

The dates pertinent to these accounts are as follows:

The Court claim which included these accounts was not commenced until May 16, 1983, more than one year following IDPA’s initial disallowance of the vendor’s administrative claims.

At the time No. 83-CC-2353 was filed, section 11— 13 of the Public Aid Code provided as follows:

“[vjendors seeking to enforce obligations of ° " [IDPA] for goods or services (I) furnished to or in behalf of recipients and (2) subject to a vendor payment as defined in Section 2 — 5, shall commence their actions 0 ° “ within one year next after the cause of action accrued.” (Ill. Rev. Stat. 1983, ch. 23, par. 11 — 13.)

A vendor’s cause of action accrued upon IDPA’s written notification to him that his claim (invoice seeking an administrative payment) had been disallowed for payment by the Department. The date of IDPA’s notice, the accrual date, initiated the running of the one-year limitation period during which the vendor was obligated to commence his Court action in respect to the previously invoiced services. Such accrual did not preclude the vendor from correcting his prior invoice errors or omissions by preparing a rebill invoice to IDPA within the time permitted by subsection (c)(2) of IDPA Rule 117.55; however, it is IDPA’s position that the running of the one-year limitation period was not suspended, nor was the period extended in duration, as a result of the vendor’s submittal of one or more rebill invoices.

Upon applying these statutory limitations to the accounts here challenged, the Court finds that the Court action had already been barred as to each of these two accounts when it was filed on May 16, 1983. In each instance, the vendor commenced his Court action more than one year following the respective dates on which IDPA had given written notice of its refusal to pay his administrative claims.

It is therefore hereby ordered that Respondent’s motion to dismiss each of the accounts presented in Nos. 83-CC-2353, 83-CC-2354 and 83-CC-2356, on the grounds as addressed above in this opinion, is hereby granted and said 25 accounts are each hereby dismissed with prejudice.


author: Raucci, J. Raucci, J.

text:
    (No. 83-CC-2822
    Silvio Giovanetto, Margaret Giovanetto and Nellie Krueger, Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 11, 1989.

      Opinion filed May 30, 1990.

    Lambrüschi, Young & Associates (Keith L. Young, of counsel), for Claimants.
    Neil F. Hartigan, Attorney General (Daniel Brennan, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

This matter comes before the Court upon the joint stipulation of the parties hereto. This claim sounds in tort and is brought pursuant to section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1981, ch. 37, par. 439.8(d)).

Claimant, Nellie Krueger, sustained bodily injuries when she fell through a railing at a concession stand maintained by the Department of Conservation at Matthiessen State Park in La Salle County, Illinois.

We note that the parties hereto have agreed to a settlement of this claim, and that Respondent agrees to the entry of an award in favor of Claimants in the amount of three thousand five hundred dollars ($3,500.00.)

Based on the foregoing, Claimant, Nellie Krueger, is hereby awarded the sum of three thousand five hundred dollars ($3,500.00) in full and final satisfaction of these claims.

OPINION

Raucci, J.

On October 3, 1982, the Claimants Silvio and Margaret Giovanetto were with friends at the Matthiessen State Park. The Giovanettos, along with five other couples, were spending the day at the park, which has hiking trails and forest preserves. In the early afternoon, the group decided to take a break and get some refreshments at the concession stand. The Claimants and their friends had purchased their drinks and were leaning against a railing which fenced off a pedestrian area, and below which was the beginning of a ravine. The railing broke and the Claimants fell off the walkway and were injured. Claimants’ exhibits include photographs of the area where the Claimants fell and were injured. Respondent has admitted its liability to the Claimants. The only issue presented here is the amount of compensation to be awarded to the Claimants.

Silvio Giovanetto suffered a facial injury and a very small scar on his face as a result of his fall. He was treated and released from an emergency room on the date of the incident and there is no medical evidence to connect any other injuries with the fall on October 3, 1982. An award of $1,250 will be granted to him.

The injuries of Margaret Giovanetto, however, present a significantly different situation. Mrs. Giovanetto was 50 years old at the time of this incident and there is no evidence in the record to suggest that she was in anything but good health on the date of the accident. Through her testimony and that of her husband she established that she was very active up until the date of this incident. She worked at a physically demanding job, accompanied her husband on over-the-road trips on occasion and did numerous household chores. The injuries Mrs. Giovanetto suffered in the fall changed all of that. She was diagnosed at the hospital as having suffered displaced fractures of the transverse processes at LI, L2, L3, L4 and L8, and a displaced fracture at L2. The transverse process is a part of the spinal column which projects laterally from the spine and serves for muscle attachment. The fracture of these can cause loss of control of the muscle and, therefore, control of the spine. She was hospitalized for 10 days after the fall for the purpose of continual bedrest. The Claimant’s ability to move and bend was significantly reduced as a result of these fractures. Subsequent to her hospitalization, Mrs. Giovanetto continued treatment with an orthopedic doctor for approximately three years who eventually recommended that she be evaluated by a pain clinic. In addition to the fractures which she suffered, the Claimant also suffered the aggravation of a preexisting cervical condition which caused her a certain amount of pain and disability.

Mrs. Giovanetto did, in fact, return to work eventually but found that her ability to work had been greatly affected by the injuries she had suffered. She had been a school bus driver for some time prior to the accident and eventually quit driving the school bus primarily because of her injuries. For a period of three months after the accident she wore what is commonly referred to as a “jewet brace.” This brace which she wore continually, except for periods of sleep, was replaced by a corset which she wore for another three months and subsequent to that as often as her pain dictated. She last wore the brace in 1984. Mrs. Giovanetto engaged in traction, heat treatments and therapy when her orthopedic doctor recommended such, bought a waterbed which was supposed to help relieve her pain, and significantly reduced all of her household activities as a result of her continuing back problems. In addition, she ended her trips with her husband because of the problems traveling over the road caused to her back. At the present time, Mrs. Giovanetto’s primary physical activity is walking. She has not resumed her household activities. It was her husband’s observation that her condition has not improved in any significant fashion since the period of time shortly after the accident. Mrs. Giovanetto was 50 years old at the time of the accident. It has been eight years since the incident and government statistics suggest that she will live approximately 20 years. The issue to be determined here is the compensation to be awarded to Mrs. Giovanetto for the period of eight years since the accident and a reasonable sum for the period of time which Mrs. Giovanetto will likely live with these injuries.

In evaluating the damages to be awarded, this Court must consider the following categories of damages: medical expenses, lost income, pain and suffering, and disability. Claimant has sufficiently demonstrated by the evidence that her life has been significantly changed for the worse as a result of the injuries she suffered, that the injuries were of such a nature as to cause her considerable amounts of pain and suffering, and that her lifestyle has been limited by these injuries. We find that she should be awarded $75,000.

It is ordered, adjudged and decreed:

1. Claimant Silvio Giovanetto be and he is hereby awarded $1,250 in full and complete satisfaction of his claim.

2. Claimant Margaret Giovanetto be and she is hereby awarded $75,000 in full and complete satisfaction of her claim.


author: Montana, C.J.

text:
    (No. 84-CC-0226
    Robert Baker and Carol Baker, Claimants, v. The State of Illinois, Respondent.

      Opinion filed July 28, 1989.

    Sorling, Northrup, Hanna, Cullen & Cochran, Ltd. (Patrick V. Reilly, of counsel), for Claimants.
    Neil F. Hartigan, Attorney General (Claire Gibson, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This claim arises out of a motorcycle accident which occurred on August 7, 1981, involving Claimant Robert Baker. Mr. Baker alleges Respondent was negligent in its care and maintenance of the exit ramp on Interstate 70 near Route 51 in Fayette County, Illinois, in that it allowed objects to accumulate on the exit ramp and that he was injured as a direct result of this negligence. Claimant Carol Baker, who was at that time the wife of Robert Baker, seeks compensation for loss of consortium.

The evidence in the case consists of the following: a joint stipulation filed October 2,1985, a joint stipulation of September 19,1985, labeled Joint Exhibit 1, transcript of proceedings of September 19, 1985, before the Commissioner, the deposition of Robert Baker taken September 12,1985, the deposition of Dalton Alexander taken November 13, 1984, the deposition of Norman Hagy taken November 13, 1984, Claimant’s Exhibit A dated September 19, 1985, Claimant’s Exhibit A-l dated September 9,1985, and Exhibit B (five pictures).

The Claimants waived the right to file a brief and notified the Commissioner that they would also not file a reply brief. Respondent has filed a brief and the Commissioner has duly filed his report.

The parties have stipulated in Joint Exhibit 1 that on August 7,1981, Robert Baker had a one vehicle accident on the Interstate Route 70 exit ramp, eastbound onto U.S. Route 51 in Fayette County, Illinois. The State of Illinois was responsible for the maintenance of this particular roadway. Robert Baker was injured in the accident and received treatment at several hospitals. The hospital bills have all been paid by a collateral source. Robert Baker was married to Carol Baker at the time of the accident, but they divorced approximately four months after the accident.

The parties also stipulated that Robert Baker received an open shaft fracture of his right femur. He had surgery in September of 1981. A Kuntscher rod was placed into the right femoral shaft for fixation. The fracture healed. In 1983 the rod was removed. He also had injuries to his left ankle, left thigh, abrasions on the chest and right flank, burn abrasions of the right shoulder, deep lacerations of the elbow, a dislocation of the first metacarpal joint and dislocation of the trapezium bone of the left hand and lacerations and a deep penetrating wound of the left thigh. He required substantial medical treatment, including surgery. Mr. Baker had considerable pain and was unemployable at the time he was discharged from the hospital on September 28, 1981. Exhibits A and A1 indicate the extensive medical treatments and billings.

Mr. Baker’s testimony indicates he had driven the motorcycle from Missouri and had been riding for about two hours before the accident. He had driven this motorcycle before and had some experience riding other motorcycles. His friends were about 150 yards behind him in a car. As he approached the ramp it was clear. As he got into the curve, he saw gravel from the left side to the right side and it was very thick all over the roadway. It was not in mounds, but was thick enough to cover the roadway completely. He was only five feet away from the gravel when he saw it. He was in the center of the road and was only going 30 miles per hour. As soon as he hit the gravel the back tire skidded as he tried to slow down. He lost control and started going left off the road. He did not lose consciousness, but remembers little else. He does remember the gravel was grayish as if it was dirty and had been there for some time.

As to his injuries, Mr. Baker testified he had a broken right femur where a steel rod was inserted from the hip to the kneecap, a left thumb that had been turned completely around, two deep lacerations on each thigh where muscle was removed, an exposed elbow, and a badly sprained left ankle. He still had pain in the legs, hip and thumb as of September of 1985. After the accident, he was on crutches for six months. He was out of work for about 15 months and received unemployment or disability payments for only 26 weeks during that time. The payments were $120 per week. The Army and Blue Cross/Blue Shield paid all of his medical bills.

Mr. Baker also testified that Claimant Carol Baker had refused to pick him up from the hospital and only visited him once in the hospital to tell him she was starting divorce procedures.

Norman Hagy testified he worked for the Department of Transportation (DOT) in August of 1981. He was a lead worker in Fayette County, Illinois. Part of his job was road patrol and debris cleanup to see that no debris is on a highway. If there was debris that he saw, he would have it removed. He drove the exit ramp in question on almost a daily basis in August of 1981. Some days he would drive over the ramp four or five times. He was aware of no reports of debris on the exit ramp in August of 1981. He did identify what possibly could be rock off the roadway in some of the pictures.

Dalton Alexander testified that he too worked for DOT in August of 1981. His work was exactly like Mr. Hagy’s work. As part of his work he oversaw road patrol and cleanup on the exit ramp in issue in this case. He drove the ramp up to six times a day. If he had seen crushed rock on the ramp, he would have called a crew in to get it off. He had seen rock on the different roadways he patrolled which had fallen out of trucks or been knocked on the roadway from accidents. He would remove crushed rock from the shoulder if he saw it. He does not remember ever sweeping any crushed rock off this exit ramp.

The four pictures known as Exhibit B show the exit ramp in question. There appears to be some rock off the roadway and at the far end of the shoulder and onto the grass. The roadway appears clear. The parties stipulated that these pictures show the exit ramp in substantially the same condition as on the date of the accident.

The State of Illinois is not an insurer of the condition of its highways under its maintenance and control, but it does have a duty to use reasonable care in maintaining roads under its control. (Ohms v. State (1975), 30 Ill. Ct. Cl. 410.) The exercise of reasonable care requires the State to keep its highways reasonably safe. It is the duty of the State to maintain its highways so that defective and dangerous conditions likely to injure persons lawfully on the highways shall not exist. (Moldenhauer v. State (1978), 32 Ill. Ct. Cl. 514.) To be in a dangerously defective condition, the highway must be in a condition unfit for the purpose it was intended. (Allen v. State (1984), 36 Ill. Ct. Cl. 24.) To be held liable for negligence, the State must have actual or constructive notice of a dangerous condition and permit the dangerous condition to exist without warning to the motoring public. Clark v. State (1974), 30 Ill. Ct. Cl. 32.

A case similar to this one is Wagner v. State (1978), 32 Ill. Ct. Cl. 50. In Wagner, an experienced motorcycle driver was killed in an accident on an exit ramp. The Claimant alleged that the State was negligent for allowing gravel to accumulate on the exit ramp which caused the accident. The police officer at the scene observed a significant amount of gravel on the ramp. In the present case, there is an issue as to whether there ever was any gravel on the ramp. The Court in Wagner found an absence of proof as to how long the gravel had been there, so there was no evidence upon which to charge the State with notice of its existence. The case at bar is devoid of any evidence that the State had notice of any allegedly dangerous condition of debris on the roadway. In fact, two witnesses who traveled the exit ramp on a daily basis looking for debris could not remember any.

Since it has not been shown that the State had actual or constructive notice of any debris on the exit ramp, if in fact there was any, we find that with regard to Robert Baker this claim must be denied. We further find Carol Baker’s count for loss of consortium must also be denied.

Based on the foregoing, it is hereby ordered that this claim be, and is hereby denied.


text:
    (No. 84-CC-0295
    Edwards Farm Supply Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 29, 1989.

    James L. Ayers, for Claimant.
    Neil F. Hartigan, Attorney General (Charles L. Palmer, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This claim was initiated by the July 26, 1983, filing of a complaint by the Claimant, Edwards Farm Supply Co. The Claimant sought $45,000 in damages based on the Respondent’s failure to award contract No. R-045 to Claimant as the lowest responsible bidder. The claim was tried before Commissioner Robert Frederick. Both sides have fully briefed all issues and Commissioner Frederick has duly filed his report. Oral argument was heard before the judges of the Court of Claims in January of 1989.

The Claimant is a corporation whose primary business is selling farm chemicals and fertilizers and its president is Larry Edwards. The University of Illinois (University) operates certain large farms in and about Piatt County, Illinois. Each year the University requests bids for the fertilizers to be applied in the fall.

Edwards had been a successful bidder for the University’s business for years. In 1981, Edwards obtained the fertilizer contract. In 1982, Edwards again made a bid on the fertilizer contract which was known as proposal no. R-045. The bid of Edwards was $67,552.20, but included language as follows, “Price includes a 10% cash discount if payment is made within 15 days of billing.” The company with the best fertilizer bid usually also gets the University’s limestone bid.

Mr. Edwards testified that Exhibit 1 was a copy of the bid Edwards made for the fertilizer contract for 1982, which is the contract at issue in this cause. Exhibit 4 was a copy of Edwards’ successful bid for the prior year of 1981. Edwards had successfully completed the 1981 contract. Edwards used a 15-day cash discount of 10$ to all customers. This discount was added to and included on the 1982 fertilizer bid. This language did not appear on the 1981 bid.

After Edwards made the 1982 bid, he waited until the date of opening, August 31,1982, and as he testified he usually did, he called Mr. Reuter’s office at the University. Mr. Reuter was the purchasing agent and was the person Edwards usually talked with. However, on August 31, 1982, when he called the University as to the 1982 bid, Mr. Reuter had already left the office for the day and he spoke to a Mr. Sapoznik who was also a purchasing agent. Edwards wanted to know who was the lowest bidder on the 1982 fertilizer contract. Edwards testified that Mr. Sapoznik stated that Mr. Reuter was away from his desk, but he would look and see if the papers were on his desk. They were and Mr. Sapoznik read Edwards the figures. Mr. Sapoznik then told Edwards it looked like he was the successful bidder and congratulated him.

After this call, Edwards had no contact with the University in reference to this alleged contract until sometime in September when he observed a competitor supply the fertilizer Edwards thought he would be supplying. Upon calling the University, Edwards was told he was not the successful bidder because the University could not pay within time to qualify for the cash discount. Without the 10$ discount, Edwards no longer had the lowest bid.

Edwards testified that in the past, when the University went beyond the 15 days for payment, he still gave the discount even up to two or three months. He testified that in 1981 the bill went out December 9,1981, and he deposited the check on December 21,1981.

For the 1983 bid, the State changed the form to make all bids net 30 days after receipt of merchandise or delivery of invoice voucher, whichever is later.

Mr. Edwards calculated his damages in Exhibit 6. He calculated his lost profits and interest lost at $11,687.65. He had to store the product and did not dispose of it to others until the spring. He also figured into that amount the total lost profits on what he thought tenant farmers would have purchased if he had received the master contract. Edwards usually received the tenants’ business when he received the University contract in prior years.

On cross-examination, Mr. Edwards admitted he had not used the discount language in his 1981 bid and he had never used the language “Price includes a 10% discount if payment is made within 15 days of billing” before on any bid to the University. This language would add a substantial amount to the contract price if payment was not made within 15 days. In the past, the University had paid Edwards only once in less than 30 days.

Mr. Reuter, the buyer for the University, testified that they are bound by regulations in purchasing, that they could reject all bids, and that no contract exists until a purchase order is sent out by the University. No purchase order was sent to Edwards so there was no contract. Mr. Reuter calculated the bid at $75,058 if payment was not made within 15 days of billing. It was the consensus of opinion by University regulators that payment could not be made in 15 days. The contract was awarded to Monticello Ag Center which bid $71,778 and that bid was determined to be the lowest and best bid. Mr. Reuter specifically found the Edwards bid to be unclear and too contingent based on the discount if payment was made in 15 days. The University system is such that obtaining approvals for payment within the bureaucratic process takes more than 15 days.

John W. Gomperts, the director of purchases for the University in 1982, testified he did not approve Edwards’ bid and that Edwards’ bid was not a cash discount as defined in Exhibit 13, section 2 definitions as a cash discount. A cash discount is a discount from the total amount if the invoice is paid within a specified number of days. Edwards’ bid had an add-on to the total if the invoice was not paid within a specified period of days.

Because the college of agriculture at the University had its own business office, had the use of Federal funds, trust funds, and State funds, it would most likely take more than 15 days to make a payment. While it was possible a bill could be paid in 15 days, it was very impractical because the University had at least 40,000 purchase orders a year with up to 10 times that many invoices to process.

Robert Baker, the assistant director of purchases, testified as to the process of paying bills relating to the Allerton Trust Farms. Once the bill is received by accounts payable, it is forwarded to the agriculture accounting office. From there, the bill is forwarded to Professor Don Smith who manages the University Trust Farms and who would verify the quantity and quality of the materials received and approve the payment. The bill would go back through the agriculture accounting office and then back through the accounts payable section of general accounting. There a check would be prepared and the bill paid. In reviewing the University’s history in paying Edwards prior to 1982, Mr. Baker testified only once was payment made in less than 30 days and that was 20 days. The decision to deny the bid to Edwards was thoroughly discussed and legal advice was obtained from the University counsel.

Mark Sapoznik testified that he was a purchaser for the University of Illinois on August 31, 1982. He answered a phone call for Mr. Reuter who was not available and talked to Mr. Edwards. Mr. Sapoznik looked at the bids on Mr. Reuter’s desk and read the numbers on the bids. Mr. Edwards asked if Edwards’ bid was the low bid and Mr. Sapoznik told him that if payment was made in a certain amount of days his would be the low bid. He told Edwards he was the apparent low bidder. After several inquiries by Edwards, he testified he may have said, “You are the low bidder.”

Mr. Sapoznik further testified he never told Edwards to start fulfilling the contract and never stated the contract had been awarded to Edwards. He only read off raw numbers. He told Edwards to contact Mr. Reuter, the buyer. Mr. Sapoznik testified he was not involved in this bid and made no decisions involving this bid. He had never dealt with the purchase of fertilizer to the farms. He did, however, have the delegated authority to issue a purchase order for this fertilizer.

In rebuttal, Mr. Edwards testified that the 15 days meant working days and not calendar days, but working days is not stated on the bid. The actual bid sheet states calendar days.

Purchases by the State Systems Universities of Illinois are subject to the provisions of the Illinois Purchasing Act (Ill. Rev. Stat., ch. 127, par. 132 et seq., as amended). Purchases are also regulated by Regulations Covering Procurement and Bidding at State Systems Universities of Illinois. These regulations were admitted in evidence as Joint Exhibit 13. Several sections of that document are particularly relevant in this case and are as follows:

“(a) Section 12(e) Bid speaks for itself. If the person reading the bid makes an error, the figure given in the bid shall govern.
(b) Section 14(a) Lowest and best bid. The awards will be made to the lowest bidder, considering price, responsibility and capability of bidder, availability of funds, and all other relevant facts, provided the bid meets the specifications and other requirements of the bid information ® * *
(c) Section 14(b) Cash discounts. In determining the lowest bid, cash discounts, when stated separately, will be taken into account, unless stated otherwise in the bid solicitation form.
(d) Section 2(g) “Cash discount is a discount or an allowance deductible from the total amount of the invoice for payment within a specified number of days.”
(e) Section 8(d) Unit and total prices. The price for the units specified in the bid shall be clearly shown for each individual item. Only one unit price shall be quoted for each item. The total price for the quantity requested must also be shown. In the event of discrepancy, the unit price shall govern unless otherwise expressly stated in the bid document.
(f) Section 15(a) Rejection of bids. Any bid which does not meet the requirements of the bid information and does not comply with these regulations may be rejected.
(g) Section 16(a) Binding contract with University purchase order. After the lowest and best acceptable bid has been determined, the University will send the successful bidder a purchase order or a formal contract accepting his bid.
(h) Section 16(b) Binding on bidder. The University’s acceptance of a bidder’s offer will create a binding contract covering the following:
(1) All the specifications, terms and conditions in the bid information;
(2) The provisions of these regulations;
(3) The bidder’s price and terms of payment (Emphasis added).
(i) Section 24(d) Computation of cash discounts. If the contractor allows a cash discount, the period of time in which the University must make payment to qualify for the discounts will be computed from the date the University (1) receives the invoice-voucher (correctly filled out) or (2)
receives and accepts the commodities or equipment, whichever is later O O O ”

The bid in the present case was subject to these regulations. If Edwards’ bid had been accepted and the University did not pay within 15 days, Edwards could demand and be entitled to $75,058 instead of $67,552.20. The bid by Edwards was confusing in that it does not state the unit price in full or the total price in full, but states those prices in terms of including the 10% discount. While the people of the State of Illinois would seem to have been best served by accepting this bid and walking the bill through the process for payment within 15 days, the evidence is that with the funding and bureaucratic setup, payment within 15 days was impractical and very unlikely.

Claimant seeks this Court to imply a contract by the oral statements of Mr. Sapoznik where the regulations require a written purchase order. Implied contracts with State entities are looked upon with disfavor. (See Agles v. State (1984), 37 Ill. Ct. Cl. 134.) The only time this Court has approved oral and implied contracts is when the services provided were of an emergency nature. (Agles, supra.) Such is not the case here.

While Mr. Sapoznik had apparent and even actual authority to contract, at most he told Edwards that his was the lowest bid. He did not tell Edwards he was awarded the contract and did not tell him he had the lowest and best bid. The regulations require awarding the contract to the lowest and best bid and the evidence clearly indicates Edwards’ bid was not the best bid when the 10% penalty is added. The bid of Edwards also did not follow the regulations as it failed to set out the real unit price and real total price, less any discount. Further, the bid of Edwards did not properly state a cash discount as defined in section 2(g) and a proper unit and total price as stated in section 8(d) of the regulations governing procurement and bidding at State Systems Universities in Illinois. As the bid was defective, the officials were correct in considering the bid a no-bid.

Mr. Sapoznik did not enter into a contract with Mr. Edwards. He never told Edwards that Edwards was awarded the contract. Mr. Edwards appeared to be conversant with the State’s formal procedures of requiring a written purchase order. His reliance on Sapoznik’s oral statements is misplaced. (See Dunteman v. State (1985), 38 Ill. Ct. Cl. 51.) This Court will not authorize payment of a claim by a vendor who is unable to prove a properly executed contract with the State of Illinois. (Louge v. State (1984), 36 Ill. Ct. Cl. 283.) Such is the case here.

Based on the foregoing, it is hereby ordered that this claim be, and hereby is, denied.


author: Raucci, J.

text:
    (No. 84-CC-0687
    Gary Lutz, Claimant, v. The State of Illinois, Respondent.

      Order filed November 30, 1989.

    Robert A. Hennessy, for Claimant.
    Neil F. Hartigan, Attorney General (Jan Schaffrick, Assistant Attorney General, of counsel), for Respondent.
   Raucci, 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 advised in the premises:

The court finds that Claimant has filed a complaint seeking damages for personal injury while incarcerated at Joliet Correctional Center. The complaint further alleges that Claimant was attacked by his cellmate, Frank Alerte, while sleeping in his bunk bed.

We note that section 25 of the Court of Claims Act and section 790.60 of the rules of the Court of Claims require any person who files a claim before the Court of Claims shall, before seeking final disposition of his claim, exhaust all other remedies and sources of recovery. Ill. Rev. Stat., ch. 37, par. 439.24 — 5; 74 Ill. Adm. Code 790.60.

In Essex v. State (1987), No. 85-CC-1739, the Claimant, a patient at John J. Madden Mental Health Center, brought suit against the State after she had been sexually assaulted by another Madden patient. The Claimant, however, did not file an action against her assailant, and as a result, Respondent moved to dismiss the claim for failure to exhaust remedies pursuant to section 25 of the Court of Claims Act and section 790.60 of the rules of the Court of Claims. We, in Essex, followed the reasoning set forth in Boe v. State (1984), 37 Ill. Ct. Cl. 72, which held that a claimant “must exhaust all possible causes of action before seeking final disposition of a case filed in the Court of Claims.” (Emphasis in original.) We determined that the language of section 25 and section 790.60 “clearly makes the exhaustion of remedies mandatory rather than optional,” and that if it were to waive this requirement, “the requirement would be transformed into an option, to be accepted or ignored according to the whim of all claimants.” Boe, at 76, quoting Lyons v. State (1980), 34 Ill. Ct. Cl. 268, 271-72.

Like the claimant in Essex, Claimant in the case at bar failed to exhaust all remedies available to him prior to seeking final disposition of his claim in the Court of Claims. Accordingly, the Claimant here was obligated to bring a civil action against Frank Alerte.

Section 790.90 of the rules of the Court of Claims provides that failure to comply with the provisions of Section 790.60 shall be grounds for dismissal.

Therefore, Respondent’s motion to dismiss should be granted because Claimant has failed to comply with the exhaustion of remedies requirement mandated in section 25 of the Court of Claims Act and section 790.60 of the rules of the Court of Claims.

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


text:
    (No. 84-CC-1371
    State Employees’ Retirement System, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 11, 1989.

    State Employees’ Retirement System, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This cause coming on to be heard on the Respondent’s motion for summary judgment in favor of Respondent, and the Court being fully advised in the premises, finds:

1. This is another in the series of claims filed by the State Employees’ Retirement System (SERS) against State agencies in regard to FY 83 employer retirement contributions.

2. The Court has previously denied claims brought by SERS in excess of the amount of the reduced appropriation. Senate Bill 177, Senate Joint Resolution 22. State Employees’ Retirement System v. State (1984), 38 Ill. Ct. Cl. 262; State Employees’ Retirement System v. State, 37 Ill. Ct. Cl. 288.

3. No funds lapsed in the payroll codes for which Claimant seeks contributions except these:

CODE CLAIMED LAPSED PROBLEM

16 — 961 $148.11 $1,714.07

16 — 176 11.22 108.63 Federal funds no longer utilized

16-234 30.98 171.68 Federal funds no longer utilized

16 — 611 25.08 1,536.77 Federal funds no longer utilized

16 — 707 63.58 97,333.58 Grant expired

16 — 711 36.92 2,736.71 Grant expired

16-416 11.22 108.63 Grant no longer available

4. Because none of the Federal funds are any longer available, only 16 — 961 lapsed any funds.

5. Thus, only $148.11 can be paid to Claimant and the rest must be denied.

It is therefore ordered, adjudged and decreed that the Claimant be awarded the sum of one hundred forty-eight and 11/100 dollars ($148.11).


text:
    (No. 84-CC-1654
    Aurora National Bank, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 11, 1989.

    Tyler & Hughes, P.A. (Gordon R. Hughes, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Daniel Brennan, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

On September 21, 1977, a judgment was entered in Kane County, Illinois, in favor of Aurora National Bank and against Mr. James Simpson, an employee of the State of Illinois, in the amount of $5,852.79 plus costs.

In July of 1982, a garnishment summons and affidavit were filed. On July 9,1982, that summons was served on the State of Illinois at the Human Rights Commission, where Mr. Simpson was working for the State as a staff attorney. The wage deduction summons contained a return date of September 9,1982. That date came and passed without the filing of an affidavit or an answer to the wage garnishment summons by the State of Illinois or the Human Rights Commission. Subsequent to September 9, 1982, counsel for the Claimant made personal contact with a Ms. Beverly Dunjill, an employee of the Human Rights Commission, who told the attorney that Mr. Simpson and she had discussed this matter and that Mr. Simpson said that he would take care of the wage garnishment personally. As a result, the State did not withhold any funds from his wages. Thereafter a second wage deduction summons was served upon the State of Illinois. That garnishment was honored and monies were withheld from Mr. Simpson’s wages. After that garnishment, Mr. Simpson filed personal bankruptcy. The Aurora National Bank, having no collateral on the loan, filed a motion for judgment pursuant to the Wage Garnishment Act for a judgment in the full amount that was then due and owing under the original judgment.

A special and limited appearance was filed by the State along with a motion to quash based on the principles of sovereign immunity on the first garnishment proceeding. The Kane County Circuit Court entered an order denying the motion to dismiss the garnishment proceedings and that order was appealed. In Aurora National Bank v. Simpson (1983), 118 Ill. App. 3d 392, the appellate court reversed the judgment of the circuit court of Kane County and held that while the circuit court could issue summons against a State agency and find that the judgment creditor had a lien on an employee’s wages, it could not order monetary judgment against the State for that amount. It also held that the sovereign immunity doctrine precluded the circuit court from entering a conditional judgment against the State of Illinois in garnishment proceedings where the agency failed to enter wage interrogatories or withhold portions of the employee’s salary pursuant to a wage deduction summons. Furthermore, the court stated that section 8 of the Court of Claims Act gives exclusive jurisdiction to the Court of Claims to hear and determine all claims against the State founded upon any law of the State of Illinois including the type of claim involved in this litigation. (Ill. Rev. Stat., ch. 37, par. 439.8.) The court indicated that the Court of Claims was the proper forum for its remedy.

The issue presented here is whether the State is obligated to now pay the remainder of the debt owed by Mr. Simpson because it did not comply with the first garnishment summons.

This case presents an apparently novel issue and a unique set of circumstances to this Court. Not only was Mr. Simpson employed as an attorney by the Human Rights Commission, it was also his responsibility to deal with wage deductions which came in on other employees. As such, he was in a sensitive position which enabled him to disrupt a system specifically designed to insure payment of these types of judgments where there are funds due and owing the employee.

The Claimant in this case had complied with all of the requirements of the Code of Civil Procedure regarding deduction orders and service upon the employer. (Ill. Rev. Stat., eh. 110, pars. 12 — 801 through 12 — 808.) Section 12 — 807 specifically states:

“If an employer fails to appear and answer as required by part 8 of Article XII of this Act, the Court may enter a conditional judgment against the employer for the amount due upon the judgment against the judgment debtor.”

It is the opinion of the Court based on the language in Aurora National Bank v. Simpson that the Claimant has a legitimate claim to the enforcement of the original wage deduction order. The amount of that claim is in dispute. It appears from the record that one additional wage deduction should have been made by the Human Rights Commission prior to the bankruptcy filed by Mr. Simpson. Had the State paid that amount initially, it may or may not have induced Simpson’s bankruptcy to be filed sooner but in either event that figure is the appropriate amount for the Claimant in this matter. Given the language of section 12 — 807 of the Code of Civil Procedure (Ill. Rev. Stat., ch. 110, par. 12 — 807), it is not mandatory that the conditional judgment be enforced against the employer and, under the circumstances, it is the Court’s opinion that it would be inappropriate to do so.

Under First Finance Co. v. Pellum (1975), 62 Ill. 2d 86, 338 N.E.2d 876, the State is not immune from wage deduction proceedings under the Wage Deduction Act. Pursuant to Aurora National Bank v. Simpson, the Court of Claims is the appropriate forum to enter and enforce a conditional judgment against an employer. Under the facts as presented in this case, the judgment to be entered should only be the amount which would have been deducted from the employee’s salary prior to the time he filed bankruptcy.

It is therefore ordered, adjudged and decreed that the Claimant be awarded the sum of six hundred forty three dollars ($643.00) plus statutory interest to run from September 9,1982, in full settlement of this claim.